Why did the Arkansas AG reject True Grass's 2017 recreational marijuana amendment with the prison-release and expungement provisions?

Plain-English summary

Mary L. Berry, on behalf of the True Grass Ballot Question Committee, submitted a proposed constitutional amendment that would have legalized recreational cannabis for adults 21 or older, set up a marijuana licensing system, taxed sales at 5% state plus 2% local, and (uniquely among Berry's three 2017 cannabis submissions) added Section 8: a release-and-expungement provision for people serving sentences for marijuana-only offenses.

In June 2017, AG Leslie Rutledge rejected the popular name and ballot title because Section 8 contained a fundamental internal ambiguity. Subsection 8(a) provided for expungement of marijuana-related convictions from "all living persons" who "have served, or are currently serving, a sentence" for one of six listed marijuana offenses. Subsection 8(b) provided for release from incarceration, parole, or probation for "all persons" "whose current and only conviction(s) in which they are now serving were due to one or more of the listed offenses provided in this section 8(a) 1 through 6." The AG noted two readings:

• Subsection 8(b) clearly limits release to those whose only current sentence is marijuana-related.
• Subsection 8(a)'s expungement language could be read either as covering anyone who had ever served a marijuana sentence (regardless of other convictions) or as limited, like 8(b), to those whose only conviction was marijuana-related.

Because the effect on criminal records was a matter of "great importance to Arkansas voters," the AG would not certify a ballot title until the proposal itself resolved that ambiguity. He declined to substitute corrected language and told Berry to redesign and resubmit.

This was Berry's third recreational-marijuana submission of 2017. Each was rejected for a different ambiguity. See AR AG Opinions 2017-0073 and 2017-0076 for the other two.

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.

Common questions

Q: What did Section 8 of the True Grass amendment actually propose?
A: Two distinct things, woven together. Section 8(a) said marijuana-related convictions for any living person who served (or is serving) a sentence for one of six listed offenses (possession, possession with intent, manufacturing/distributing, distribution near schools/churches/daycares, unlawful use of a communication device for marijuana distribution, or possession of paraphernalia) would be expunged. Section 8(b) said anyone whose current and only conviction was for one of those listed offenses would be released from prison, probation, or parole.

Q: Why was the gap between 8(a) and 8(b) a fatal defect?
A: The AG read them differently. Subsection (b) clearly contains the "current and only conviction" limit. Subsection (a) does not. So a voter could read the proposal as: anyone who ever served time for marijuana offenses gets their record cleared, even if they also served time for other offenses; or only people whose marijuana conviction was their sole conviction get expungement. The two readings would produce very different real-world effects, especially for older defendants with multiple convictions.

Q: Did this rejection address whether the policy was good?
A: No. The AG was specific (as he was in every ballot-title rejection): "My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures." His statutory role under § 7-9-107 is limited to whether the popular name and ballot title fairly and intelligibly tell voters what the proposal does. The merit of legalizing marijuana is not the AG's call.

Q: Why didn't the AG just clean up the language himself?
A: Section 7-9-107(b) lets the AG substitute "a more suitable and correct popular name and ballot title" if practicable. Here, the AG concluded he could not draft a fair summary because the underlying measure itself was ambiguous. Fixing the title without clarifying the measure would just paper over the problem; voters would still face an ambiguous constitutional text after enactment.

Q: Is there a connection to the 2016 Arkansas Medical Marijuana Amendment?
A: Yes. The proposal explicitly stated it was "not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016." The medical marijuana program operated alongside whatever recreational scheme the proposal would have created. The AG did not address whether that interaction would have caused additional issues.

Q: How do these AG ballot-title decisions get appealed?
A: Sponsors can resubmit corrected versions. If they believe an AG rejection was wrong, they can also file an original action in the Arkansas Supreme Court challenging the decision. In practice, most sponsors choose redesign. Berry submitted three versions; none was certified. Recreational cannabis legalization in Arkansas continued to be advanced through other initiative campaigns over later cycles.

Background and statutory framework

Ark. Code Ann. § 7-9-107 makes the AG the gatekeeper for statewide initiative ballot titles. The Arkansas Supreme Court has built up a body of doctrine on what counts as "sufficient": the title must give voters a fair, intelligible understanding of the issues; it must not be misleading by amplification, omission, or fallacy; it must not use technical terms without definition (Wilson v. Martin); and "internal inconsistencies" in the proposed measure itself can defeat certification because the AG cannot summarize an ambiguous proposal accurately (Roberts v. Priest).

The True Grass submission ran into the Roberts v. Priest problem head-on. The expungement-versus-release ambiguity was inside the measure's own text, not a problem the AG could solve by editing the ballot title. That is why the rejection language emphasizes ambiguities "in the text of the proposed measure."

The release-and-expungement provision was the substantive innovation that distinguished this submission from Berry's other two 2017 cannabis amendments. The other two (Opinions 2017-0073 and 2017-0076) lacked retroactive criminal relief but had their own defects, the "Recreation of Marijuana" naming problem and an effective-date inconsistency.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 7-5-309, five-minute voting-booth time limit

Cases: See the Bailey v. McCuen, Lange v. Martin, Wilson v. Martin, and Roberts v. Priest line above. The standard ballot-title rejection cites the same suite of authorities; what varied was the specific defect.

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-068
June 7, 2017

Mary L. Berry, BQC Officer
True Grass Ballot Question Committee
[address redacted]
Summit, AR

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.

At the outset, 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.

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, discussed below, 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 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 living persons criminal record 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 permit the transfer of recreational marijuana to anyone under 21 years of age, (d) does not permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016; 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 8 of your proposal, "Non-violent marijuana offenders and criminal record expungement," provides in subsection (a) that certain "marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving, a sentence for being convicted of one or more of such offenses." Subsection (a) then lists six marijuana-related crimes.

Subsection (b) states that "all persons who are serving incarceration, probation, or parole in this state whose current and only conviction(s) in which they are now serving were due to one or more of the listed offenses provided in this section 8(a) 1 through 6 shall be released from incarceration, probation, or parole."

There is a fundamental ambiguity caused by the differing descriptions of the kind, and number, of convictions that would trigger expungement or release should voters adopt the proposed measure. Subsection (b) appears to state that an individual will be eligible for release from incarceration (or custodial supervision through parole or probation) if that individual only has outstanding convictions for one or more of the offenses listed at 8(a)(1-6). That is, subsection (b) limits release from incarceration, parole, or probation to offenders who are only serving a sentence (or sentences) for the following: possession of marijuana; possession with the intent to manufacture and deliver marijuana; manufacturing, distributing, and delivering marijuana; distributing or delivering marijuana in proximity of certain facilities; unlawful use of a communication device as it pertains to the distribution of marijuana; or possession of marijuana paraphernalia, as defined by Arkansas law.

Subsection (a), on the other hand, may apply a more expansive definition to the individuals eligible for expungement of marijuana-related convictions. Subsection (a) states that convictions for marijuana-related offenses will be expunged from the criminal records in this state of all living person who "have served, or are currently serving, a sentence" listed in Section 8. In light of subsection (b) and the standard for release from incarceration, it is unclear whether marijuana-related convictions would be expunged if an individual has also served, or is also serving, a conviction for offenses other than those listed in Section 8. Such a reading would be consistent with subsection (a) in the sense that individuals with marijuana-related convictions as well as non-marijuana-related convictions are nevertheless individuals who "have served, or are currently serving, a sentence" listed in Section 8. On the other hand, subsection (a) could reasonably be interpreted in conjunction with subsection (b) as limiting expungement to those individuals who are only serving (or who have only served) a sentence for one or more of the offenses listed at 8(a)(1-6).

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