Opinion No. 2017-030

March 20, 2017

Mary L. Berry, Sponsor
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 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

Arkansas Cannabis Hemp
and 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 recreational marijuana and cannabis hemp and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, possession of marijuana, marijuana paraphernalia, and the unlawful use of a communication device as it pertains to the sale of marijuana; and the expungement of records relating to such conviction(s); dividing cannabis in to [sic] cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of cannabis hemp and products produced therefrom; providing that a business and anyone 21 years of age or older may obtain a cannabis hemp license permitting the business or person to cultivate cannabis hemp; authorizing recreational use of marijuana; providing that a business and anyone 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a licensed person or business may have cultivating [sic] up to 36 marijuana plants in a location not subject to public view without optical aid; 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 with a marijuana license that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any business with a marijuana license, or person 21 years of age or older; providing that the owner(s) of the business and any and all employees have a marijuana license, and that the recreational marijuana being 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 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 21 years of age, (d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana; providing that if the State fails to begin issuing cannabis hemp licenses, field tags, marijuana licenses, and plant tags by April 19th, 2019 such licenses and tags shall not be required to cultivate, produce, and sale [sic] cannabis hemp and or recreational marijuana until such licenses and tags are issued by the State and 30 days is given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged.

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 3(b) of your proposed amendment defines a �cannabis hemp field tag or field tag� as a state-issued label that must be �attache[d] to any post or fencing where ten acres or less of cannabis hemp is being grown, and a field tag is required to be posted for every ten acres of cannabis hemp grown, with a limit of ten (10) tags allowed per licensed business or person per year.�

I cannot reconcile an apparent contradiction between the ten-acre limitation on cannabis-hemp field tags and the requirement that field tags �be posted for every ten acres of cannabis hemp grown.� On the one hand, a reasonable voter might conclude that a field tag is only necessary where �ten acres or less of cannabis hemp� are cultivated. But the clause that immediately follows the quoted language in Section 3(b) states that field tags are �required … every ten acres.� Therefore, a reasonable voter might conclude that field tags are necessary where ten acres or more of cannabis hemp are cultivated. Until this ambiguity is clarified, I cannot summarize the proposed amendment in a ballot title so as to give voters a fair understanding of the field-tag requirements for cannabis hemp.

2. Section 3(b) also provides the following set of examples:

less than (<) 1 acre but not more than 10 acres will require 1 field tag,

greater than (>) 10 acres but not more than 20 acres will require 2 field tags,

greater than (>) 40 acres but not more than 50 acres will require 5 field tags, and

greater than (>) 90 acres but not more than 100 acres will require 10 field tags.

This part of the text raises at least two additional ambiguities. First, the initial hypothetical appears to contain an internal error that is not amenable to summary in a ballot title. This hypothetical states that one field tag is required for �less than (<) 1 acre� of cannabis hemp; at the same time, the hypothetical states that one field tag is required for �not more than 10 acres� of cannabis hemp. A reasonable voter would be unsure of the number of field tags necessary for a licensee cultivating greater than one, but less than ten, acres of cannabis hemp. Second, it is unclear if the four hypotheticals are intended as an exhaustive list of field-tag limitations with respect to acreage. For this reason, a reasonable voter would question how, or if, the field-tag requirement applies to acreages not expressly mentioned. The ambiguities caused by the examples in Section 3(b) must be clarified before I can fairly summarize the field-tag requirements in a ballot title.

3. Section 5(d) states that any �person or business who is issued a marijuana license and plant tag(s) may cultivate marijuana . . . with the consent of the persons(s) who own the property.�

There is an ambiguity caused by, on the one hand, legalizing the cultivation of marijuana for licensed persons and businesses, while expressly stating that only �person(s)� need consent to cultivation of marijuana if the licensee does not own the property where the marijuana is grown. If a business, and not a person, owned the property in question, it is unclear if that business would need to consent to a third-party licensee cultivating marijuana on the property. This ambiguity must be resolved in order to accurately summarize the proposed amendment�s requirements for marijuana cultivation.

4. Section 5(f)(3) states that all recreational marijuana �being sold� must be �designed, packaged, and labeled pursuant to section 6 of this amendment.�

It is unclear if the design/packaging/labeling requirements for recreational marijuana apply strictly to marijuana �sold� by a licensee, or if these requirements apply as well to marijuana distributed without remuneration. The manner in which recreational marijuana is sold and distributed is crucial to a fair summary of the amendment in a ballot title. This ambiguity must be clarified before I can certify a title that accurately describes the amendment�s requirements for design, packaging, and labeling.

5. Section 9 provides that �all criminal records in this state shall be expunged of such [marijuana-related] convictions that occurred prior to the effective date of this amendment.�

The extent of the expungement requirement in Section 9 is unclear. Specifically, a reasonable voter would not know if the proposed amendment intends to expunge all current marijuana-related convictions that �occurred prior to the effective date.� Under this interpretation, a marijuana-related conviction would be only expunged if (1) the conviction occurred prior to the amendment�s effective date, and (2) the sentence associated with the conviction was being served when the amendment took effect. But a reasonable voter might also conclude that each and every marijuana-related conviction must be expunged, regardless of when the conviction occurred and whether the associated sentence was being served when the amendment took effect. The effect of the proposed amendment on criminal convictions is a matter of great importance to Arkansas voters. This ambiguity must be clarified before I can accurately summarize the expungement requirement 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.[21] 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, 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]Ark. Code Ann. � 7-9-107(c).

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