Opinion No.
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Mr. Barry Emigh 1720 Arrowhead Rd., Apt. O North Little Rock, AR 72118

Dear Mr. Emigh:

You have requested certification, pursuant to A.C.A. § 7-9-107 (Repl. 1993), of the following popular name and ballot title for a proposed amendment to the Constitution of the State of Arkansas:

POPULAR NAME
PROVIDE FOR THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA TO BE PUNISHABLE AS A MISDEMEANOR AND DECRIMINALIZED FOR MEDICAL USE

BALLOT TITLE
AMENDMENT TO CLASSIFY THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA AS A MISDEMEANOR PUNISHABLE BY A FINE: TO PROVIDE FOR THE DECRIMINALIZED POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA FOR MEDICAL USE BY A PERSON DIAGNOSED BY A LICENSED MEDICAL PHYSICIAN TO HAVE A TERMINAL DISEASE, CHRONIC ILLNESS, OR CHRONIC PAIN WITHOUT A LICENSED MEDICAL PHYSICIAN'S PRESCRIPTION: TO PROVIDE FOR THE DECRIMINALIZED CULTIVATION OF MARIJUANA PLANTS FOR MEDICAL USE BY ANYONE DIAGNOSED BY A LICENSED MEDICAL PHYSICIAN TO HAVE A TERMINAL DISEASE, CHRONIC ILLNESS, OR CHRONIC PAIN WITHOUT A LICENSED MEDICAL PHYSICIAN'S PRESCRIPTION: TO PROVIDE FOR THE REPEAL OF ANY PENALTIES ON THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA AS A REPEAT OFFENSE; TO PROVIDE FOR THE REPEAL OF PRIOR CONSTIUTIONAL AND STATUTORY PROVISIONS INCONSISTENT WITH THIS AMENDMENT AND TO PROVIDE SEVERABILITY

You have previously submitted popular names and ballot titles for similar proposed measures. I rejected those submissions on the grounds of certain ambiguities in the text of the proposed measures. See Ops. Att'y Gen. Nos. 99-326; 99-284. The popular name and ballot title under consideration here are a resubmission of those that were rejected in Ops. Att'y Gen. Nos. 99-326 and 99-284.

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.

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. 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 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 measure. See Arkansas Women's Political Caucus v.Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984).

The popular name is primarily a useful legislative device. Pafford v.Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). 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. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. Id.

The ballot title must include an impartial summary of the proposed measure that will give the voter a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 417, 316 S.W.2d 185 (1958); Beckerv. Riviere, 270 Ark. 219, 223, 226, 604 S.W.2d 555 (1980). 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." Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938 (1994), citing Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990); Gaines v.McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Hoban v. Hall, supra; andWalton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). 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.Bailey v. McCuen, supra. 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. Plugge v.McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. Id. A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. Christian Civic Action Committee v. McCuen,318 Ark. 241, 884 S.W.2d 605 (1994). It has been stated that the ballot title must be: 1) intelligible, 2) honest, and 3) impartial. Becker v.McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990), citing Leigh v. Hall,232 Ark. 558, 339 S.W.2d 104 (1960).

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title, under the above precepts, I find that the following proposed popular name and ballot title should be substituted for your proposed popular name and ballot title in order to ensure that the voters will be more fully and accurately apprised of the contents of the proposed amendment:

POPULAR NAME
AN AMENDMENT PROVIDING FOR THE CLASSIFICATION OF THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA AS A MISDEMEANOR AND FOR THE DECRIMINALIZATION OF THE POSSESSION OF MARIJUANA FOR MEDICINAL PURPOSES

BALLOT TITLE
AN AMENDMENT PROVIDING FOR THE CLASSIFICATION OF THE POSSESSION OF A QUARTER OF AN OUNCE OR LESS OF MARIJUANA AS A MISDEMEANOR PUNISHABLE BY A FINE OF SEVENTY-FIVE DOLLARS; PROVIDING FOR THE CLASSIFICATION OF THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA BUT MORE THAN A QUARTER OF AN OUNCE OF MARIJUANA AS A MIDSEMEANOR PUNISHABLE BY A FINE OF ONE HUNDRED FIFTY DOLLARS; PROVIDING THAT PERSONS SERVING JAIL SENTENCES AT THE TIME OF THE PASSAGE OF THIS AMENDMENT FOR THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA SHALL HAVE THE PART OF THE JAIL SENTENCE THAT IS ATTRIBUTABLE TO THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA DISMISSED FROM THEIR JAIL SENTENCES; PROVIDING FOR THE DECRIMINALIZATION OF THE POSSESSION, WITHOUT A PRESCRIPTION, OF CULTIVATED MARIJUANA PLANTS IN A MANNER NOT OBVIOUS TO THE PUBLIC SIGHT OR ACCESSIBLE TO THE PUBLIC BY PERSONS DIAGNOSED BY A LICENSED MEDICAL PHYSICIAN WITH A TERMINAL DISEASE, CHRONIC ILLNESS, OR CHRONIC PAIN; PROVIDING FOR THE DECRIMINALIZATION OF THE POSSESSION, WITHOUT A PRESCRIPTION, OF HARVESTED MARJUANA IN AN AMOUNT EQUAL TO HALF AN OUNCE OR LESS BY PERSONS DIAGNOSED BY A LICENSED MEDICAL PHYSICIAN WITH A TERMINAL DISEASE, CHRONIC ILLNESS, OR CHRONIC PAIN; PROVIDING FOR THE EXCLUSION OF PERSONS WHO ARE FOUND GUILTY OF THE OFFENSE OF POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA, OR WHO HAVE PLED GUILTY OR NO CONTEST TO THE OFFENSE OF POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA FROM THE LAWS AFFECTING REPEAT OFFENDERS; PROVIDING THAT PERSONS SERVING JAIL SENTENCES AT THE TIME OF THE PASSAGE OF THIS AMENDMENT AS REPEAT OFFENDERS FOR THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA SHALL HAVE THE PART OF THE JAIL SENTENCE THAT IS ATTRIBUTABLE TO THE POSSESSION OF HALF AN OUNCE OR LESS OF MARIJUANA DISMISSED FROM THEIR JAIL SENTENCES; PROVIDING FOR THE AMENDMENT TO BE SELF-EXECUTING AND TO TAKE EFFECT IMMEDIATELY UPON PASSAGE; REQUIRING ALL STATE OR LOCAL RULE-MAKING AUTHORITIES TO MAKE ALL LAWS AND REGULATIONS NECESSARY TO THE ENFORCEMENT OF THIS AMENDMENT; PROVIDING FOR THE SEVERABILITY OF THE PROVISIONS OF THIS AMENDMENT AND FOR THE REPEAL OF ALL LAWS INCONSISTENT WITH THIS AMENDMENT

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers are enclosed herewith.

Sincerely,

MARK PRYOR Attorney General

Enclosure