Opinion No. 2018-005

January 31, 2018

Ms. Mary L. Berry, Sponsor
Arkansas True Grass Ballot Question Comm.
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.[1] 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.[2] In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.[3]

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.”[4] And it follows from my duty to reject misleading submissions that 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 ballot title submitted is wholly deficient. Nor does the statute require that I modify the proposed measure for the sponsor, in order to then summarize its text in a suitable ballot title.[5] Crafting and accurately summarizing the text 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

An amendment to the Arkansas Constitution concerning the cannabis plant, and in connection therewith, providing that the State regulate the cultivation, production, distribution, sale, purchase, transport, and use of recreational marijuana in the State pursuant to the amendment; permitting the cultivation, production, distribution, sale, purchase, transport, and use of recreational marijuana and products produced therefrom by adults (18 years of age or older) pursuant to the amendment; recognizing that such activities remain prohibited under federal law; providing for the release from incarceration, probation, and parole of all persons whose current, and only conviction(s) in which they are serving were for violating the Arkansas Uniformed Controlled Substances Act in regards to marijuana; and providing for the expungement of marijuana related convictions that were imposed prior to the effective date of this amendment, November 7th, 2018; providing that any adult or business entity with a marijuana license may have up to 36 marijuana plants growing in a location not subject to public view without optical aid; providing that each plant being grown has a state issued marijuana plant tag; permitting the transport of recreational marijuana by adults out of public view; permitting the consumption of recreational marijuana by adults wheresoever the consumption of alcohol is permitted; providing that sales of recreational marijuana will be subject to existing sales tax, and an additional 5% recreational marijuana excise tax, and a local sales tax of 2%; permitting any adult or business entity with a recreational marijuana license that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana and products produced therefrom to any adult person 18 years of age or older with proof of age; limiting the quantity of recreational marijuana products that can be sold per day to adults presenting an out of state proof of age; providing that the recreational marijuana being sold in the form of food or drink, (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; providing penalties for violations pursuant to this amendment that include, (a) for a first time offense a penalty that does not exceed two-hundred dollars ($200.00), (b) second time offense a Class C misdemeanor charge with a suspension of a marijuana license for 1 year, and (c) third time or subsequent offenses a Class B misdemeanor charge with a suspension of a marijuana license for 5 years; and providing that the amendment (a) shall not be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) shall not be construed to permit driving under the influence of marijuana, (c) shall not be construed to permit the transfer of recreational marijuana to anyone under 18 years of age, (d) nor permit anyone under 18 years of age to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana, and (e) shall not be construed to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. 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 the text of an earlier measure had been deleted. Thus, what you sent for my review was the last measure that had been rejected minus the deleted sections of text. I explained this was problematic because your proposal contains a regulatory scheme too convoluted to be summarized in an intelligent, impartial, and honest manner.

Now you have submitted the measure that I rejected in Opinion 2017-135 with large sections of text added. The added sections are identical, or virtually identical, to text already flagged as ambiguous and misleading.[6] And whether text is deleted or added, the net effect is the same. The import and complexity of the decriminalization scheme you propose makes it insufficient under section 7-9-107(c) simply to bring back 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.
Especially given this history of submissions, responses, and re-submissions, it is impossible to fairly summarize in a ballot title the recreational-marijuana amendment that you have proposed.

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.

Sincerely,


Leslie Rutledge
Attorney General

Enclosure

[1]Ark. Code Ann. § 7-9-107(c) (Supp. 2017).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1984).
[3]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[4]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted). The Arkansas Supreme Court has explained that ballot titles are legally insufficient unless they “adequately inform” voters and enable a “reasoned decision in the voting booth.” Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. Likewise, a ballot title cannot be approved if the text of the proposal creates a disconnect between the ballot title and the content of the proposed measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). This is because “internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself.” Id.
[5]See Op. Att’y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-701 (Supp. 2015), which prohibits the Attorney General from engaging in the private practice of law).
[6]See, e.g., Opinion 2017-127 (“You have previously submitted proposed amendments involving ‘plant tags,’ effective dates, and staggered time periods within which the State must begin regulating recreational-marijuana activities. I have consistently rejected those submissions because of ambiguities very similar, if not identical, to the defects found in your current submission.”).