Opinion No. 2017-081

July 21, 2017

Larry B. Morris, Sponsor
AR True Grass Ballot Question Committee
50 Crest Street
West Fork, AR 72774

Dear Mr. Morris:

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,”[1] this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities.[2] 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.[3]

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

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 by adults 18 years of age or older may not be prohibited under State law; recognizing that such activities remain unlawful under federal law; providing for the expungement of marijuana related conviction(s); defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business or person 18 years of age or older; providing that a business and anyone 18 years of age or older may cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a person or business may cultivate up to 25 mature and 25 non mature marijuana plants in a location not subject to public view without optical aid; providing that the location with more than 12 growing marijuana plants is put on record with the county sheriff’s office; permitting the transport of recreational marijuana upon any public highway or street; 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 business 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 or older; providing that the recreational marijuana that is sold in the form of edibles or drinkables (a)shall [sic] not be designed to appeal to children[,]; [sic] (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; [sic] (e) does not prohibit the State from appointing a regulatory body to regulate the cultivation, production, distribution[,] and sale of recreational marijuana pursuant to the amendment, and (f) 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.



RESPONSE

The popular name is primarily a useful legislative device.[4] 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.[5] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[6]

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.[7] 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.”[8] 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.”[9] The Court has also disapproved the use of terms that are “technical and not readily understood by voters.”[10] Without a definition of such terms in the ballot title, the title may be deemed insufficient.[11]

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.”[12] At the same time, however, a ballot title must be brief and concise;[13] 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.[14] 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.[15] 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.”[16] The ballot title must be honest and impartial,[17] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[18]

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.[19] 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.”[20] 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 proposed amendment states that “[e]ffective November 7th, 2018, the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) as it pertains to marijuana for recreational purposes shall be made lawful in every geographical area of every county of this state under Arkansas law, and shall not be an offense, or be a basis for seizure or forfeiture of assets pursuant to the Arkansas Uniform[] Controlled Substance Act.”

This section contains an ambiguity caused by the juxtaposition of the date the measure purports to be “effective” (November 7, 2018) and the passive-voice phrasing “shall be made lawful.” 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,”[21] 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. But 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, which is especially problematic given that the measure purports in Section 11 to be self-executing.

In sum, it is unclear if the proposed measure will be “effective November 7, 2018,” or if the activities listed in Section 2 “shall be made lawful” on or after November 7, 2018 by a third party. This is a fundamental ambiguity that must be resolved before a ballot title can accurately reflect when your proposal will take effect.

2. Section 4 of your proposal states that “the following acts … regarding recreational marijuana and products produced therefrom shall not be an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform Controlled Substances Act.” The “acts” are depicted in Sections 4(a) through 4(c) by the phrases “may have cultivating”; “may transport”; and “may distribute.”

First, subsections 4(a) through 4(c) are grammatically confusing as descriptors of “acts” that may become legal under your measure. For example, “may have cultivating” is not normally understood as an “act,” and the participle “cultivating” is an odd usage in this context. “[M]ay transport” and “may distribute,” likewise, are not normally understood as “acts.” Because Section 4 (“The regulation of recreational marijuana”) involves substantive changes to Arkansas criminal law, its language must be clear on a grammatical level to ensure an accurate ballot title.

Just as important, it is unclear how Sections 4(a) through 4(c) interact with Section 2. Section 4 appears to identify acts that will no longer be illegal under Arkansas law—cultivation, transportation, distribution, and sale of recreational marijuana and products produced from marijuana. Section 4 also appears to acknowledge that these acts will be subject to regulation. But Section 2 states that the “cultivation, production, distribution, sale, possession, and use” (emphases added) of recreational marijuana will be legalized at some future time.

There is a fundamental inconsistency between the acts listed in Section 4 and those listed in Section 2. Given that production, possession, and use of recreational marijuana are not mentioned among the “acts by any business or person eighteen (18) years of age or older,” the extent to which your proposal legalizes these activities is very unclear. This inconsistency must be clarified before I can certify a ballot title that fairly apprises voters of changes to existing criminal law.

3. Subsection 7(f) states that “[n]othing in this amendment prohibits the state from appointing a regulatory body to regulate the cultivation, production, distribution, and sale of recreational marijuana and products produced therefrom pursuant to this amendment.”

Subsection 7(f) contains multiple ambiguities. Compared to Section 2 (which includes possession and use of marijuana) it is unclear if subsection 7(f) intends, by omitting these activities, to eliminate possession and use from any potential regulatory scheme. If this is the intent, it is unclear to what degree possession and use of marijuana are legalized or subject to regulation under your proposal.

Subsection 7(f) is also ambiguous as to whether any marijuana-related activities will, in fact, be regulated. It does not affirmatively authorize regulation—it merely states that “[n]othing prohibits” regulation. Likewise, subsection 7(f) does not indicate which governmental entity might be charged with regulating recreational marijuana. It is therefore unclear if a vote for your proposal is a vote for regulation of marijuana-related activities.

It is also unclear what the phrase “pursuant to this amendment” in subsection 7(f) modifies. On the one hand, the phrase might modify “appointing,” as in “appointing a regulatory body … pursuant to this amendment.” In such a case, one would expect the amendment itself to contain guidelines as to how marijuana-related activities are to be regulated and administered. But as noted above, there is considerable confusion on this point. On the other hand, the phrase might modify “cultivation, production, distribution, and sale,” as in “to regulate the cultivation, production, distribution, and sale … pursuant to this amendment.” While Section 4 describes what could be viewed as a regulatory structure for the “cultivation, transportation, distribution, and sale” of recreational marijuana, there is (at the least) an inconsistency with respect to regulation of “transportation,” which appears in Section 4 but not in subsection 7(f).

The ambiguities found in and between Sections 7, 2, and 4 must be clarified before I can certify a ballot title that accurately summarizes your proposal for regulating marijuana-related activities.

4. Section 11 of your proposal states that “this Amendment [is] hereby declared to be … self-executing … .”

A document is self-executing if it does not require anything additional, such as subsequent legislation, to make it binding.[22] But Sections 4 and 7 of your proposal create the possibility of regulation or legislation in furtherance of your measure. Your proposal’s claim to be self-executing, while at the same time amenable to regulation and legislation, results in an ambiguity that must be resolved in order to accurately summarize the amendment in a ballot title.

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

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.[23] You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,


Leslie Rutledge
Attorney General

Enclosure

[1]See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).
[2]As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.
[3]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[4]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[5]See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term “partisan coloring,” see note 16 infra.
[6]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[7]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[8]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[9]Id. at *9, 500 S.W.3d at 159.
[10]Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167.
[11]Id., 500 S.W.3d at 167.
[12]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[13]See Ark. Code Ann. § 7-9-107(b).
[14]Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
[15]Id. at 293, 844 S.W.2d at 946-47.
[16]Id. at 284, 884 S.W.2d at 942. Language “tinged with partisan coloring” has been identified by the Arkansas Supreme Court as language that “creates a fatally misleading tendency” (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that “gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words.” (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)).
[17]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[18]Christian Civic Action Committee, note 16 supra, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted).
[19]Cf. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[20]Id.
[21]Black’s Law Dictionary 628 (10th ed. 2014).
[22]See Op. Att’y Gen. 2016-099.
[23]Ark. Code Ann. § 7-9-107(c).