Opinion No. 2013-099

August 30, 2013

Melissa Fults, Campaign Manager
Arkansans for Compassionate Care 2014
Post Office Box 420
Hensley, Arkansas 72065

Dear Ms. Fults:

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). Six similar measures were rejected due to ambiguities in the text of the proposed acts. See Ops. Att’y Gen. 2013-079, 2013-046, 2013-033, 2013-015, 2011-038 and 2011-023. This office substituted the popular name and ballot title and certified a proposed measure on April 18, 2011, in Op. Att’y Gen. 2011-049. You have made changes to the text of the measure and resubmitted your previously proposed popular name and ballot title, as follows:

Popular Name

The Arkansas Medical Cannabis 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 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 zoning regulations governing their operations; providing that qualifying patients, their designated caregivers 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 qualifying patients’ medical use of marijuana; allowing limited cultivation of marijuana by qualifying patients and designated caregivers if the qualifying patient and his or her designated caregiver lacks access to reasonable transportation to a nonprofit dispensary and obtains a hardship cultivation certificate from the Department of Health; allowing compensation for designated caregivers; requiring that in order to become a qualifying patient, a person submit to the state a written certification from a physician 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, hardship cultivation certificates; 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 maximum registration fees for nonprofit dispensaries; directing the Department of Health to establish a system to provide affordable marijuana from nonprofit dispensaries to low income patients; establishing qualifications for registry identification cards; establishing qualifications for hardship cultivation certificates; establishing standards to ensure that qualifying patient and designated caregiver 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 number of nonprofit dispensaries; setting limits on the amount of marijuana a nonprofit dispensary may cultivate and the amount of usable 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, qualifying patients, and designated caregivers; prohibiting felons from serving as designated caregivers, owners, board members, or officers of nonprofit dispensaries, or as nonprofit dispensary agents; allowing visiting qualifying patients suffering from qualifying medical conditions to utilize the Arkansas Medical Marijuana Program; and directing the sales tax revenues received from the sale of marijuana to cover the costs to the Department of Health for administering the Medical Marijuana Program and fifty percent (50%) of the remainder to the Newborn Umbilical Cord Initiative Fund and fifty percent (50%) to drug education programs administered through the Department of Human Services.

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, 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. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

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 proposed amendment.

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 amendment, 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 are, in my view, 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:

The meaning of the phrase “any part and any variety of species, or both,” which appears in the definition of “Marijuana,” is not clear. It is my understanding that you intend the part of the definition ending with the word “germination” to be identical to the definition at A.C.A. § 5-64-101(17), but it differs in this phrase and in other details.
The meaning of the phrase “for purposes of facilitating Marijuana,” which appears in the definition of “Medical Use,” is not clear. “Facilitate” means to make easy or promote an action or a result. It is meaningless to speak of the facilitation of a tangible thing like marijuana.
Under the definition, only an entity, not an individual, can be a “Nonprofit Dispensary.” But section 108(a)(1) contemplates that an individual may be a “nonprofit dispensary,” introducing ambiguity.
One would expect a term like “Usable Marijuana” to include part of the group of things defined as “Marijuana,” but not to include things that are not within the definition of “Marijuana.” The proposal’s definition of “Usable Marijuana” is unclear and ambiguous in including all stalks, when “Marijuana” does not include mature stalks. A similar ambiguity may be present regarding “that contains THC,” a phrase appearing in the definition of “Marijuana” but not in the definition of “Usable Marijuana.” Differences in the descriptions of non-cannabis ingredients that are excluded from the defined terms “Marijuana” and “Usable Marijuana” also create ambiguity.
Section 103(a)(1) would permit a Qualifying Patient to possess 2.5 ounces of Usable Marijuana, while section 103(b)(1) apparently is intended to permit a Designated Caregiver to possess 2.5 ounces of Marijuana. There is no apparent reason for the difference, which introduces ambiguity.
The first “sentence” of section 103(a)(2), having no subject, is merely a sentence fragment and inherently ambiguous; likewise section 103(b)(1), and the first “sentence” of section 103(b)(2).
Section 103(e)(1) refers to a “Qualified Patient,” a term not defined in the proposal.
By authorizing transfers and sales to “Qualified Patients and Designated Caregivers with Hardship Cultivation Certificate in Arkansas” (emphasis added), section 103(e)(1) may imply that a Nonprofit Dispensary may not transfer or sell Marijuana to a Qualifying Patient or Designated Caregiver without a Hardship Cultivation Certificate.
Section 103(i) describes the thing defined as “Written Certification” in terms that differ from the definition contained in section 102(q), thus introducing ambiguity.
Section 105(a)(7) is repetitive of section 105(a)(6), introducing ambiguity.
Section 105(g)(1) refers to information being “confidential as a medical record” under HIPAA. Section 110(b)(12) refers to information being “treated as confidential medical record” under HIPAA. The inconsistent usage creates ambiguity.
The first sentence of section 109(e) provides that a “Nonprofit Dispensary . . . may . . . cultivate . . . Marijuana . . . .” The sentence contains no limit on the amount that may be cultivated. The section later provides that a “Nonprofit Dispensary may also cultivate” Marijuana in stated limited quantities. Your proposed ballot title does not describe any cultivation limits on Nonprofit Dispensaries. As a result, I am unable to determine your intent in this regard or to substitute a ballot title accurately describing the proposal.
As described in the first paragraph of this letter, versions of your proposal have been the subjects of a number of submissions. Until the version addressed in Op. Att’y Gen. 2013-079, each version submitted apparently was based on the prior version, and incorporated changes made in connection with all prior versions. The version addressed in Op. Att’y Gen. 2013-079, by contrast, apparently was based on the version addressed in Op. Att’y Gen. 2011-049, the version certified in 2011. As a result, the version in Op. Att’y Gen. 2013-079, and the current version, may omit changes made in response to Ops. Att’y Gen. 2013-015 and 2013-033. Examples of matters remedied in earlier iterations but not now remedied include the contrast between section 103(a)(1) (“shall not”) and section 103(b) (and other occurrences) (“may not”) (2013-015); that the last part of section 103(f)(1) is likely intended to refer to a failure to enroll or lease to, but under standard rules of grammar actually refers to a failure to refuse to enroll or lease to (2013-015); that HIPAA does not use the term “medical record” to denote any record to which its privacy provisions apply (2013-015); that the word “purpose” is used for “reason” or the like (2013-033); that section 109(e) is not clear on whether the limit includes marijuana from predecessor plants (2013-015); and that sections 115(c) and (d) are ambiguous regarding circumstances in which Department is not taking applications (2013-033). It may be profitable for you to undertake a painstaking review of all opinions issued by this office with respect to earlier versions of your proposal, and the text of the current version itself, to ensure that all previous ambiguities identified have been remedied, and that your current proposal does not contain other errors.

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]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]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).