Marijuana and the constitutionality of ‘Shall means shall’

by Justin Allen (JAllen@wlj.com) 1 views 

Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.
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“’Shall’ means ‘shall’ and the Sponsor did not comply with the statutes.” – Benca v. Martin, Arkansas Supreme Court, October 27, 2016

The above quote was the concluding statement of the Arkansas Supreme Court’s majority opinion invalidating Issue 7, the Arkansas Medical Cannabis Act. I will now explore how we got to this point, why the Court reached this conclusion and what it means.

In July of this year, I authored an opinion in this space discussing the initiated measures that might be subject to a vote on the Nov. 8 ballot. Those measures addressed medical marijuana (2 of them), casino gaming and medical malpractice lawsuits. Among other things, I noted that one or more them could, and likely would, be challenged in court.

As expected, original actions were filed with the Arkansas Supreme Court contesting all 4 proposals. Three of the proposals were subject to a challenge based on both the validity of the signature gathering process and the accuracy of the ballot title. Now that the litigation dust has cleared, only one of them remains subject to a vote on Nov. 8. That is Issue 6, the Arkansas Medical Marijuana Amendment.

The casino and medical malpractice measures were invalidated based on insufficient ballot titles. Both of them were also subject to a signature gathering challenge, but the Court declined to rule on those challenges since it determined their fate based on the ballot title. Issue 7, on the other hand, survived the ballot title challenge, but was invalidated due to deficiencies in the signature gathering process.

Our State Constitution allows citizens to place measures on the ballot to either amend the Constitution, or pass new laws. To facilitate this process, the General Assembly has passed statutes setting out the rules that must be followed in gathering signatures.

Those statutes underwent a significant makeover during the 2013 legislative session. More specifically, Act 1413 of 2013 adopted requirements in terms of reporting and signature gathering when utilizing paid canvassers. That Act was rather controversial and was challenged in Court on constitutional grounds. In 2015, in McDaniel v. Spencer, the Arkansas Supreme Court upheld the bulk of Act 1413, including the requirements applicable to paid canvassers. As a result, the measures circulated for the 2016 election were the first ones subject to the rules set down in Act 1413.

Under current law as established by Act 1413, a sponsor utilizing paid canvassers must – or SHALL – provide the Secretary of State with a list of all paid canvassers and their residential addresses and obtain criminal background checks on canvassers, among other things. And these steps must be done before the canvasser begins obtaining signatures. A failure to comply will invalidate all signatures obtained by those canvassers.

Kara Benca, the petitioner challenging Issue 7, alleged as follows:
1) There were no background checks for many paid canvassers;
2) Some of paid canvassers gathered signatures before obtaining background checks;
3) Some of the paid canvassers weren’t on the list submitted to the Secretary of State;
4) Some of the paid canvassers collected signatures before their names were submitted to the Secretary of State;
5) The addresses for some of the paid canvassers weren’t residential addresses, or there were no addresses at all; and
6) The canvasser signed petitions before they were signed by the voters.

In a 5-2 decision, the Court agreed with Benca and invalidated 12,104 signatures, leaving 65,412 valid signatures. That was short of the 67,887 required. Justice Courtney Goodson concurred in the decision written by Justice Karen Baker, but reiterated her belief that McDaniel v. Spencer was wrongly decided, and the paid canvasser rules should be deemed unconstitutional.

Chief Justice Brill, joined by Justice Danielson, dissented. Justice Brill noted that, based on the evidence, most of the canvassers were volunteers, and not paid. While there was no proof as to which canvassers were identified as paid on the paperwork, but weren’t actually paid, Justice Brill opined that it was Benca’s obligation to make that showing. As a result, he would not have applied the paid canvasser rules and would have validated all of the signatures.

As stated, this election cycle was the first subject to the requirements of Act 1413.  While the Court construed those requirements strictly in Benca – “shall means shall” – the opinion also serves as some guidance for future initiative efforts. Clearly, compliance will require a great deal of time and attention, but future sponsors should learn a lot from what we have witnessed this election cycle.

Finally, the validity of these requirements, while now settled, could be revisited another day. There was division on the Court in both Spencer and Benca, as to the constitutionality of these rules.

Moreover, with two new justices going onto the Court in January, there could be a different result if and when these issues arise again to our highest court.

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