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A Tale of Two Initiatives: Big Trouble In Little Rock

September 9, 2016
The Arkansas state capitol building is located in Little Rock. Completed in 1915, construction on the capitol began in 1899. The building is a replica of the U.S. capitol building in Washington, D.C. and is often used as a location for the filming of movies.
What in the world is going on in Arkansas? The state has not one but two initiatives to legalize medical cannabis on November’s ballot. Both of have been hit with challenges in court. One is now facing legal pushback from a surprising source: a member of NORML’s legal committee.

The key players in this convoluted tale are one-time colleagues turned friendly foes, divided on how medical marijuana should be implemented in Arkansas.

Attorney David Couch previously worked on the 2012 campaign with the Arkansans for Compassionate Care, an initiated state statute that, in his words, “we lost by the hair of our chinny-chin-chin.” His proposal is on November’s ballot as the Arkansas Medical Marijuana Amendment.

Melissa Fults and Ryan Denham have spent years working on their medical marijuana initiative, whose ballot title, the Arkansas Medical Cannabis Act, or Issue 7 on the ballot, was approved by former Attorney General Dustin McDaniel. Fults and Denham have spent the past two years gathering signatures and support for the measure, mostly through grassroots efforts but also with the assistance of paid canvassers.

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Arkansas Puts Medical Cannabis on the November Ballot

Why two separate initiatives? Because the advocates couldn’t agree on a few key issues.

As Couch explains it, home cultivation remains the biggest source of contention. “They don’t like my initiative, because theirs has a provision that would allow people to grow your own and mine doesn’t. Through all my polling, I don’t think the people of Arkansas will vote for one that includes a grow-your-own provision.”

Another disagreement comes down to ballot language, specifically phrases in the Arkansas Medical Cannabis Statute such as “cannabis care centers” in reference to dispensaries, and even the word “compassion,” as Denham explained. “Their reasoning says that when we use the word ‘compassionate,’ they call that political coloring, saying that we drafted our title in a partisan way that could alter how people understand and interpret the title.”

Both initiatives are on the ballot. But that could change with the drop of a gavel in court.

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Group Asks Arkansas Court to Block Medical Marijuana Measure

A third group, Arkansans Against Legalized Marijuana, has filed a lawsuit against both initiatives. The group is headed up by psychiatrist Melanie Conway and includes the Arkansas Chamber of Commerce, the Arkansas Farm Bureau, and the Family Council Action Committee. The lawsuit challenges the ballot titles under the guise that they are misleading to the public and should be thrown out.

David Couch laughed at the thought of them going after his title. “Mine was approved by the Republican attorney general in Arkansas, so if I get to the end of the process [of the lawsuit], I can say, ‘Hey, your team approved it. You’re criticizing your own Republican AG.’”

Although the lawsuit takes issue with the ballot title for each initiative, the legal action is technically filed against Secretary of State Mark Martin, whose authority “takes ownership” of the measures once they’ve been approved for the ballot. Martin’s office has filed a motion to dismiss the lawsuits. Meanwhile, the clock is ticking. “We only have 60 days left until the election,” Denham said. “For the Supreme Court to hear this case with oral arguments, that would take time—and they’re running out of time.”

The lawsuits were annoying but, for the sponsors of both initiatives, they weren’t exactly a surprise. “We expected that we were going to face a lawsuit that tried to get us off the ballot,” Ryan Denham told Leafly earlier this week. “We had that happen in 2012, but we prevailed. Usually one of the lowest hanging fruits to try to kick someone off the ballot is to go after their ballot title.”

Then last Friday a wild card got thrown into the game.

“What do you mean NORML is suing us?“
Ryan Denham, Arkansans for Compassionate Care

Arkansans for Compassionate Care received word last week that they were on the receiving end of yet another lawsuit. This time the attack came from a wholly unexpected source: Kara Benca, a Little Rock criminal defense attorney and lifelong member of the NORML legal committee. Her suit went after the Arkansas Medical Cannabis Act but not the Arkansas Medical Marijuana Amendment.

Denham was shocked. “I started getting messages saying, ‘NORML is suing you.’ And we were confused, like, ‘What do you mean NORML is suing us?’” he said.

Upon further investigation, however, things were far from what they seemed.

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Is Arkansas Ready for Medical Cannabis?

“Basically the NORML legal committee is a way for attorneys to advertise their legal services on their site [for people who] might get arrested for cannabis,” said Denham.“It’s just an advertising thing. She in no way represents NORML at all. NORML has already condemned the lawsuit and said they do not support it.”

Leafly confirmed this with the NORML’s Arkansas chapter. Glen Schwarz, executive director of Arkansas NORML, expressed his disbelief upon hearing news of the lawsuit. “I was shocked to hear that a member of the NORML legal committee was pressing this lawsuit,” Schwarz said. “We do not support this lawsuit.” On the contrary, he insisted, “We do and will continue to support both initiatives.”

If Benca represents the cannabis community, then why the lawsuit?

Benca’s law firm didn’t respond to Leafly’s request for comment.

“If you don’t follow the rules, then the signatures that were collected don’t count.”
David Couch, Arkansas Medical Marijuana Amendment

Couch walked through the specifics of Benca’s lawsuit, as best as he could figure it. “In 2013 … our General Assembly changed a lot of the laws in regards to canvassing, specifically in regards to how you have to do paid canvassers,” he said.“Benca’s lawsuit basically says that the Cannabis Act canvassers didn’t follow the rules. If you don’t follow the rules, then the signatures that were collected by those who didn’t follow the rules don’t count. And if you take those away, then they’re below the number they need to get on the ballot.”

Denham expressed confidence in the signatures, the canvassers, and the process undertaken to bring the Medical Cannabis Act before voters. “Our campaign did diligent work following the rules to ensure that everything was done properly and that all paid canvassers’ work was done properly,” he said, reflecting on the unusual circumstances of the campaign.

“Fighting a competitor and then fighting the normal opposition groups — and now having two suits against us,” he chuckled dryly. “It’s been an interesting one.”

Lisa Rough's Bio Image

Lisa Rough

Lisa is a former associate editor at Leafly, where she specialized in legislative cannabis policy and industry topics.

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  • massman

    Just Legalze it!

  • Nancy McShane

    Those of you voting in Arkansas this election have many important issues to decide upon. Among them: Who will lead our nation for the next four years and whether your fellow Arkansans who suffer chronic pain, migraines, the harsh effects of cancer treatment, MS, seizures, fibromyalgia, anxiety, depression, PTSD, and many other disorders of the body and mind will have access to safe, effective and non-addictive medical treatment for their health problems. Or will they be stuck in an endless cycle of polypharmacy, the endless round of prescription drugs given to them by well-meaning doctors who have scant time to review each patient’s prescription history. They will remain on opiates, mood stabilizers and antidepressants which battle for dominance in over the chemicals in their brains, forever throwing out of balance the delicate environment that makes us each unique. Turning us into one more easily controlled drugged-out zurg instead of a productive member of society, which micro-dosing with medical marijuana can turn you back into.
    Hop off the opiate train and get on board by voting for the 2016 Arkansas Medical Cannabis Act—Issue #7 on the November 8 ballot and only Issue #7.

  • Nancy McShane

    The decision for Arkansans should be an easy one. The correct Medical Marijuana Act to vote for is Issue #7; The 2016 Arkansans for Compassionate Cannabis Act.
    There’s no need to also vote for Issue 6, the Johnny-come-lately medical marijuana bill. It will only draw votes away from the original medical cannabis bill; the one compassionately crafted and nearly won in 2012.
    To vote for both in a misguided attempt to get at least one law passed may end up defeating both. The only way to serve the people of Arkansas in the compassionate manner they deserve is to vote for Issue #7 and only issue #7 because the medical marijuana bill that receives the most votes of the two will become state law. I believe Issue #7 comes closest to meeting Arkansans needs: the ability to grow their own plants—crucial if you live far from a dispensary—tax revenues in excess of monies necessary to administrate the program will go into a fund to provide medical marijuana on a sliding scale to low-income patients. That’s compassion Arkansas style.
    The author of the bill known as Issue 6 was on board with the Arkansans for Compassionate Care who sponsored the first medical marijuana bill in 2012 and tried to get it on the ballot in 2014 (but failed because of a miscommunication in the deadline for turning in petitions). In the first attempt to pass the legislation in 2012 it lost 49%-51% and during the intervening years the American public’s become more receptive to the idea of marijuana as a part of everyday life.
    A large majority of Americans favor decriminalization for those who are wrongly imprisoned for possession of personal-use amounts of marijuana, which is estimated to save upwards of $29 billion dollars in police, court and costs to house them in correctional facilities; more than of 80% believe medical marijuana should be available for those suffer from debilitating illnesses; and 54% favor legalization for adults who want to enjoy a buzz from a substance far less deadly than legal alternatives like tobacco and alcohol.