Armstrong v. Thurston, CV-22-482

• Docket Number: CV-22-482
• Decision Date: 22 September 2022
• Parties: Eddie ARMSTRONG and Lance Huey, Individually and on Behalf of Responsible Growth Arkansas, a Ballot Question Committee, Petitioners v. John THURSTON, in His Official Capacities as Secretary of State and Chair of the State Board of Election Commissioners; State Board of Election Commissioners, Respondents Save Arkansas From Epidemic, a Ballot Question Committee; and David Burnett, Individually and as Chairman of Save Arkansas From Epidemic Ballot Question Committee, Intervenors Safe and Secure Communities, a Ballot Question Committee; and Michael McCauley, Individually and as Treasurer of Safe and Secure Communities, Intervenors
• Court: Arkansas Supreme Court

2022 Ark. 167

652 S.W.3d 167

Eddie ARMSTRONG and Lance Huey, Individually and on Behalf of Responsible Growth Arkansas, a Ballot Question Committee, Petitioners

v. John THURSTON, in His Official Capacities as Secretary of State and Chair of the State Board of Election Commissioners; State Board of Election Commissioners, RespondentsSave Arkansas From Epidemic, a Ballot Question Committee; and David Burnett, Individually and as Chairman of Save Arkansas From Epidemic Ballot Question Committee, IntervenorsSafe and Secure Communities, a Ballot Question Committee; and Michael McCauley, Individually and as Treasurer of Safe and Secure Communities, Intervenors

No. CV-22-482

Supreme Court of Arkansas.

Opinion Delivered: September 22, 2022

Wright, Lindsey & Jennings LLP, Little Rock, by: Stephen R. Lancaster, Gary D. Marts, Jr., and Erika Gee, for petitioners.

Leslie Rutledge, Att'y Gen., by: Kate Donoven, Sr. Ass't Att'y Gen.; and Carl F. "Trey" Cooper III, Ass't Att'y Gen., for respondents.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for intervenors Safe and Secure Communities and Michael McCauley.

Kelly Law Firm, PLC, Little Rock, by: AJ Kelly, for intervenors Save Arkansas from Epidemic and David Burnett.

ROBIN F. WYNNE, Associate Justice

Petitioners, Eddie Armstrong and Lance Huey, individually and on behalf of Responsible Growth Arkansas, have filed an original action asking this court to vacate the determination of the State Board of Election Commissioners (the Board) and the Secretary of State not to certify the ballot title for a proposed constitutional amendment authorizing the adult possession and use of cannabis. Petitioners ask this court to order the Secretary of State to certify the proposed amendment for inclusion on the ballot at the November 8, 2022 general election. Two ballot-question committees, Save Arkansas From Epidemic and Safe and Secure Communities, have intervened in support of the decision not to certify the ballot title. This court has jurisdiction under amendment 7, as codified in article 5, section 1 of the Arkansas Constitution ; section 2(D)(4) of amendment 80; and Arkansas Supreme Court Rule 6-5(a). Petitioners argue that the ballot title is sufficient under this court's precedent and that Arkansas Code Annotated section 7-9-111 ’s ballot-title certification process is unconstitutional. We grant the petition.

I. Background

On July 8, 2022, Petitioners submitted to the Secretary of State a petition for a proposed constitutional amendment with the popular name "An Amendment to Authorize the Possession, Personal Use, and Consumption of Cannabis by Adults, to Authorize the Cultivation and Sale of Cannabis by Licensed Commercial Facilities, and to Provide for the Regulation of those Facilities." As its popular name suggests, the proposed amendment would authorize the adult possession and use of cannabis and make several changes to existing law, including amendment 98, which governs medical marijuana. The complete ballot title is appended to this opinion. Of particular significance, the ballot title states that one change to amendment 98 is "repealing and replacing Amendment 98, §§ 8(e)(5)(A)–(B) and 8(e)(8)(A)–(F) with requirements for child-proof packaging and restrictions on advertising that appeals to children...." The Secretary of State certified that the petition had met the signature requirements on August 2, 2022.

Under Act 376 of 2019, codified in relevant part at Arkansas Code Annotated section 7-9-111(i) (Supp. 2021), the Board was charged with certifying the popular name and ballot title of the proposed amendment. The Board declined to certify the popular name and ballot title at a meeting on August 3, 2022. In a written notice issued the following day, the Board stated that the ballot title is misleading because it omits the fact that the proposed amendment would repeal amendment 98, section 8(e)(5)(A)’s limitation on the maximum tetrahydrocannabinol (THC) content per portion, which the Board said was material information voters would need to know when voting for or against the measure. The Board also reasoned that failing to explain that the proposed amendment would repeal the THC dosage limit—while stating that the repealed section would be replaced with requirements for child-proof packaging and restrictions on advertising—is misleading because it obscures the removal of a protective dosage measure. As required under section 7-9-111(i)(4)(A)(iii), the Board notified the Secretary of State that it had declined to certify the popular name and ballot title.

After the Board declined to certify the popular name and ballot title, Petitioners filed this original action challenging the Board's decision and moved for a preliminary injunction. This court ordered the Secretary of State to conditionally certify the proposed amendment pending our decision.

Two ballot-question committees, Save Arkansas From Epidemic and Safe and Secure Communities, intervened with this court's permission. The Secretary of State declared the proposed measure insufficient on September 13, 2022.

II. Constitutionality of Arkansas Code Annotated Section 7-9-111(i)

Although Petitioners discuss the constitutionality of section 7-9-111(i) last in their petition and brief, we address it before reaching the sufficiency issue. Respondents urge us to decline to address the constitutional issue. It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions. Tollett v. Wilson , 2020 Ark. 326, at 8–9, 608 S.W.3d 602, 608. However, we cannot appropriately dispose of this case without addressing the constitutionality of the statute at issue. Respondents also argue that this issue is not properly before us because they contend that Petitioners were required to proceed under the Declaratory Judgment Act. Ark. Code Ann. §§ 16-11-101 et seq. (Repl. 2016 & Supp. 2021). But the issue of the validity of the statute is before us in this original action that does not seek declaratory relief but rather seeks a direct remedy. Finn v. McCuen , 303 Ark. 418, 422, 798 S.W.2d 34, 36 (1990), overruled on other grounds by Stilley v. Priest , 341 Ark. 329, 16 S.W.3d 251 (2000). Accordingly, it is appropriate for us to examine the constitutionality of section 7-9-111(i).

In considering any constitutional challenge to a statute, we begin with the axiom that every act carries a strong presumption of constitutionality. McCarty v. Ark. St. Plant Bd. , 2021 Ark. 105, at 2, 622 S.W.3d 162, 164. The burden of proof is on the party challenging a statute to prove its unconstitutionality, and we resolve all doubts in favor of upholding the constitutionality of the statute, if possible. Id. at 2–3, 622 S.W.3d at 164. This court will strike down a statute only when there is a clear and unmistakable conflict between the statute and the constitution. Id. at 3, 622 S.W.3d at 164. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Cherokee Nation Businesses, LLC v. Gulfside Casino P'ship , 2021 Ark. 183, at 8, 632 S.W.3d 284. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id.

Section 7-9-111(i) provides:

(1) When a statewide initiative petition or statewide referendum petition is submitted to the Secretary of State for determination of the sufficiency of the signatures, the Secretary of State shall submit the ballot title and popular name of the proposed measure to the board for certification as required by Arkansas Constitution, Article 5, § 1.

(2) The board shall determine whether to certify the ballot title and popular name submitted for a proposed measure within thirty (30) days after the ballot title and popular name are submitted by the Secretary of State under subdivision (i)(1) of this section.

(3) If the board determines that the ballot title and popular name, and the nature of the issue, is presented in a manner that is not misleading and not designed in such a manner that a vote "FOR" the issue would be a vote against the matter or viewpoint that the voter believes himself or herself to be casting a vote for, or, conversely, that a vote "AGAINST" an issue would be a vote for a viewpoint that the voter is against, the ballot title and popular name of the statewide initiative petition or statewide referendum petition shall be certified to the Secretary of State to be placed upon the ballot if the signatures on the statewide initiative petition or statewide referendum petition are determined to be sufficient.

(4)(A) If the board determines that the ballot title or popular name, or the nature of the issue, is presented in such a manner that the ballot title or popular name would be misleading or designed in such a manner that a vote "FOR" the issue would be a vote against the matter or viewpoint that the voter believes himself or herself to be casting a vote for, or, conversely, that a vote "AGAINST" an issue would be a vote for a viewpoint that the voter is against, the board of [sic] shall:

(i) Not certify the ballot title and popular name;

(ii)(a) Notify the sponsors in writing, through their designated agent, that the ballot title and popular name were not certified and set forth its reasons for so finding.

(b) If the ballot title and popular name are not certified, the sponsor shall not submit a redesigned ballot title or popular name to the board; and

(iii) Notify the Secretary of State that the ballot title and popular name were not certified.

(B) If the ballot title and popular name are not certified under subdivision (i)(4)(A) of this section, the Secretary of State shall declare the proposed measure insufficient for inclusion on the ballot for the election at which the statewide initiative petition or statewide referendum petition would be considered.

(Emphasis added.)

Petitioners contend that ...