Why did Arkansas reject Mary Berry's 2018 recreational marijuana ballot title for the third time?

Plain-English summary

Sponsor Mary L. Berry of the Arkansas True Grass Ballot Question Committee submitted a third version of "The Arkansas Recreational Marijuana Amendment of 2018." The proposal would have decriminalized cultivation, production, distribution, sale, transport, and use of recreational marijuana by adults age 18 and older, released and expunged marijuana-related convictions, and applied a 5% recreational-marijuana excise tax plus a 2% local sales tax.

The AG rejected the submission. The opinion was unusual in length and approach: rather than going through every defect, the AG observed that the sponsor's strategy of repeatedly adding back and deleting large blocks of previously rejected language was not solving the underlying problems. The text was "a condensed and slightly re-organized version of language I have rejected" in Op. Att'y Gen. 2017-135 and Op. Att'y Gen. 2018-005. A footnote noted that even after this round of edits, the proposal still failed to address whether non-natural persons (business entities) could engage in licensed recreational-marijuana activities, which had been a previously identified defect (Op. Att'y Gen. 2017-006).

Currency note

This opinion was issued in 2018. 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.

Arkansas voters subsequently approved Issue 4 in 2022 (which failed) and other recreational-marijuana proposals continue to surface. The Arkansas Medical Marijuana Amendment of 2016 (Amendment 98) referenced in this opinion remains in effect. Verify current Arkansas marijuana law before relying on any aspect of this 2018 analysis.

What the AG said about resubmission strategy

The AG made two pointed observations about the back-and-forth submission process:

Adding back previously deleted text does not fix anything. The opinion described a pattern: the sponsor had submitted recreational-marijuana language, the AG had rejected it (Op. Att'y Gen. 2017-135), the sponsor had then deleted large sections, the AG had rejected that too (Op. Att'y Gen. 2018-005), and now the sponsor had added the deleted sections back in a condensed form. The AG said: "Doing so will result (and did result here) in a submission that fails to address the fundamental shortcomings that have been discussed over many dozens of responses from my office."

The AG cannot draft for sponsors. The opinion cited Ark. Code Ann. § 25-16-701 (which prohibits the AG from engaging in private practice) for the proposition that the AG cannot generate ballot titles for sponsors. "Crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission." The substitute-and-certify power exists only when the submitted ballot title is materially close to acceptable and the underlying proposal is clear enough to summarize.

Specific lingering defect. A footnote singled out the "adult" definition. The current proposal defined "adult" in section 3(a) as "a person who is eighteen years of age or older" without addressing whether non-natural persons (corporations, partnerships, trusts) could be licensed to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana. Op. Att'y Gen. 2017-006 had previously rejected proposals on this same ambiguity.

What the proposal would have done

For readers studying the substantive policy, the proposed amendment had these key features at a high level:

• Decriminalized recreational marijuana for adults 18+ (note: 18, not 21 as in most state laws).
• Decriminalized marijuana paraphernalia for adults 18+.
• Defined "marijuana" by reference to the cannabis plant with greater than 0.3% THC by dry weight, "cultivated to be used as an intoxicant."
• Defined "driving under the influence of marijuana" as operating a motor vehicle on a public road with blood THC content over 14 ng/mL.
• Released from incarceration, probation, and parole all persons whose only current convictions were for enumerated marijuana-related offenses.
• Expunged all pre-effective-date marijuana convictions.
• Imposed Arkansas state sales tax, a 5% recreational marijuana excise tax, and a 2% local sales tax. Distribution of revenue left to the General Assembly.
• Preserved employer policies restricting employee marijuana use.
• Did not legalize transfer of marijuana to minors or use by minors.
• Preserved the existing medical-marijuana framework (Amendment 98).
• Did not implicitly repeal other gambling, drug, or alcohol crimes.

The 18-year-old age threshold was unusual for U.S. recreational-marijuana initiatives, which more typically use 21.

Common questions

What is "Op. Att'y Gen. 2018-005" and how does it relate to this one?
A separate March 2018 AG opinion that rejected the prior version of this same Arkansas True Grass proposal. The current opinion (2018-016) treats 2018-005 and earlier rejections as the controlling explanation of what was wrong, rather than re-walking each defect.

What does "non-natural persons" mean in this context?
Corporations, LLCs, partnerships, trusts, and similar entities. The AG flagged that the proposal's "adult" definition was a person 18+, which left unclear whether business entities could cultivate, sell, distribute, etc.

Is there current legal recreational marijuana in Arkansas?
Verify current law. As of this opinion's issuance in 2018, Arkansas had a medical-marijuana framework only (Amendment 98), and no recreational-marijuana framework.

Why does the AG mention Ark. Code Ann. § 25-16-701?
That statute prohibits the AG from engaging in the private practice of law. The AG cited it to explain why the AG cannot help sponsors draft acceptable ballot titles or amendment text.

Background and statutory framework

Ark. Code Ann. § 7-9-107 gives the AG ballot-title certification authority under Amendment 7 / Article 5, Section 1 of the Arkansas Constitution. The three options are certify, substitute and certify, or reject. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), set out the materiality and intelligibility standards. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), held that ambiguities in the proposal text independently doom the ballot title.

The opinion is procedurally noteworthy for its brevity. Most ballot-title rejections by the AG are 8-12 pages with a numbered list of defects. This one ran four pages (excluding enclosed proposal text) and rested almost entirely on the cumulative-rejection point.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 25-16-701 (Supp. 2015) (AG private-practice ban)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Op. Att'y Gen. 2017-006 (non-natural-persons defect)
• Op. Att'y Gen. 2017-135 (prior rejection)
• Op. Att'y Gen. 2018-005 (prior rejection)

Source

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

Original opinion text

Opinion No. 2018-016
March 5, 2018
Ms. Mary L. Berry, Sponsor
Arkansas True Grass Ballot Question Committee
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. 2017), of the popular name and ballot title for a proposed initiated measure.

At the outset, I wish to make clear 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 a measure when making a decision to certify or reject.

Arkansas Code Annotated 7-9-107 authorizes my office to 1) certify the popular name and ballot title of a proposed measure, 2) substitute and certify the popular name and ballot title, or 3) reject the entire submission if the "nature of the issue [] is presented in such manner that the ballot title would be misleading" to voters. The purpose of my review under section 7-9-107 is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment. In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.

When they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts "should be complete enough to convey an intelligible idea of the scope and import of the proposal." And any ballot title submitted for review should represent the sponsor's attempt to summarize her proposed amendment or act in a non-misleading fashion. While I am authorized to substitute and certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the issues presented), section 7-9-107 does not contemplate that I generate a ballot title when the one submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself, in order to then summarize its text in a suitable ballot title. Instead, crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission.

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 of 2018

Ballot Title

[The submitted ballot title and the full proposed amendment text follow in the original opinion. See the linked source for the verbatim text.]

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Your current submission has a threshold shortcoming that requires me to reject the ballot title, popular name, and proposed measure as drafted.

In response to your previous submission, I noted that large sections of text from an earlier recreational-marijuana submission had been added back to the ballot title and proposal. This was different (at least on the surface) from the submission before that, in which you deleted large sections of previously proposed recreational-marijuana language. This addition/deletion strategy is problematic, given that your proposal involves a decriminalization scheme that cannot be summarized in an intelligent, impartial, and honest manner.

Your current submission suffers from the same defect. The text of the proposed measure appears to be a condensed and slightly re-organized version of language I have rejected. And as the history of submissions, responses, and re-submissions between you and this office plainly shows, the import and complexity of your proposal make it insufficient under section 7-9-107(c) to recycle language previously identified as problematic. Doing so will result (and did result here) in a submission that fails to address the fundamental shortcomings that have been discussed over many dozens of responses from my office.

CONCLUSION

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise individual sponsors, who must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your ballot title, popular name, and proposed measure.

LESLIE RUTLEDGE
Attorney General

Enclosure

Footnote: For example, the current proposal defines "adult" in section 3(a) as a "person who is eighteen years of age or older." The current proposal does not reference any non-natural person, like a business entity. But my office has rejected previous proposals when it was "unclear whether a non-natural person could be licensed pursuant to the amendment, or whether, by referring only to a natural person, the proposed amendment prohibits business entities and other non-natural persons" from participating in recreational-marijuana activities. See Op. Att'y Gen. 2017-006.