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December 12, 2017

Inside the Legal Challenges to Arkansas’ Medical Marijuana Proposals (Erika Gee Commentary)


Although both medical marijuana proposals have been certified to be on the ballot Nov. 8, any one of the three lawsuits pending before the Arkansas Supreme Court could prevent the votes cast from being counted. This commentary will take a closer look at the issues identified by those legal challenges and what to expect as the court considers them.

As of this writing, two legal challenges have been filed against the Arkansas Medical Cannabis Act (AMCA) and one has been filed against the Arkansas Medical Marijuana Amendment (AMMA). 

As I previously wrote, the two measures are similar but have significant points of divergence. Perhaps most notably, the AMCA would allow patients to grow marijuana at home, while the AMMA would not. 

AMCA Challenge

The first lawsuit against the AMCA was filed by Conway physician Melanie Conway and Arkansans Against Legalized Marijuana on Aug. 24, on the basis that the ballot title “fails to convey an intelligible idea of the scope and import of the proposed Act.”

Specifically, Conway argues that the ballot title falsely tells voters:

  • that the act limits the use of marijuana “when in fact there is no limit.”
  • the number of “cannabis care centers” (dispensaries) will be limited when “the number is potentially unlimited.” 
  • that all marijuana will be tested for quality, safety and potency although home-grown marijuana will not be tested.

Conway also charges that the ballot title fails to inform voters that the act would allow the sale of food and drink containing marijuana; that it is misleading regarding the effect on employers, landlords, churches and schools; and that its language impermissibly appeals to the “sympathetic instincts of the voters.” She expanded these arguments in an amended complaint filed the next day. 

In its response, the act’s sponsor, Arkansans for Compassionate Care 2016, spends a good portion of its brief summarizing the history of marijuana and the current status of its regulation, arguing that “[m]ost of America has access to medical marijuana. Arkansas should get to vote on this question, too.” The group insists that the ballot title is not required to address every possible contingency and that it is not misleading.

The legal arguments in this case were completed on Sept. 12. Since the court denied Conway’s request for oral argument on the case, the court could issue its decision at any time.

This is not the case for the second lawsuit challenging the AMCA, which was filed on Sept. 2 by Little Rock attorney Kara Benca. Benca’s lawsuit focuses on a number of “incurable flaws” in the process of obtaining signatures on the petitions and asks the court to invalidate the secretary of state’s certification of the measure. 

According to the complaint, at least 15,200 of the 77,516 signatures verified by the secretary of state do not meet the requirements of Arkansas law. If Benca’s lawsuit is successful, the AMCA would fall 5,571 signatures short of the required 67,887 total signatures. 

In its response, Arkansans for Compassionate Care 2016 asked the court to dismiss the entire case, given the short period of time before the election. However, on Sept. 9, the court issued an order appointing former court of appeals Judge John Robbins as special master to hear the evidence and determine whether Benca’s allegations are true. He has until Sept. 28 to complete this task, with legal arguments to be submitted by mid-October. This will give the court only a few weeks before the election to issue its decision.

AMMA Challenge

Finally, on Sept. 6 Arkansans Against Legalized Marijuana filed another lawsuit, this time challenging AMMA, the proposed constitutional amendment. This lawsuit also focuses on problems with the ballot title, making virtually the same points about it allegedly misleading the voters as the group did in its earlier suit against the AMCA. 

This case is still in the very early stages, and the arguments have not yet been fleshed out on either side. Under an order issued on Sept. 8, all of the legal arguments will be submitted by late September, making an early-October court decision a possibility.  

The Legal Standard

So, what will the court be considering in these decisions? 

The legal standard on the two ballot title challenges is clear: “Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law.” The challenge for the court will be whether it agrees that the issues with the two ballot titles which have been identified by Arkansans Against Legalized Marijuana are significant enough to interfere with the voters’ understanding of the issues and proposed law.

In 2012, when the last medical marijuana initiated measure was challenged, the court decided that the ballot title was sufficient and allowed the measure to head to election, where it was narrowly defeated. AMMA organizer David Couch has said that he is confident that the 2016 proposal will prevail, just as the 2012 version did in its challenge. 

But the road to the ballot box may be more complicated than Couch or Arkansans for Compassionate Care 2016 have acknowledged, as the legal issues that have been raised in the 2016 challenges are substantially different than those in 2012. 

This makes it more difficult to predict the outcome of the new lawsuits, but we should have the court’s answer to the first of the three in the next few weeks.


Erika Gee, an attorney of counsel with the Wright Lindsey & Jennings law firm in Little Rock, represents clients in government relations, regulatory and compliance matters. Email her at EGee@WLJ.com.

Although both medical marijuana proposals have been certified to be on the ballot Nov. 8, any one of the three lawsuits pending before the Arkansas Supreme Court could prevent the votes cast from being counted. This commentary will take a closer look at the issues identified by those legal challenges and what to expect as the court considers them.

As of this writing, two legal challenges have been filed against the Arkansas Medical Cannabis Act (AMCA) and one has been filed against the Arkansas Medical Marijuana Amendment (AMMA). 

As I previously wrote, the two measures are similar but have significant points of divergence. Perhaps most notably, the AMCA would allow patients to grow marijuana at home, while the AMMA would not. 

AMCA Challenge

The first lawsuit against the AMCA was filed by Conway physician Melanie Conway and Arkansans Against Legalized Marijuana on Aug. 24, on the basis that the ballot title “fails to convey an intelligible idea of the scope and import of the proposed Act.”

Specifically, Conway argues that the ballot title falsely tells voters:

  • that the act limits the use of marijuana “when in fact there is no limit.”
  • the number of “cannabis care centers” (dispensaries) will be limited when “the number is potentially unlimited.” 
  • that all marijuana will be tested for quality, safety and potency although home-grown marijuana will not be tested.

Conway also charges that the ballot title fails to inform voters that the act would allow the sale of food and drink containing marijuana; that it is misleading regarding the effect on employers, landlords, churches and schools; and that its language impermissibly appeals to the “sympathetic instincts of the voters.” She expanded these arguments in an amended complaint filed the next day. 

In its response, the act’s sponsor, Arkansans for Compassionate Care 2016, spends a good portion of its brief summarizing the history of marijuana and the current status of its regulation, arguing that “[m]ost of America has access to medical marijuana. Arkansas should get to vote on this question, too.” The group insists that the ballot title is not required to address every possible contingency and that it is not misleading.

The legal arguments in this case were completed on Sept. 12. Since the court denied Conway’s request for oral argument on the case, the court could issue its decision at any time.

This is not the case for the second lawsuit challenging the AMCA, which was filed on Sept. 2 by Little Rock attorney Kara Benca. Benca’s lawsuit focuses on a number of “incurable flaws” in the process of obtaining signatures on the petitions and asks the court to invalidate the secretary of state’s certification of the measure. 

According to the complaint, at least 15,200 of the 77,516 signatures verified by the secretary of state do not meet the requirements of Arkansas law. If Benca’s lawsuit is successful, the AMCA would fall 5,571 signatures short of the required 67,887 total signatures. 

In its response, Arkansans for Compassionate Care 2016 asked the court to dismiss the entire case, given the short period of time before the election. However, on Sept. 9, the court issued an order appointing former court of appeals Judge John Robbins as special master to hear the evidence and determine whether Benca’s allegations are true. He has until Sept. 28 to complete this task, with legal arguments to be submitted by mid-October. This will give the court only a few weeks before the election to issue its decision.

AMMA Challenge

Finally, on Sept. 6 Arkansans Against Legalized Marijuana filed another lawsuit, this time challenging AMMA, the proposed constitutional amendment. This lawsuit also focuses on problems with the ballot title, making virtually the same points about it allegedly misleading the voters as the group did in its earlier suit against the AMCA. 

This case is still in the very early stages, and the arguments have not yet been fleshed out on either side. Under an order issued on Sept. 8, all of the legal arguments will be submitted by late September, making an early-October court decision a possibility.  

The Legal Standard

So, what will the court be considering in these decisions? 

The legal standard on the two ballot title challenges is clear: “Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law.” The challenge for the court will be whether it agrees that the issues with the two ballot titles which have been identified by Arkansans Against Legalized Marijuana are significant enough to interfere with the voters’ understanding of the issues and proposed law.

In 2012, when the last medical marijuana initiated measure was challenged, the court decided that the ballot title was sufficient and allowed the measure to head to election, where it was narrowly defeated. AMMA organizer David Couch has said that he is confident that the 2016 proposal will prevail, just as the 2012 version did in its challenge. 

But the road to the ballot box may be more complicated than Couch or Arkansans for Compassionate Care 2016 have acknowledged, as the legal issues that have been raised in the 2016 challenges are substantially different than those in 2012. 

This makes it more difficult to predict the outcome of the new lawsuits, but we should have the court’s answer to the first of the three in the next few weeks.


Erika Gee, an attorney of counsel with the Wright Lindsey & Jennings law firm in Little Rock, represents clients in government relations, regulatory and compliance matters. Email her at EGee@WLJ.com.

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