UPDATE: Late this afternoon, the Arkansas Supreme Court ordered Secretary of State John Thurston to keep counting signatures collected in support of a constitutional amendment that would expand the state medical marijuana program.
Thurston must file a report by Friday, the court said. Here’s the order.
On Monday, Thurston said the marijuana group’s petition fell 2,664 signatures short of the 90,704 required to make the November ballot. But Thurston did not count about 18,000 signatures that he said were not valid because of a paperwork issue. The court told Thurston today to count the 18,000 signatures until the 90,704 threshold or just beyond is met. But the fate of the amendment ultimately depends on how the court handles an underlying legal question concerning the paperwork issue in question.
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Earlier, Chief Justice Dan Kemp and Associate Justice Courtney Hudsonrecused themselves from the lawsuit, which was filed Tuesday by Bill Paschall, a member of Arkansans for Patient Access.
Under state law, Gov. Sarah Sanders must choose replacements for Kemp and Hudson. Sanders can choose among practicing Arkansas lawyers with at least eight years of experience and retired judges.
Associate Justice Karen Baker issued a letter to Sanders today asking the governor to appoint “special associate justices” to replace them on the case.
Sanders has close ties to several people campaigning against the medical marijuana expansion. Stronger Arkansas, a ballot question committee opposed to the medical marijuana amendment and other causes, was formed in March by Sanders’ campaign manager Chris Caldwell. Other committee members include Vicki Deere, the mother of Sanders’ deputy chief of staff Judd Deere, and Cathy Lanier, Sanders’ campaign treasurer in 2022.
Stronger Arkansas has been linked to flyers that have attempted to tie the medical marijuana amendment to Chinese business interests. The group’s messaging has included the phrases “Reject China’s pot fields in Arkansas” and “China wants you to sign. Decline!”
Last week, a Bismarck woman filed an ethics complaint against Caldwellrelated to some of Stronger Arkansas’s contributions.
Kemp and Hudson did not say why they are recusing from the case. Neither Kemp nor his wife hold ownership interest in any Arkansas medical marijuana business, according to Medical Marijuana Commission spokesman Scott Hardin. Neither do Hudson or either of her ex-husbands, Hardin said.
On Monday, Thurston said the marijuana group’s petition fell 2,664 signatures short of the 90,704 threshold to make the November ballot. But Thurston did not count about 18,000 signatures that he said were not valid because paperwork associated with the paid canvassers who collected them had not been signed by the sponsor. Those documents had been signed by representatives of a canvassing company, which Thurston said was not acceptable.
Yesterday, Paschall filed the lawsuit asking the court to force Thurston to count the remaining signatures, appoint a special master to review the case and to expedite the case.
Today, Arkansas Attorney General Tim Griffin’s office filed its responses in the case, saying the court should deny the petitioners’ request to force Thurston to count the signatures. Thurston and Griffin have argued that only the sponsor, and not someone working on the sponsor’s behalf, can sign those documents. The attorney general’s office said the state has an interest in making sure paid canvassers understand their legal requirements.
“These interests are only met when the sponsor — not paid canvassers themselves — make the certifications,” the filing stated.
Sponsors are required to provide paid canvassers with a handbook and an explanation of Arkansas law, the attorney general’s office said.
“These provisions and requirements would make little sense if paid canvassers could make the attestations required of sponsors,” the filing stated.
The attorney general’s office also opposed the request for a special master, saying there were no factual disputes in the case. Griffin did not oppose the request to expedite the case.
Protect Arkansas Kids, a ballot question committee formed to oppose the medical marijuana amendment, filed a motion to intervene in the case today. Protect Arkansas Kids was formed by Jim Bell of Little Rock but is supported by Smart Approaches to Marijuana, a national anti-marijuana group.
Protect Arkansas Kids argued in a court filing that it would like to raise issues related to the marijuana amendment’s ballot title and popular name, issues that had not been raised in the existing case. The filing did not provide the group’s specific objections to the ballot title or popular name but asked for a briefing schedule to address the issues.
Protect Arkansas Kids also opposed the appointment of a special master in the case.
Arkansans for Patient Access said it was not opposed to Protect Arkansas Kids joining the case and suggested a briefing schedule over the ballot title and popular name should begin immediately.
The case comes as Supreme Court intrigue is running high amid an intra-court dispute over the release of email correspondence between a former court staff attorney and Hudson. The infighting led to five justices referring Hudson to a judicial discipline committee. Justice Baker then issued a scathing dissent and referred the five justices to the same judicial discipline committee.
Casino case impact
The sponsor signature issue has impacted more than just the marijuana amendment.
Earlier this year, Thurston and Griffin argued in a case over an amendment to restore abortion rights in Arkansas that only sponsors can sign the paid canvassers’ paperwork. The Supreme Court ultimately rejected the abortion amendment but did not rule on the sponsor signature issue.
The sponsor signature issue has also been raised in a separate case over an amendment regarding a casino license in Pope County, and the Supreme Court asked a retired judge to sit as a special master to determine the facts in that case. The special master issued a report in September that said state law does not prohibit an agent from signing the documents in question on behalf of a sponsor.
While the special master’s report is nonbinding, it seemed to be a positive development for both supporters of the casino amendment and supporters of the marijuana amendment, which is facing the same issue. The marijuana group is not a party to the casino case but a ruling in that case could impact the future of the marijuana amendment.
The court’s decision on the casino case could come this week or next week.
Griffin has said the special master’s findings on the sponsor signature issue were matters of law and not matters of fact and should not be of consequence to the Supreme Court. The filing by the attorney general’s office today reiterated that position.
“But that special master’s report is irrelevant because—as the Court well knows—special masters are appointed to find facts, not reach legal conclusions,” the filing stated.
The marijuana amendment would expand access to the state medical marijuana program by expanding the types of medical professionals that could certify patients for the program to include nurse practitioners, physicians’ assistants and pharmacists. The amendment would also allow those medical professionals to certify patients based on any debilitating condition, not just the existing 18 qualifying conditions. The amendment would also extend the length of a medical marijuana card from one year to three years and eliminate the $50 charge for a card. The amendment would eliminate the state restriction that prohibits dispensaries from selling pre-rolled joints and would allow patients to grow some plants of their own.