Opinion No. 2017-093

September 6, 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.

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 constitutional 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 proposed 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


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) from all criminal records in the State; defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business entity or person 18 years of age or older; providing that a business entity 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 18 years of age or older, or business entity 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 registered 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; (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 affect [sic] the ability of employers or to have policies restricting the use of recreational marijuana by employees, (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, purchase, transport, carry, 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.

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 1 of your proposal states that the amendment “may be cited as the ‘Arkansas Recreational Marijuana Amendment,’ ‘The AROMA,’ or [a]ny suitable popular name the Arkansas Attorney General may provide upon this Amendment’s certification … .”         

This list of alternative popular names is problematic in terms of your duties under Ark. Code Ann. § 7-9-107 as a sponsor, and my authority under the same statute to review proposals. Section 7-9-107(a) states that a sponsor must “submit the original draft [of the proposed amendment] to the Attorney General, with a proposed legislative or ballot title and popular name.” My office will then either “reject the … popular name” or “approve and certify or … substitute and certify a more suitable and correct … popular name.” Id. at § 7-9-107(b) (c).

As the proposal’s sponsor, you are obligated to “submit … a … popular name” for my review. The disjunctive list of potential popular names in Section 1 of your proposal, one of which is completely open-ended (“any suitable popular name the Attorney General may provide”), does not satisfy this threshold under section 7-9-107(a). Likewise, I am not authorized by section 7-9-107(b) to select a popular name on behalf of a sponsor. I can only “substitute and certify a more suitable and correct … popular name” in response to the sponsor’s choice of a popular name.

In effect, the list of alternative popular names in Section 1 of your proposed measure calls on me to draft a popular name. But a sponsor must submit a definite popular name for my office to consider. And Ark. Code Ann. § 7-9-107 limits my authority to approving the name submitted, rejecting the name submitted, or substituting a more suitable name for the name submitted. Thus, I must reject your proposal as written.

2. Section 2 of your proposal (“Effective date”) states that “[o]n and after November 7, 2018, the acts to cultivate, produce, distribute, sell, purchase, transport, carry, and use marijuana for recreational purposes … shall be lawful … .”

There are a number of ambiguities in Section 2 that require clarification before I can certify a ballot title or substitute a more suitable title. On a grammatical level, I am unsure of “acts to cultivate, produce, distribute,” etc., as a usage. Because “acts” is a noun, it is reasonable to expect the elements of a list starting with “acts” to be nouns as well. But what follow are verbs, in active infinitive form: “to cultivate, [to] produce, [to] distribute … .” This noun/verb construction is confusing. I cannot convert it into a ballot title that gives voters a fair understanding of what “acts” will become legal on your proposal’s effective date.

There are also terms in the list of “acts” that are inherently ambiguous because they are undefined. First, “carry” is not defined. This word has a number of meanings in plain English.[21] Without a definition of “carry” for purposes of your proposal, I am unable to summarize it in a ballot title. Second, “recreational purposes” is also not defined. The lack of a definition for this term is crucial for the reasons just stated—“recreational” means a number of things in plain English. Moreover, “recreational purposes” appears to modify the entire list of acts that would become lawful should voters approve your proposal. And “recreational” or “recreational purposes” appear a number of times throughout the proposal, including in the definitions of terms like “Marijuana” and “Use recreational marijuana.” See Section 3(d), (i). The acts and activities that your proposal would (and would not) legalize are of the utmost importance to voters, so they must be described adequately in the ballot title. Therefore, I must reject the proposal until these ambiguities are clarified.

3. 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 … .” Section 4 then lists “The Act to Cultivate and Produce”; “The Act to Distribute, Sell and Purchase”; “The Act to Transport and Carry”; and “The Act to Use.”

Please see my comments on Section 2 of your proposal, above, regarding the awkward noun/verb construction in the list of “acts,” and the undefined terms “carry” and “recreational purposes.” The need for clarification of these ambiguities applies with equal force to Section 4.

4. Section 4 of your proposal states that certain “acts by any business entity or person, eighteen (18) years of age or older, … shall not be an offense under Arkansas law … .”

With respect to natural persons, it is apparent that your proposal would affect certain “acts” undertaken by those 18 years of age or older. But if a business wished to undertake the same acts, it is unclear if representatives of the business (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.
5. Section 8 of your proposal (“Non-violent marijuana offenses and criminal record expungement”) provides in subsection (a) that “marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving, a sentence for being convicted of one or more of such offenses.” Subsection (a) then lists six marijuana-related crimes.

First, the phrase “offenses convicted under state law” is awkward grammatically because an “offense” is not commonly thought of as “convicted”; the object of “to convict” is usually a person or a defendant.

Second, the phrase “of all living persons who have served, or are currently serving, a sentence” is ambiguous because it is not apparent what this clause modifies. For example, “of all living persons” can be read as the object of “shall be expunged.” If it is, then references to “all living persons who have served” a sentence for a marijuana-related offense must be expunged from all criminal records in Arkansas. This is a far-reaching outcome that must be stated with more clarity (or eliminated as a possibility) before I can summarize Section 8(a) in a ballot title.

Third, the phrase “all living persons who have served, or are currently serving, a sentence for … one or more of such offenses” is ambiguous because it is overbroad. Primarily, it is unclear if “all living persons” refers to persons residing outside of Arkansas who are serving, or who have served, a sentence resulting from a marijuana-related conviction.

Fourth, an ambiguity is created between the section’s title (“Non-violent marijuana offenses and criminal record expungement”) and the six offenses listed. The title implies that only “non-violent” offenses will be affected. But the offenses set out at Section 8(a)(1) - (6) could conceivably involve “violent” circumstances. This is problematic, especially since “non-violent” is not defined.

Because the effect of the proposed measure on criminal convictions is a matter of great importance to Arkansas voters, these ambiguities must be clarified before I can accurately summarize the expungement requirements in a ballot title.

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.[22] 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]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[20]Id.
[21]See, e.g., Merriam-Webster’s Collegiate Dictionary, p. 175 (10th ed. 2001) (defining “carry” as “to move while supporting”; “to convey by direct communication”; “to influence by mental or emotional appeal”; etc.).
[22]Ark. Code Ann. § 7-9-107(c).