Why did Arkansas reject the 2018 marijuana initiated act that would have removed marijuana from the Controlled Substances Act?

Plain-English summary

Rebeca Rodriguez submitted a proposed initiated act for ballot-title certification. The measure was designed to remove marijuana from the Arkansas Uniform Controlled Substances Act (and to make various related changes). She submitted the popular name and ballot title under Ark. Code Ann. § 7-9-107.

Attorney General Leslie Rutledge rejected the entire submission for two intertwined defects:

1. Hidden amendments to existing law. The text of the proposed measure did not show how it would change current statutes. The actual amendments could only be determined by laying the proposal alongside the existing Controlled Substances Act and noticing the differences. Voters would not be able to perform that comparison in the ballot booth, and a ballot title cannot save a measure where the amendments are hidden in this way.

2. Misleading ballot title language. The ballot title described the measure as "remov[ing] penalties associated with the manufacturing, possession, and distribution of the Marijuana plant under state law" without explaining the collateral consequences for related laws (the Omnibus DWI/BWI Act, the AMMA's medical marijuana regulatory scheme, and others). Worse, the ballot title included a clause stating that "[n]othing in [the] act shall be construed to limit any privileges or rights of a qualifying patient, caregiver, or any licensed entity in regards to Medical Marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016." But the AMMA was not mentioned in the measure's text at all, and the proposal would obviously affect the AMMA's regulatory scheme. The clause was a fatally misleading representation about how the measure would interact with existing law.

The AG could not substitute a corrected ballot title because the underlying defects (hidden amendments, conflict with AMMA) were in the measure itself.

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.

Background and statutory framework

Ark. Code Ann. § 7-9-107 governs AG ballot-title certification. The AG can certify, substitute and certify a more suitable title, or reject the entire submission if it is misleading.

The Arkansas Uniform Controlled Substances Act (Ark. Code Ann. § 5-64-101 et seq.) classifies marijuana and prescribes penalties for manufacture, possession, and distribution. Removing marijuana from that scheme is a substantial change that ripples into numerous related laws: the Omnibus DWI/BWI Act (Ark. Code Ann. § 5-65-101 et seq.) treats marijuana impairment in specific ways, and the Arkansas Medical Marijuana Amendment of 2016 (Ark. Const. amend. 98) sets up a regulatory regime that depends on marijuana being a controlled substance.

The Arkansas Supreme Court has held that a ballot title must give voters "a clear understanding of the 'extent and import' of the proposal, so that they can 'make an intelligent choice, fully aware of the consequences of their vote.'" Where a measure changes a complex statutory scheme, the ballot title must convey those changes; otherwise the title fails the Lange v. Martin standard of enabling a "reasoned decision in the voting booth."

Why "hidden amendments" was a fatal drafting flaw

The opinion's first ground is structural. A ballot title can only summarize what's apparent on the face of the proposed measure. If the measure is drafted in a way that requires side-by-side comparison with existing statutes to discover what it actually changes, no ballot title (no matter how carefully drafted) can convey those changes briefly enough to be acceptable. Voters in the booth cannot do statutory cross-referencing. The opinion treats this as a drafting failure that the AG cannot cure.

Why the AMMA preservation clause was misleading

The second ground is more pointed. The ballot title included a clause asserting that the measure would not "limit any privileges or rights of a qualifying patient, caregiver, or any licensed entity in regards to Medical Marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016." But:

• The AMMA was not mentioned in the measure's text. So the clause was not a fair summary of the measure.
• The measure would obviously affect AMMA-licensed entities. Removing marijuana from the controlled-substances list largely obviates the need for the AMMA's regulatory scheme. Stating that the measure preserved AMMA "privileges or rights" was misleading about what would actually happen.

Under Bailey v. McCuen, language "tinged with partisan coloring" or that "creates a fatally misleading tendency" disqualifies a ballot title. The AMMA preservation clause met that standard.

Common questions

Why did the AG reject this marijuana initiated act?

Two reasons: the proposed measure's amendments to existing law were hidden (only discoverable by side-by-side statutory comparison), and the ballot title contained a misleading clause about leaving the Medical Marijuana Amendment unaffected when the measure would obviously affect AMMA's regulatory scheme.

Could the Attorney General have substituted a clean ballot title?

No. The AG can substitute a more suitable ballot title under § 7-9-107, but the underlying drafting problems (hidden amendments, conflict with AMMA) were in the measure itself, not just in the title. Substitution cannot fix that.

What is "fatally misleading" in a ballot title?

Per Bailey v. McCuen, a ballot title cannot have any misleading tendency, whether by amplification, omission, or fallacy, and cannot be tinged with partisan coloring. Under Crochet v. Priest, language "tinged with partisan coloring" includes language that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words."

How are amendments to existing statutes supposed to be drafted?

Arkansas drafting practice is to show changes to current statutes openly, not to bury them in new statutory language that requires comparison to discover the differences. The opinion treats hidden amendments as a fundamental defect that ballot-title drafting cannot cure.

What happens if a sponsor wants to legalize marijuana but preserve the AMMA?

The sponsor would need to address the AMMA's regulatory scheme directly in the measure's text, not via a "nothing shall be construed" clause that disclaims an effect the measure plainly has. The AG's rejection here was about candor with voters about consequences, not about the merits of legalization.

Citations

Ark. Code Ann. §§ 5-64-101 et seq., 5-65-101 et seq., 7-9-107, 25-16-701; Ark. Const. amend. 98; Roberts v. Priest, 341 Ark. 813 (2000); Bailey v. McCuen, 318 Ark. 277 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994); Lange v. Martin, 2016 Ark. 337; Crochet v. Priest, 326 Ark. 338 (1996); Becker v. McCuen, 303 Ark. 482 (1990); Wilson v. Martin, 2016 Ark. 334.

Source

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

Original opinion text

Opinion No. 2018-132
October 22, 2018
Rebeca Rodriguez, Sponsor

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 act designed to remove marijuana (cannabis plant) from the Arkansas Uniform Controlled Substances Act, and other purposes.

(The full guidelines, request, and analysis followed the same general framework as in other ballot-title rejection opinions: review under Ark. Code Ann. § 7-9-107, application of Bailey v. McCuen and Roberts v. Priest standards, and identification of two specific defects.)

RESPONSE

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

DISCUSSION

As a threshold matter, it is impossible to determine from the measure's text how this proposed act would amend current law. The proposed changes to the statute can only be determined by closely comparing the text of the proposed measure to the existing statute, and most voters will not be in a position to make that comparison. While the ballot title must, of course, convey the proposed changes in the law, I believe any proposed amendments to a current statute should be apparent from the face of the measure. In this case, the amendments are essentially hidden by the way the measure is drafted. And consequently, the proposal is fundamentally ambiguous.

Additionally, the ballot title submitted for my review is wholly deficient in its attempt to explain what effect your proposed measure would have on current law. The ballot title must both accurately summarize the proposed measure's text and sufficiently inform the voters about the changes in current law they are being asked to approve. Your submission fails to comply with this latter requirement.

The ballot title you have submitted attempts to inform voters about the changes under your proposed act by stating that the measure "would remove penalties associated with the manufacturing, possession, and distribution of the Marijuana [sic] plant under state law…." This language does not adequately summarize the changes you are proposing. Merely stating that the act "would remove penalties associated with [the named activities]" is insufficient to inform voters about the innumerable collateral consequences of your proposal in relation to laws ranging from the Arkansas Uniform Controlled Substances Act and the Omnibus DWI or BWI Act (and other laws relating thereto) to the Arkansas Medical Marijuana Amendment of 2016 ("AMMA"). Voters should not have to be legal experts to clearly understand the scope of the changes your measure proposes, yet that is what your proposed ballot title requires.

The ballot title you have proposed also states that "[n]othing in [the] act shall be construed to limit any privileges or rights of a qualifying patient, caregiver, or any licensed entity in regards to Medical Marijuana [sic] pursuant to the Arkansas Medical Marijuana Amendment of 2016." This language is fatally misleading. It appears to dictate or make assumptions about how the proposed act must be construed in relation to the AMMA, yet there is no mention of the AMMA in the measure's text. This language, consequently, is not a fair summation of the measure's text.

Furthermore, your proposed language would be confusing and misleading in the context of your proposal even if it were included in the text of the measure (and therefore properly included in the ballot title). It is not at all clear what it means to say that "[n]othing in [the proposed] act shall be construed to limit any privileges or rights" of persons and entities in regards to medical marijuana. Indeed, while this language conveys the impression that the proposed act would not affect such "privileges or rights," it is not clear that that is correct. For instance, the privileges and rights of licensed entities pursuant to the AMMA would undoubtedly be significantly affected by the passage of your proposed measure. It is arguable that what you have proposed essentially obviates the need for the AMMA's regulatory scheme.

In sum, the ballot title you have submitted is impermissibly misleading and wholly deficient in failing to fairly or completely describe changes the proposal would make in existing state law. The Arkansas Supreme Court has elaborated on the duty to describe the changes in law a proposal is to make. According to the Court, a ballot title will be deemed insufficient if it does not give the voters a clear understanding of the "extent and import" of the proposal, so that they can "make an intelligent choice, fully aware of the consequences of their vote."

In the case of your proposed act, the consequences of approval would doubtless be of serious concern to voters weighing the merits of the measure. But a reasonable voter will not, based on the ballot title you have submitted, be able to fully recognize all the ways your measure proposes to substantially change current law in Arkansas with respect to marijuana as a controlled substance.

Sincerely,
LESLIE RUTLEDGE
Attorney General