Did the Arkansas AG approve a 2017 ballot title for legalizing recreational marijuana under the 'Arkansas Adult Recreation of Marijuana Amendment'?

Plain-English summary

In May 2017, sponsor Mary L. Berry submitted a proposed Arkansas constitutional amendment (the "Arkansas Adult Recreation of Marijuana Amendment") that would have legalized recreational cannabis cultivation, sale, and use for adults 21 and older, with a 36-plant cultivation cap, a 5% state excise tax, a 2% local sales tax, and automatic expungement for prior marijuana convictions. AG Leslie Rutledge rejected the popular name and ballot title without substituting a corrected version.

Two reasons drove the rejection. First, the amendment text contained ambiguities the AG could not paper over with a substituted ballot title. Section 3(j) defined "Schedule VI substance" by referring to Ark. Code Ann. § 5-64-215, but that statute itself lists multiple marijuana-related substances and never defines "marijuana" in subsection (a)(1). The relationship between Section 3(j)'s "Schedule VI substance" and Section 3(b)'s "marijuana" was unclear. Second, Section 8's expungement clause, which referred to "all persons ever convicted of such offenses in his or her lifetime," had no clear antecedent and could be read to wipe every marijuana-related conviction from every criminal record in the state.

The AG also flagged a structural problem: a near-identical recreational-marijuana proposal had been submitted to her office by Larry B. Morris days earlier (see Op. Att'y Gen. 2017-056). The two proposals had the same 11 sections, the same titles, and overlapping content; the only meaningful textual difference was Berry's 36-plant cap versus Morris's 50-plant cap. Two amendments with substantively identical ballot titles on the same statewide ballot would, the AG explained, be unworkable for voters.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: ballot-title certification under Ark. Code Ann. § 7-9-107

At the time of this opinion, Arkansas required every initiated act or constitutional amendment to be submitted to the AG for certification of its popular name and ballot title before petitions could be circulated for signature. The AG's review under Ark. Code Ann. § 7-9-107 was limited to whether the popular name and ballot title accurately and impartially summarized the measure. The AG was not authorized to opine on the policy merits of a proposal.

Three things could trigger an outright rejection rather than a substitute certification: (1) ambiguities in the underlying measure that made an accurate summary impossible; (2) a popular name that gave "partisan coloring" to the proposal; or (3) a ballot title so misleading or incomplete that a voter could not make a "reasoned decision in the voting booth" (Lange v. Martin). The Berry proposal failed on (1), and the AG declined to substitute a cleaner title because the underlying ambiguities had to be fixed in the measure itself before a corrected ballot title could be drafted.

Common questions

Why did the AG refuse to write a substitute ballot title rather than just fix Berry's?

Because the ambiguity was in the proposal text itself, not just the ballot title. Where the meaning of a proposed amendment cannot be determined from its own words (here: which "Schedule VI substance" was being referred to, and whose lifetime convictions were being expunged), there is no fixed substantive content the AG can summarize. Roberts v. Priest holds that internal inconsistencies in the proposal "would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." The AG explained that she could not certify a ballot title until the sponsor first clarified the measure.

What was the problem with two identical recreational-marijuana proposals?

Berry and Morris had filed near-identical amendments four days apart, with the same 11 sections, the same titles, and content overlapping almost entirely. The only material textual difference was the cultivation cap (36 plants for Berry, 50 plants for Morris). The AG's statutory duty was to certify titles that fairly apprised voters of what each measure would change. Two textually identical amendments would, by definition, get textually identical ballot titles, which would leave voters unable to distinguish the two on a single ballot. The AG urged the sponsors to consolidate.

Did the AG say anything about the merits of recreational marijuana legalization?

No, and the opinion is explicit on this point. The AG wrote: "the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure." The rejection was strictly procedural.

What happens after a rejection like this?

Under Ark. Code Ann. § 7-9-107(c), the sponsor may redesign the measure and resubmit. Berry and Morris had the option to clean up the Schedule VI ambiguity, fix the expungement language, and decide whether to coordinate or differentiate their proposals.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG ballot-title certification)
• Ark. Code Ann. § 7-5-309 (five-minute time limit in voting booth)
• Ark. Code Ann. § 5-64-215 (Schedule VI substances)
• Ark. Const. art. 5, § 1 (Amendment 7, citizen initiative process)
• Lange v. Martin, 2016 Ark. 337 (ballot title must allow "reasoned decision")
• Wilson v. Martin, 2016 Ark. 334 (technical terms must be defined)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (omission standard, brevity rule)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies in proposal)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-060
May 23, 2017
Mary L. Berry, Sponsor
[address redacted]
Summit, AR 72677
Dear Ms. Berry:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure.

I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

At the outset, I must mention my grave concerns about the potential for certifying two (or more) substantively identical recreational-marijuana proposals. As you know, my office has been reviewing the measures submitted by Larry Morris along with your proposals. The submissions currently pending from you and Mr. Morris (yours, dated May 9, 2017 and addressed in this response, and Mr. Morris's, dated May 5, 2017) are effectively indistinguishable. Both proposals have 11 sections; the 11 sections have virtually the same titles; and the sections' content overlaps almost entirely. Based on my reading of Mr. Morris's recreational-marijuana proposal and yours, the only discernible difference is that Mr. Morris caps the number of plants a licensed person or business can cultivate at 50 plants (25 mature and 25 non-mature plants). Your proposal limits licensed cultivators to 36 marijuana plants. However, I do not believe this difference is meaningful in terms of my office's voter-initiative obligations.

I have a statutory duty to certify non-misleading ballot titles and popular names for measures proposed under Article 5, Section 1 of the Arkansas Constitution. But if proposals are no different textually, by definition their ballot titles and popular names will be identical, and I could not substitute a title for one measure that might distinguish it from the other. This would be extremely problematic for voters, who in a statewide election would see (on the same ballot) two proposed constitutional amendments or acts with identical ballot titles and popular names. Arkansas statute also requires that I ensure each ballot title and popular name fairly apprises voters of potential changes to existing law. Again, since Mr. Morris's submission and yours are effectively the same, this task would be impossible with respect to both proposals.

For these reasons, and because you have indicated to my office that you are coordinating your efforts with Mr. Morris, I urge you to consolidate future submissions. Of course, I will review any proposed measure sent to my office for certification. But if I determine that a measure is substantively identical to one I have already reviewed, I may be constrained to respond to the later submission solely by reference to the earlier proposal.

The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposal.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name: The Arkansas Adult Recreation of Marijuana Amendment

Ballot Title: An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, and parole of all persons whose current and only conviction(s) in which they are serving were for violating State laws pertaining to marijuana possession, manufacture, distribution, and delivery, possession of marijuana paraphernalia, and or [sic] the unlawful use of a communication device as it pertains to the distribution and delivery of marijuana; and the expungement of such marijuana offenses from all persons [sic] criminal record [sic] ever convicted of such offenses in the State; authorizing the use of recreational marijuana by persons 21 years of age or older; providing that a business and any resident 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a licensed person or business may have cultivating up to 36 marijuana plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% recreational marijuana excise tax and a local sales tax of 2%; permitting any person or business with a marijuana license that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any person 21 years of age or older; providing that the recreational marijuana being sold in the form of edibles or drinkables (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to recreational marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana; (c) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016; (d) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (e) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana; providing that if the State fails to begin issuing marijuana licenses, and plant tags by April 19th, 2019[,] such licenses and tags shall not be required to cultivate, produce, and sell recreational marijuana until such licenses and tags are issued by the State and 30 days is given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged.

RESPONSE

The popular name is primarily a useful legislative device. It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[s]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth." A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant." The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Without a definition of such terms in the ballot title, the title may be deemed insufficient.

Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure. The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

1. Section 3(j) states that a "Schedule VI substance" for purposes of your proposed amendment means "marijuana pursuant to The Arkansas Uniform Controlled Substance Act § 5-64-215."

Section 3(j) raises questions that cannot be resolved in a manner conducive to certifying a non-misleading ballot title. First, Ark. Code Ann. § 5-64-215 ("Additional substances to be placed in Schedule VI") contains a number of marijuana-related substances, "marijuana" at § 215(a)(1) being but one. And "marijuana" itself is not defined in subsection (a)(1) of the statute. It is thus unclear how the "Schedule VI substance" referenced in your proposed amendment equates to "marijuana" as that term appears in Ark. Code Ann. § 5-64-215(a)(1). Likewise, it is unclear if a "Schedule VI substance" in the proposed amendment would include some, or all, of the illegal substances listed at §§ 5-64-215(a)(2-6).

Second, it is unclear in what way a "Schedule VI substance" as defined in section 3(j) of your proposal relates to the "marijuana" defined in section 3(b) of the proposal. Both subsections involve or employ definitions of "marijuana," but I cannot ascertain whether "marijuana" in section 3(b) is the same as "marijuana" in section 3(j). Because consistent definitions of "marijuana" are crucial to a fair translation of your proposed amendment to a ballot title, these ambiguities must be clarified.

2. Section 8 provides that certain "marijuana offenses convicted under state law shall be expunged from each and every criminal record in the state of all persons ever convicted of such offenses in his or her lifetime ...." Section 8(a)(1) through (a)(6) then lists a series of offenses, all of which refer to a "schedule VI substance."

The phrase "of all persons ever convicted of such offenses in his or her lifetime" is ambiguous. It is not apparent what the possessive clause "of all persons ever convicted" modifies; there is no obvious antecedent for it in section 8(a). A reasonable voter could, therefore, conclude that references to "all persons ever convicted of such offenses" must be expunged from every criminal record in the state. If this far-reaching outcome is the intended result of section 8(a), it must be stated with more clarity. The significance of the clause "in his or her lifetime" is likewise unclear, given that only living persons can be convicted of a criminal offense.

Finally, the offenses listed in section 8(a)(1-6) contain references to "schedule VI substances." For the reasons discussed in Part 1, above, a "schedule VI substance" is ambiguous in the context of your proposal. Because the effect of the proposed measure on criminal convictions is a matter of great importance to Arkansas voters, these ambiguities must be clarified before I can accurately summarize the expungement requirements in a ballot title.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,
LESLIE RUTLEDGE
Attorney General

[Enclosure: full text of the proposed Arkansas Adult Recreation of Marijuana Amendment, including Sections 1 through 11 covering short title, effective date (November 7, 2018), definitions, regulation framework, product design and labeling, paraphernalia, employer rights and minor protections, expungement of non-violent marijuana offenses, taxation (existing sales taxes plus 5% excise plus 2% local sales tax), license issuance deadline of April 19, 2019, and severability/self-executing provisions. Cultivation cap: 36 plants per licensed person or business.]