Why did the Arkansas AG reject the 2017 'Arkansas Recreational Marijuana Amendment' ballot title submitted by Mary L. Berry?

Plain-English summary

Mary L. Berry, sponsor of the Arkansas True Grass BQC committee, submitted a proposed constitutional amendment to legalize recreational marijuana in Arkansas. As required by Ark. Code Ann. § 7-9-107, the AG had to certify the popular name and ballot title before petitions could circulate.

The AG rejected this submission, identifying three "fundamental ambiguities" that made it impossible to write a ballot title meeting the Arkansas Supreme Court's standards:

1. Effective date confusion. Section 2 said the amendment was "effective" November 7, 2018, but also said the listed activities "shall be made lawful" on that date. Read together, those clauses left voters guessing whether the amendment took effect on its own or required some unidentified third party to act. Section 10 made the confusion worse by saying license/tag requirements would not be enforced until licenses and tags "are issued by the state," with no clear timeline.

2. Age limits for business affiliates. Section 4(a) limited marijuana licenses to natural persons 18 or older. But businesses could also obtain licenses, and the proposal said nothing about whether owners, officers, employees, or agents of those businesses had to meet the same age threshold.

3. Expungement ambiguities. Section 8 let "any person convicted under the Uniform Controlled Substances Act" petition for expungement of certain marijuana offenses, with sentences "considered legally served." The AG flagged multiple unanswered questions: did the petitioner have to be an Arkansas resident, on Arkansas probation, sentenced by an Arkansas court, 18 or older? And what did "considered legally served" actually mean: automatic discharge for all purposes or something less definitive?

Because these were "fundamental, threshold shortcomings," the AG declined to substitute corrected language and directed Berry to redesign the proposal.

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

Under Ark. Code Ann. § 7-9-107, before petitions for an initiated act or constitutional amendment can circulate, the AG must certify the proposed popular name and ballot title. The AG has three options:

• Approve and certify the submitted name/title;
• Substitute a "more suitable and correct" name/title; or
• Reject the proposal entirely if the submission is sufficiently misleading.

The Arkansas Supreme Court has set the bar high. A ballot title must:

• Provide an "impartial summary" giving voters a "fair understanding" of the issues (Becker v. Riviere, 270 Ark. 219 (1980)).
• "Adequately inform" voters so they can make a "reasoned decision" (Lange v. Martin, 2016 Ark. 337).
• Honestly and accurately reflect the proposal's contents (Lange).
• Be free of "misleading tendency whether by amplification, omission, or fallacy" and not "tinged with partisan coloring" (Bailey v. McCuen, 318 Ark. 277 (1994)).
• Be brief and concise enough to satisfy § 7-5-309's five-minute voting-booth limit.
• Disclose any "essential fact which would give the voter serious ground for reflection."

When the proposal itself is internally inconsistent or ambiguous, Roberts v. Priest, 341 Ark. 813 (2000), holds that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself," and a workable title cannot be crafted until the proposal is rewritten.

The AG's reasoning

The effective-date problem. Section 2 of the proposal stated:

Effective November 07, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant ... shall be regulated pursuant to the provision of this amendment and made lawful in every geographic area of every county of this state under Arkansas law.

"Effective" implies operation from a fixed date. "Shall be ... made lawful" implies someone has to act to make it lawful. The AG could not tell which interpretation to summarize. Section 10 deepened the puzzle:

The provisions of this amendment requiring marijuana licenses and plant tags shall not be enforced until such licenses and tags are issued by the state, and thirty days is given in order for those engaged in such activity to obtain such licenses and plant tags.

"Such activity" was undefined; the 30-day clock had no starting trigger; and "issued" had no definition. A voter reading the ballot title could not understand when, if ever, the regulatory scheme would begin operating.

The corporate-affiliate gap. Section 4(a) said "any business or person who is a resident of [Arkansas] and is eighteen (18) years of age or older shall qualify to obtain such a license." Section 4(d) and (f) referred to "business[es]" obtaining tags and selling marijuana. The AG asked the obvious question: when a business applies, must its owners, officers, employees, and agents be 18 or older? Or could a business with underage personnel obtain a license? The text did not answer.

The expungement provisions. Section 8 said:

Upon petition to the sentencing Court by any person convicted under the Uniform Controlled Substances Act, for one or more of the following marijuana related offenses, all sentences imposed upon the petitioner by that Court for such offenses shall be considered legally served, and all convictions for such offenses expunged from the petitioner's record.

Two layers of ambiguity:

• Who counts as "any person"? Did the petitioner have to be Arkansas-connected at all? Could out-of-state residents convicted under Arkansas law file? Could minors petition?
• What did "considered legally served" mean? A complete discharge from all consequences? An advisory recommendation that the sentencing court could ignore? The text was silent.

The AG concluded these were "matters of great importance to Arkansas voters, and matters potentially of constitutional significance."

No substitute drafted. Because the ambiguities were fundamental, the AG declined to attempt a corrected ballot title under § 7-9-107(b). The AG noted that the listed ambiguities "are not necessarily all the ambiguities contained in your proposal" and that additional issues might surface in future submissions.

Common questions

What does "rejection" actually do to a proposal?
Rejection blocks petition circulation. Sponsors cannot collect signatures until they redesign and the AG certifies a new ballot title. Many sponsors submit multiple versions before getting through. The Berry submissions in 2017 are an example: Opinions 2017-091, 2017-093, and 2017-097 are all rejections of successive drafts.

Does rejection mean the AG opposes legalization?
No. The AG repeated the standard disclaimer: "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." Section 7-9-107 limits the review to whether the title accurately summarizes the proposal, not whether the proposal is good policy.

Why is "5-minute limit" relevant?
Ark. Code Ann. § 7-5-309 caps voter time in the booth at five minutes when others are waiting. Bailey v. McCuen warned that excessively long ballot titles could push voters past that limit. So sponsors face a tension: include enough detail to disclose every "essential fact," but stay short enough to read at the polling place.

What's the difference between popular name and ballot title?
The popular name is the short label (here, "The Arkansas Recreational Marijuana Amendment"). The ballot title is the longer summary the voter actually reads in the booth. Pafford v. Hall, 217 Ark. 734 (1950), described the popular name as "primarily a useful legislative device." It need not contain detail or exceptions but must not be misleading or partisan.

What was Section 8's overlap with the 2016 medical marijuana amendment?
The 2016 Arkansas Medical Marijuana Amendment (Amendment 98) had legalized medical cannabis. The Berry proposal (Section 7(f)) said it was "not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity" under that earlier amendment. The AG did not flag this provision specifically as ambiguous in this opinion.

Source

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

Original opinion text

Opinion No. 2017-091
August 21, 2017

Mary L. Berry, Sponsor
Arkansas True Grass BQC
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.

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.

Please note that my office treats each proposed measure, and any successive proposal from the same sponsor, as a discrete submission that must be evaluated on its own terms according to the standards established for popular names and ballot titles by the Arkansas Supreme Court. Because the Court's scrutiny of voter-initiated acts and amendments is exacting, my office places great importance on the rigorous analysis of every submission. Each response to a request for certification will, if appropriate, identify ambiguities that militate against certifying the proposed ballot title. However, the ambiguities discussed in a given response will not necessarily be all of the ambiguities contained in the proposal. If additional ambiguities become apparent with successive submissions, I consider it my duty under Ark. Code Ann. § 7-9-107 to identify those ambiguities regardless of whether previous responses have included them.

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 Recreational 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 marijuana and products produced therefrom for recreational purposes may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing expungement of records and completion of sentencing for persons convicted of marijuana related offenses under State law; authorizing the use of recreational marijuana by persons 18 years of age or older; providing that a business and any resident 18 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 18 years of age of 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 18 years of age, (d) does not permit anyone under 18 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 the state issues marijuana licenses, and plant tags and 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 2 of your proposal states that the "effective date" for "cultivation, production, distribution, sale, possession, and use of the cannabis plant" is November 7, 2018. The proposal states that on this date, these activities "shall be regulated pursuant to the provision of this amendment and made lawful." Section 10 of your proposal states that the "provisions of this amendment requiring marijuana licenses and plant tags shall not be enforced until such licenses and tags are issued by the state, and thirty days is given in order for those engaged in such activity to obtain such licenses and tags."

Section 2 states that on November 7, 2018, "cultivation, production, distribution, sale, possession, and use of the cannabis plant ... shall be regulated ... and made lawful." But the juxtaposition of the date the measure purports to be "effective" (November 7, 2018) and the passive-voice phrasing "shall be made lawful" creates an ambiguity. A common-sense understanding of the term "effective" would lead one to conclude that the activities listed in Section 2 will be "in operation at a given time," namely, on November 7, 2018. A reasonable conclusion would thus be that the proposed measure's substantive provisions will take immediate effect on November 7, 2018. However, the phrase "shall be ... made lawful" suggests that the measure will not take effect until a third party acts (on or after November 7, 2018) to make the activities listed in Section 2 legal. This third party is not identified in Section 2.

Likewise, Section 10 implies that an unidentified third party must act before the "provisions ... requiring marijuana licenses and plant tags" take effect. It is unclear on the face of Section 10 when (if ever) the measure contemplates that the license/plant tag scheme will become mandatory. This uncertainty is exacerbated by the provision in Section 10 that "those engaged in such activity" must be given "thirty days ... to obtain such licenses and tags" once licenses and tags are "issued by the state." I am unsure what this provision means. "Such activity" is not defined; it is unclear when the "thirty days" will start running; and the measure does not explain what is an "issued" license or tag.

In sum, whether the proposed measure will be "effective November 7, 2018," or if the activities alluded to in Sections 2 and 10 "shall be made lawful" on or after November 7, 2018, is unclear. These are fundamental ambiguities that must be resolved before I can accurately summarize the import of the measure's effective date in a ballot title.

2. Section 4(a) of your proposal states that "any business or person who is a resident of [Arkansas] and is eighteen (18) years of age or older shall qualify to obtain [a marijuana] license." Section 4(d) states that a "business ... issued a marijuana license and plant tag(s) may cultivate marijuana." Section 4(f) states that a "business ... with a marijuana license ... may sell recreational marijuana."

With respect to natural persons, it is apparent that the proposal limits marijuana licensure to those 18 years of age or older. But it is unclear if the persons associated with a business applying for a marijuana license (e.g., owners, officers, members, employees, agents) must also be 18 years of age or older. I cannot summarize the age requirements for individuals affiliated with corporate applicants until this ambiguity is clarified.

3. Section 8 of your proposal states that "[u]pon petition to the sentencing Court by any person convicted under the Uniform Controlled Substances Act, for one or more of the following marijuana related offenses, all sentences imposed upon the petitioner by that Court for such offenses shall be considered legally served, and all convictions for such offenses expunged from the petitioner's record."

This section is ambiguous on many levels, such that I am unable to substitute language in a ballot title that accurately summarizes the proposal's stance on criminal-record expungement. First, it appears that "any person" convicted of a marijuana-related offense listed in Section 8 can petition for expungement. But it is unclear if the "person" must be an Arkansas resident; incarcerated in Arkansas; on probation or parole in Arkansas; serving a sentence issued by a court in Arkansas; or indeed if the person need have any connection to Arkansas. It is likewise unclear if the "person" must be 18 years of age or older, or if minors may petition for expungement. Second, it is unclear what is intended by "considered legally served." If the sentencing court must automatically declare a qualifying petitioner's sentence(s) complete and discharged for all purposes, a result so definitive is not apparent given that the sentence may merely be "considered" served. These are matters of great importance to Arkansas voters, and matters potentially of constitutional significance.

I will mention in closing that my office attempts to identify all ambiguities in a proposal for which a ballot title is rejected. In this case, however, I have rejected your submission because of fundamental deficiencies in the ballot title (and in the corresponding areas of the submission's text). These fundamental, threshold shortcomings preclude crafting a suitable ballot title for your proposal.

Thus, while the ambiguities noted above are not necessarily all the ambiguities contained in your proposal, they are sufficiently serious to require rejection of your popular name and ballot title. Additional ambiguities may come to light on review of any subsequent proposals. But at this time, listing additional ambiguities would go beyond the appropriate examination and certification process under Ark. Code Ann. § 7-9-107, and would be tantamount to acting as the proposal's drafter.

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