Opinion No. 2013-015

February 19, 2013

David A. Couch, Esq.
1501 North University, Suite 228
Little Rock, Arkansas 72207

Dear Mr. Couch:

This is in response to your submission on behalf of Arkansans for Compassionate Care for certification of the popular name and ballot title for a proposed initiated act pursuant to A.C.A. § 7-9-107 (Repl. 2007). Two similar measures were rejected due to ambiguities in the text of the proposed acts. See Ops. Att’y Gen. 2011-038 and 2011-023. This office substituted the popular name and ballot title and certified a proposed measure on April 18, 2011, as evidenced by Op. Att’y Gen. 2011-049. You have made changes to the text of the measure and submitted a revised ballot title for my certification. The popular name and ballot title of your current proposal state:

Popular Name

The Arkansas Medical Marijuana Act

Ballot Title

An act making the medical use of marijuana legal under Arkansas state law, but acknowledging that marijuana use, possession, and distribution for any purpose remain illegal under federal law; establishing a system for the cultivation, acquisition and distribution of marijuana for qualifying patients through nonprofit medical marijuana dispensaries and granting those nonprofit dispensaries limited immunity; allowing localities to limit the number of nonprofit dispensaries and to enact reasonable zoning regulations governing their operations; providing that qualifying patients, and nonprofit dispensary agents shall not be subject to criminal or civil penalties or other forms of discrimination for engaging in or assisting with the patients’ medical use of marijuana; requiring that in order to become a qualifying patient, a person submit to the state a written certification from a physician licensed in the state of Arkansas that he or she is suffering from a qualifying medical condition; establishing an initial list of qualifying medical conditions; directing the Department of Health to establish rules related to the processing of applications for registry identification cards, the operations of nonprofit dispensaries, and the addition of qualifying medical conditions if such additions will enable patients to derive therapeutic benefit from the medical use of marijuana; setting initial maximum registration fees for nonprofit dispensaries; establishing qualifications for registry identification cards; establishing standards to ensure that qualifying patient registration information is treated as confidential; directing the Department of Health to provide the Legislature annual quantitative reports about the medical marijuana program; setting certain limitations on the use of medical marijuana by qualifying patients; establishing an affirmative defense for the medical use of marijuana; establishing registration and operation requirements for nonprofit dispensaries; setting limits on the amount of marijuana a nonprofit dispensary may cultivate and the amount of marijuana a nonprofit dispensary may dispense to a qualifying patient; prohibiting certain conduct by and imposing certain conditions and requirements on physicians, nonprofit dispensaries, nonprofit dispensary agents, and qualifying patients; establishing a list of felony offenses which preclude certain types of participation in the medical marijuana program; and providing that the sale of usable marijuana is subject to all state and local sales taxes.

The Attorney General is required, pursuant to A.C.A. § 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 substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 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, following Arkansas Supreme Court precedent, this office will not address the constitutionality of proposed measures in the context of a ballot title review unless the measure is “clearly contrary to law.”[1] Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed amendment or act.

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.[2]

The popular name is primarily a useful legislative device.[3] 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.[4] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[5]

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.[6] According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”[7] At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.[8] 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.[9] The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.[10] A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.[11] The ballot title must be intelligible, honest, and impartial.[12]

Having analyzed your proposed measure, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your ballot title may be 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. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguities:

Section 103(c)(ii) refers to the “presumptions made in section 103(d)” but section 103(d) contains no presumptions.

The initial capital letter in section 103(i)’s reference to “Qualifying” marijuana paraphernalia suggests that the word is a defined term but it does not appear to be.

The word “physician” is used in section 105(a)(i) without an initial capital letter, suggesting that the word does not have the meaning attributed to the defined term “Physician.” Additionally, the reference is to “the” physician, suggesting a single person is authorized to issue certificates.

Section 105(f)(vi) refers to a “Designated Caregiver,” falsely implying that the proposal contains that defined term.

Section 109(b)(xi) suggests that marijuana may be dispensed to a Qualifying Patient or a Nonprofit Dispensary Agent, in either case without a registry identification number, but the proposal does not otherwise appear to make provision for any person to become a Qualifying Patient or Nonprofit Dispensary Agent without having an identification number.

It is not clearly expressed that the “contact information” at the end of the proposal is not intended to constitute part of the proposal.[13]

All of the foregoing ambiguities are new to this version of your proposal. Because I am rejecting your proposed popular name and ballot title due to those ambiguities, I take this opportunity to point out the following ambiguities which may have been embodied in prior versions of your proposal but the resolution of which would aid in clarifying the proposal and any popular name and ballot title ultimately certified:

The proposal uses words and phrases with initial letters capitalized that are neither proper nouns nor defined terms, thus creating confusion in a document that does also contain defined terms with initial letters capitalized. Additionally, the proposal contains several syntax errors that tend to obscure the proposal’s meaning (e.g., section 103(d) is most naturally read to provide in part that “A Cardholder may not be . . . denied any right or privilege, including . . . a civil penalty . . . .”).

In section 102, “Nonprofit Dispensary” is defined to exclude individual human beings; it includes entities only. But section 107(a)(i) implies that a Nonprofit Dispensary may be an individual.

The word “physician” is used in the definition of the term “Written Certification” and in section 104(e)(iii) without an initial capital letter, suggesting that the word does not have the meaning attributed to the defined term “Physician.”

The proposal uses the phrase “may not be,” or the like, in several instances where the context makes it appear likely that the intended meaning is “shall not be,” or the like (e.g., section 103(a)).

Section 103(d) is not clear with respect to whether a Cardholder may transfer marijuana to a Nonprofit Dispensary Agent.

Section 103(f)(i) is ambiguous in providing that failing to refuse to enroll or lease might cause a person to violate federal law.

Section 103(h)’s reference to “the standard of care” is ambiguously vague.

Section 104(d)(i) provides that not all Nonprofit Dispensary fees need be the same but does not provide any standards for charging different fees.

Section 105(f)(ii) refers to “an agent of the Nonprofit Dispensary,” implying that someone other than a Nonprofit Dispensary Agent is intended. It also refers to issuance of a Registry Identification Card “in accordance with section 108(h),” but section 108(h) does not provide for issuance of such a card.

Sections 105(g)(i) and 109(b)(xii) refer to a “medical record under” HIPAA, but that federal law does not employ the term “medical record” to designate any record to which its privacy provisions apply.

Section 105(h) implies that a Cardholder may transfer marijuana to a Nonprofit Dispensary Agent, a proposition that is not clearly expressed elsewhere in the proposal.

Section 106(b)(iv) uses the phrase “qualified patient” without initial capitals, implying that the term means something other than “Qualifying Patient.”

The subsection designations of section 107(a)(i)-(ii) and (iii)-(v) are unclear and ambiguous.

Sections 107(a)(ii) and (v) refer to “the requirements imposed by . . . section 103,” but section 103 does not by its terms impose requirements. To the extent the sections refer to requirements implied by section 103, one of those is card possession, and a person described in section 107(a)(iii)-(v) cannot be in compliance with that requirement.

Section 107(b)(1) refers to revocation of a Registry Identification Card for misconduct, a procedure not expressly provided for or described elsewhere in the proposal.

Section 107(c) provides that actual possession of a Registry Identification Card is not required to raise the affirmative defense set forth in section 107, but section 103(a) implicitly provides that a Qualifying Patient not in actual possession of a Registry Identification Card may be subject to prosecution for a marijuana offense.

Section 108(b)(i)(C) refers to rules of the “department,” implying that something other than “The Department” is meant.

Section 108(e)(i) refers to “useable marijuana,” implying that something other than “Usable Marijuana” is meant.

Sections 108(e)(i) and (ii) are unclear whether “Usable Marijuana derived from such plants” means only marijuana derived from the same 45 or five flowering plants referred to in the sections, or whether it includes marijuana derived from predecessor plants so long as the Nonprofit Dispensary never possesses no more than 45 or five flowering plants. The sections are also ambiguous with respect to whether a Nonprofit Dispensary may possess an unlimited number of, or no, non-flowering plants.

Section 108(i) refers to “the requirements contained in this section,” but the section does not appear to impose any requirements on Nonprofit Dispensaries or Nonprofit Dispensary Agents.

Sections 109(a) and 110(a)(ii) are ambiguously vague with respect to whether “inspection” includes “search.”

Section 109(b)(i)’s reference to “residential district” is ambiguously vague.

Section 109(b)(vi)’s reference to “operating documents” is ambiguously vague.

Section 109(b)(vii) is ambiguous with respect to whether there are any limitations on how a Nonprofit Dispensary may dispose of marijuana.

Section 110(a)(i) uses the phrase “medical purposes,” implying that something other than “Medical Use” is meant. If “Medical Use” is meant, the section is ambiguously redundant because “Medical Use” includes Acquisition, possession, etc.

Section 110(b)(i) ambiguously suggests that Nonprofit Dispensary Agents are not allowed to possess marijuana when transporting marijuana.

Section 111(b) is ambiguous in imposing a penalty only on a Nonprofit Dispensary Agent for a Nonprofit Dispensary’s violation of section 111(a).

Section 112 is ambiguously vague in failing to place any restrictions on or describe any criteria for a city’s power to “limit the number” of dispensaries.

While the following items do not necessarily constitute ambiguities in and of themselves, I note them in the interests of making the proposal clearer and more readable:

The definitions of “Qualifying Medical Condition” and “The Department” in section 102 are not in alphabetical order.

The proposal contains several misused words (e.g., “and” for “an”), misdesignations (e.g., section 103(j)(i) appears twice), and surplus words (e.g., “or” at the end of section 102(j)).

I cannot certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with 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 A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law. See, e.g., Finn v. McCuen, supra. Furthermore, the Court has recently confirmed that a proposed amendment cannot be approved if “[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.” Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). The Court concluded: “[I]nternal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself.” Id. 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 clarification of the ambiguities.

My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to “redesign” the proposed measure and ballot title. See A.C.A. § 7-9-107(c). You may, after clarification of the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,


Dustin McDaniel
Attorney General

DM/cyh

Enclosure

[1]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).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[4]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).
[5]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[6]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
[7]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[8]Id. at 288, 884 S.W.2d at 944.
[9]Id. 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[12]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[13]As a condition of my certification, I must be provided with the complete text of your proposed act. This requirement is reflected in A.C.A. § 7-9-107(a), which provides that “the sponsors shall submit the original draft to the Attorney General, with a proposed . . . ballot title and popular name.” (Emphasis added.)