Why did the Arkansas AG reject Mary Berry's July 21, 2017 cannabis amendment without going through the usual ambiguity analysis?

Plain-English summary

Mary Berry submitted a recreational marijuana amendment for AG certification on July 21, 2017, at 4:50 p.m. The same morning at 3:08 p.m., the AG had released Opinion 2017-081, rejecting an essentially identical proposal from Larry Morris of the same Arkansas True Grass Ballot Question Committee. Berry told the AG that "Larry Morris and I are working together," that her submission was "somewhat similar" to his, and that the committee did "not expect to collect signatures for two certified amendments" but was "hoping we can get at least one certified."

The AG rejected this Berry submission with an unusually short opinion. Two reasons drove the brevity:

1. Substantive identity to prior rejections. Berry's July 21 submission was a slight revision of her earlier July 7 submission (rejected as Opinion 2017-076), which itself was virtually identical to Morris's submission rejected in Opinion 2017-081. The AG had already analyzed the same defects in those earlier opinions. Repeating the analysis would have been wasted effort.

2. The parallel-track problem. When two or more identical proposals are submitted for certification, "a statewide election might well put voters to a choice between measures having the same ballot titles and popular names." That outcome would be confusing and arguably absurd. The AG asked the True Grass committee to "choose between the proposals drafted by you and Mr. Morris and submit only one going forward."

The opinion is essentially a procedural rejection. The AG was telling the committee that the office cannot keep pace with parallel-track filings of substantively identical drafts and that consolidation was required for meaningful review.

The shortened opinion does not list the underlying defects. Sponsors and readers wanting to understand the substantive grounds need to look at Opinions 2017-076, 2017-081, 2017-091, 2017-093, and 2017-097 in the same series.

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.

Background and statutory framework

The True Grass campaign. The Arkansas True Grass Ballot Question Committee submitted at least five recreational-marijuana amendment drafts in 2017 across two sponsors (Berry and Morris). Other related sponsors mentioned in Opinion 2017-084 include Jason Berry and Avalon Romane. The committee's overlapping submissions effectively asked the AG's office to review multiple parallel drafts simultaneously.

Section 7-9-107 procedure. Under Ark. Code Ann. § 7-9-107, a sponsor submits a proposed amendment with a popular name and ballot title. The AG reviews and either certifies, rejects, or substitutes corrected language. Once certified, sponsors can begin collecting signatures for ballot placement.

The statute does not directly address what happens when multiple sponsors submit identical proposals. The AG framed this as a practical problem: a single certification can only attach to one proposal, and two certified-but-identical measures would create a ballot mess.

The AG's reasoning

Substantive identity is fatal to repeat review. The AG had already rejected substantively identical proposals on the same drafting defects. Berry's July 21 submission incorporated only minor changes that did not address those defects. The AG concluded: "Because the proposal you submitted on July 21, 2017 is so similar to the proposals rejected in Op. No. 2017-076 and 2017-081, I must reject it without further comment."

The opinion is unusually short because the legal grounds are already laid out in the cited prior opinions. A reader of the True Grass cluster who has the full record sees the substantive reasoning in those earlier opinions. The AG declined to be repetitious.

The two-sponsor problem. The AG identified the deeper issue: if two sponsors are submitting identical proposals, the committee is effectively running parallel tracks to maximize chances of certification. But that approach creates a real risk of two certified, identical measures appearing on the same ballot. The AG requested that the committee pick one sponsor and one draft going forward.

This was a polite version of telling the True Grass committee to stop wasting AG office time. It was also a procedural notice that future identical resubmissions would receive the same short rejection treatment.

Common questions

Did the True Grass committee follow the AG's request?
The opinion does not say. The continuing series of rejections (2017-091, 2017-093, 2017-097) under Berry's name suggests the committee continued at least under one sponsor. The Morris track does not appear after Opinion 2017-081 in this batch.

What was the substantive defect that kept appearing?
Across the cluster, the recurring defects were: effective-date contradictions, undefined terms (carry, recreational purposes, often), age requirements for business affiliates, and grammatical problems in lists of legal "acts." Each draft reformulated some of these but introduced or retained others.

Could the AG simply have certified one of the parallel drafts and rejected the other as duplicative?
Possibly, but the drafts at issue were each independently flawed. There was no clean draft to certify. The AG's request to consolidate was about manageable review, not about which draft was best.

What happened to the True Grass cluster after this opinion?
Subsequent True Grass submissions (Berry, August 21 = Opinion 2017-091; Berry, September 6 = Opinion 2017-093; Berry, September 22 = Opinion 2017-097) all failed. None reached the ballot.

Why is this opinion in the AG's archive at all if it's so short?
Because the AG's office is statutorily required to issue an opinion in response to every certification request, even repeat submissions. The opinion provides a record of the rejection and preserves the procedural history.

Source

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

Original opinion text

Opinion No. 2017-084
August 4, 2017

Mary L. Berry, Sponsor
Post Office Box 511
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.

In the course of reviewing a sponsor's submission, my office determines, based on a close reading of the materials provided, whether the ballot title and popular name would be misleading to voters. I have engaged in this statutory review many times with respect to your proposed measures. I have also reviewed proposals submitted by individuals with whom you are cooperating, such as Larry Morris, Jason Berry, and Avalon Romane. And I have cautioned Mr. Morris and you that because your proposed measures are substantively identical, I cannot discharge my duty under Ark. Code Ann. § 7-9-107 unless your submissions are consolidated. When two or more identical proposals are submitted for certification, a statewide election might well put voters to a choice between measures having the same ballot titles and popular names.

Mr. Morris most recently submitted a proposal that I rejected in Opinion No. 2017-081. The opinion was released to him at approximately 3:08 p.m. on July 21, 2017. Later that afternoon, at approximately 4:50 p.m., you submitted a proposal under your name. You indicated that "Larry Morris and I are working together," and said you "know that [your submissions] are somewhat similar." You added that you "do not expect to collect signatures for two certified amendments" but are nevertheless "hoping we can get at least one certified."

The pending submission is a slightly revised version of the submission I rejected on July 7, 2017 in Opinion No. 2017-076. The submission analyzed in Opinion No. 2017-076 (bearing your name) was itself virtually identical to the submission rejected in Opinion No. 2017-081 (bearing Mr. Morris's name). Therefore, the proposal currently before me is substantively identical to the latest proposal submitted by Mr. Morris. Because the proposal you submitted on July 21, 2017 is so similar to the proposals rejected in Op. No. 2017-076 and 2017-081, I must reject it without further comment.

I encourage you again to choose between the proposals drafted by you and Mr. Morris and submit only one going forward. This will allow my office to consider and respond to a single ballot title, popular name, and draft amendment. It will likewise allow you and Mr. Morris to revise, as needed, a single proposal in an effort to obtain certification.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure