                                    Cite as 2016 Ark. 339


                SUPREME COURT OF ARKANSAS
                                        No.   CV-16-790
TONI ROSE, INDIVIDUALLY AND
                                                  Opinion Delivered: October   13, 2016
ON BEHALF OF ARKANSANS
AGAINST LEGALIZED MARIJUANA
                    PETITIONER

V.

MARK MARTIN, SECRETARY OF
STATE
                 RESPONDENT

DAVID COUCH, INDIVIDUALLY AND
ON BEHALF OF ARKANSANS UNITED
FOR MEDICAL MARIJUANA
                  INTERVENOR
                                                  PETITION DENIED.



                    COURTNEY HUDSON GOODSON, Associate Justice

       The petitioner, Toni Rose, individually, and on behalf of Arkansans Against

Legalized Marijuana, brings this original action to challenge the sufficiency of the ballot title

with regard to an initiated measure popularly known as The Arkansas Medical Marijuana

Amendment of 2016. By the complaint, petitioner seeks to enjoin respondent Arkansas

Secretary of State Mark Martin from canvassing and certifying any ballots cast for the

proposed amendment at the general election to be held on November 8, 2016. The initiated

measure is sponsored by intervenor David Couch, both individually and on behalf of

Arkansans United for Medical Marijuana, a ballot-question committee. Our jurisdiction to

determine this matter is conferred by amendment 7, as codified in article 5, section 1 of the

Arkansas Constitution, section 2(D)(4) of amendment 80, and Arkansas Supreme Court
                                    Cite as 2016 Ark. 339

Rule 6-5(a). After reviewing the petitioner’s arguments and the responses thereto, we deny

the petition.

       On February 7, 2016, the Arkansas Attorney General issued an opinion approving

the popular name and a revised ballot title for the proposed constitutional amendment. On

August 31, 2016, the respondent issued a certification of sufficiency stating that the proposal

had met the signature requirements set forth in article 5, section 1 and that the measure

would appear on the ballot at the upcoming November election as “Issue No. 6.”

       The ballot title, as approved by the Attorney General, provides as follows:

       An amendment to the Arkansas constitution making the medical use of
       marijuana legal under 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 licensed medical marijuana
       dispensaries and cultivation facilities and granting those dispensaries and
       facilities limited immunity; providing that qualifying patients, as well as
       dispensary and cultivation facility 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 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 and the addition of qualifying
       medical conditions if such additions will enable patients to derive therapeutic
       benefit from the medical use of marijuana; directing the Alcoholic Beverage
       Control Division to establish rules related to the operations of dispensaries and
       cultivation facilities; establishing a Medical Marijuana Commission of five
       members, two appointed by the President Pro Tempore of the Senate, two
       appointed by the Speaker of the House of Representatives, and one appointed
       by the Governor; providing that the Medical Marijuana Commission shall
       administer and regulate the licensing of dispensaries and cultivation facilities;
       providing that there shall be at least 20 but not more than 40 dispensary
       licenses issued and that there shall be at least four but not more than eight
       cultivation facility licenses issued; setting initial maximum application fees for
       dispensaries and cultivation facilities; establishing qualifications for registry
       identification cards; establishing standards to ensure that qualifying patient

                                               2
                                     Cite as 2016 Ark. 339

       registration information is treated as confidential; directing the Department of
       Health to provide the General Assembly 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 dispensaries and cultivation facilities; setting limits on the amount of
       marijuana a dispensary may cultivate and the amount of marijuana a dispensary
       may dispense to a qualifying patient; providing that the Medical Marijuana
       Commission shall determine the amount of marijuana a cultivation facility
       may cultivate; prohibiting certain conduct by and imposing certain conditions
       and requirements on physicians, dispensaries, dispensary and cultivation
       facility agents, and qualifying patients; establishing a list of felony offenses
       which preclude certain types of participation in the medical marijuana
       program; providing that the sale of useable marijuana is subject to all state and
       local sales taxes; providing that the state sales tax revenue shall be distributed
       5% to the Department of Health, 2% to the Alcoholic Beverage Control
       Administration Division, 2% to the Alcoholic Beverage Control Enforcement
       Division, 1% to the Medical Marijuana Commission, 10% to the Skills
       Development Fund, 50% to the Vocational and Technical Training Special
       Revenue Fund, and 30% to the General Revenue Fund; and permitting the
       General Assembly by two-thirds vote to amend sections of the amendment,
       except that the General Assembly may not amend the sections legalizing the
       medical use of marijuana and setting the number of dispensaries or cultivation
       facilities allowed.

       On September 6, 2016, the petitioner filed in this court an original-action complaint

alleging that the ballot title of the proposed amendment contains misleading statements and

omits material information that is essential for a fair understanding of the amendment.

Specifically, the petitioner asserts (1) that the ballot title falsely informs the voters that the

amendment places limitations on the use of medical marijuana by qualifying patients; (2)

that it fails to advise the voters that the amendment permits marijuana dispensaries to sell

food and drink that contain marijuana; (3) that the ballot title is incomplete and misleading

with regard to the effect of the amendment on employers, landlords, churches, and schools;

and (4) that it fails to inform the voters that the amendment prevents doctors, lawyers, and




                                                3
                                    Cite as 2016 Ark. 339

other professionals from being denied a license to practice their professions or from being

disciplined for using medical marijuana.

       In connection with the complaint, the petitioner filed motions for expedited

consideration and for consecutive briefing. Couch moved to intervene, and he and the

respondent filed answers to the complaint. This court granted the motion to intervene, set

an expedited briefing schedule, and ordered consecutive briefing.           With the briefing

complete, we now decide the merits of the complaint.

       We begin by reciting the familiar standards governing our review of ballot titles. The

ballot title must be an impartial summary of the proposed amendment, and it must give the

voters a fair understanding of the issues presented and the scope and significance of the

proposed changes in the law. May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004); Scott

v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996). A ballot title must be free of any misleading

tendency whether by amplification, omission, or fallacy, and it must not be tinged with

partisan coloring. Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (1996); Bailey v. McCuen,

318 Ark. 277, 884 S.W.2d 938 (1994). The ballot title need not contain a synopsis of the

proposed amendment or cover every detail of it. See Becker v. McCuen, 303 Ark. 482, 798

S.W.2d 71 (1990); Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884 (1942). However, if

information omitted from the ballot title is an essential fact that would give the voter serious

ground for reflection, it must be disclosed. Walker v. McCuen, 318 Ark. 508, 886 S.W.2d

577 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994). This court has long

recognized the impossibility of preparing a ballot title that would suit everyone. Cox v.

Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008); Hogan v. Hall, 198 Ark. 681, 130 S.W.2d


                                               4
                                     Cite as 2016 Ark. 339

716 (1939). Thus, the ultimate issue is whether the voter, while inside the voting booth, is

able to reach an intelligent and informed decision for or against the proposal and understands

the consequences of his or her vote based on the ballot title. Roberts v. Priest, 341 Ark. 813,

20 S.W.3d 376 (2000); Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).

       The sufficiency of a ballot title is a matter of law to be decided by this court. May,

supra; Bailey, supra. Our most significant rule in determining the sufficiency of the title is

that it be given a liberal construction and interpretation in order that it secure the purposes

of reserving to the people the right to adopt, reject, approve, or disapprove legislation. May,

supra; Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). However, this approach

does not imply that liberality is boundless or that common sense is disregarded. Christian

Civil Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Dust v. Riviere, 277

Ark. 1, 638 S.W.2d 663 (1982). In addition, when reviewing a challenge to a ballot title,

this court recognizes that article 5, section 1 places the burden upon the party challenging

the ballot title to prove that it is misleading or insufficient. Richardson v. Martin, 2014 Ark.

429, 444 S.W.3d 855; Cox v. Martin, 2012 Ark. 352, 423 S.W.3d 75.

       Finally, we observe that it is not our purpose to examine the relative merit or fault

of the proposed changes in the law; rather, our function is merely to review the measure to

ensure that, if it is presented to the people for consideration in a popular vote, it is presented

fairly. Cox v. Daniels, supra; May, supra. In other words, “[t]he question is not how the

members of this court feel concerning the wisdom of this proposed amendment, but rather

whether the requirements for submission of the proposal to the voters has been met.” Ferstl

v. McCuen, 296 Ark. 504, 509, 758 S.W.2d 398, 401 (1988).


                                                5
                                    Cite as 2016 Ark. 339

       Generally speaking, the proposed amendment authorizes the use of marijuana for

medical purposes. To be eligible, a person must receive a certification from a licensed

Arkansas physician that he or she suffers from a qualifying condition. The proposal lists

eighteen qualifying medical conditions and authorizes the Arkansas Department of Health

to add other medical conditions to the list. A qualifying patient must present the physician’s

certification to the Department of Health, which then issues a registry identification card to

the patient. As a cardholder, the patient is entitled to obtain marijuana from a dispensary

that is authorized to cultivate and sell marijuana. Marijuana may also be grown at a

cultivation facility, which may sell marijuana to dispensaries. The proposed amendment

also creates a Medical Marijuana Commission to license dispensaries and cultivation facilities.

The Alcoholic Beverage Control Division is to administer and enforce the provisions of the

amendment concerning dispensaries and cultivation facilities. In addition, certain qualifying

patients may designate “caregivers” to assist them in the use of marijuana.

        This court recently addressed a ballot-title challenge to the initiated measure

popularly referred to as The Arkansas Medical Cannabis Act (Act), which is also set to be

on the ballot at the November election. Conway v. Martin, 2016 Ark. 322, ___ S.W.3d

___. The Act and the amendment presently under consideration both purport to legalize

the use of marijuana for medicinal purposes, and they have a number of provisions in

common. Where the two proposals converge, the wording of the respective ballot titles is

virtually identical. The petitioner in Conway also raised the first three issues presented here,

and we determined that they were without merit. Because our decision in Conway is

controlling on these points, we reach the same result here.


                                               6
                                    Cite as 2016 Ark. 339

       The petitioner’s fourth and final argument focuses on the ballot title’s statement “that

qualifying patients . . . shall not be subject to criminal or civil penalties or other forms of

discrimination for engaging in . . . medical use of marijuana.” She contends that the word

“discrimination” is insufficient and misleading when compared to the effect of the

amendment on doctors, lawyers, and other licensed professionals and on people who use

their services. The petitioner notes that section 3(a) of the amendment provides in relevant

part that “[a] qualifying patient . . . shall not be subject to . . . penalty in any manner or

denied any right or privilege, including . . . disciplinary action by a business, occupational,

or professional licensing board or bureau, for the medical use of marijuana.” Her argument

is that the ballot title fails to inform the voters that the amendment prevents doctors, lawyers,

and other professionals from being denied a license to practice or from being disciplined for

using medical marijuana.

       In addition, the petitioner observes that the amendment states that it “does not

require [a]n employer to accommodate the ingestion of marijuana in a workplace or an

employee working while under the influence of marijuana.” Section 6(b)(2). She asserts

that this language would permit, but not require, employers to prohibit their employees

from using marijuana at work or from working while under the influence of marijuana.

Further, the petitioner points out that the amendment also states that it “does not permit a

person to [u]ndertake any task under the influence of marijuana when doing so would

constitute negligence or medical malpractice.” Section 6(a)(1). She argues that the clear

implication of this provision is that marijuana users are permitted to be influenced by

marijuana, so long as they do not commit negligent or wrongful acts.


                                               7
                                    Cite as 2016 Ark. 339

       In sum, the petitioner maintains that the ballot title is insufficient and misleading for

omitting these matters, which she contends would, if disclosed, give the voters serious

ground for reflection. We disagree. In fact, the ballot title informs the voters that certain

persons will not be subject to “forms of discrimination” for engaging in the medical use of

marijuana. As we noted above, a ballot title need not contain a synopsis of the proposed

amendment or cover every detail of it. See Becker, supra; Sturdy, supra. It is enough for the

ballot title to impart a fair understanding of the issues presented and the scope and

significance of the proposed changes in the law. May, supra. Moreover, in large part, the

petitioner’s arguments call for an interpretation of the amendment. However, this court

does not interpret a proposed amendment or discuss its merits or faults. Richardson, supra;

Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002). For these reasons, we find no merit

in the petitioner’s arguments.

       We conclude that while inside the voting booth, the voters will be able to reach an

intelligent and informed decision for or against The Arkansas Medical Marijuana

Amendment of 2016. Therefore, we deny the petition.

       Petition denied.

       Friday, Eldredge & Clark, LLP, by: Robert S. Shafer and Phillip M. Brick, Jr., for

petitioners.

       AJ Kelly, Deputy Secretary of State and General Counsel, and Michael Fincher,

Associate General Counsel, for respondent.

       David A. Couch, for intervenor.




                                               8
