My name is Patrick Benca. I am writing this article to explain why my firm, in particular my wife, Kara, recently challenged Issue 7.
It is important that you know that Kara and I are for the outright legalization of marijuana. Period. That has always been our position for as long as we have been seeing clients walk through our doors addicted to methamphetamine, cocaine, and most recently Opioids – you know them better as prescription pills such as oxycodone, hydrocodone, and the like. You are likely aware that these drugs kill unsuspecting souls and the results are nothing short of catastrophic to innocent families and loved-ones. In nearly twenty-five (25) years of combined criminal defense practice, Kara and I have noticed that we see no clients whose lives are devastated by the use of marijuana. For example, no client has ever walked into my door and said “my marijuana addiction has caused me to….” In that same amount of years, I cannot think of anyone that I have represented that was charged with a DWI for being under the influence of marijuana. Cases involving the delivery and transportation would be the obvious exception to this, as marijuana is illegal.
What we have seen walk through our doors are veterans suffering from PTSD and patients that have experienced the benefit of medical marijuana that wanted to know if they could legally use and/or possess. These are wonderful people and their concerns matched our positions. Due to this, we have long advocated and helped those that are proponents to marijuana. Kara is a life member of NORML and long ago began learning all she could as to the subject matter so we can be advocates for the legalization of marijuana. We know the medical benefits through and through. In my opinion, there is nobody more knowledgeable on the subject of medical marijuana than Kara. She has met with veterans, patients, and supporters of the issue and shares in all of your views. It needs to get to these patients in Arkansas immediately. No question.
As most of you know, in 2012 medical marijuana was on the ballot. Prior to it being on the ballot, David Couch and Melissa Fults conducted a poll to see if Arkansas voters were interested in voting for medical marijuana. Their polling of the issue was noteworthy — Arkansas voters indicated by nearly sixty-percent (60%) that they would vote for medical marijuana if it was on the ballot. That is what David and Melissa needed to hear. They put together a grass-roots effort to get it passed. They put together the money, the volunteers, and were successful in getting it on the ballot. However, come Election Day 2012, the votes weren’t there and the marijuana initiative was defeated. It begged the question – how did it not pass when their polling suggested it would. David and Melissa polled the issue with those who voted and found that some Arkansans were not comfortable with the “self-grow” provision in the ballot measure. This self-grow provision would allow patients to grow their own marijuana if they fell outside a defined zone from a dispensary. Kara and I are in support of this provision. However, since it killed the opportunity to get the much needed medicine to patients in 2012, it was deemed problematic.
So, after the defeat and after learning the likely reason for the defeat, David and Melissa went back to the drawing board. Early on they decided that leaving the self-grow provision out of future ballot measures was going to likely fix the issue. However, Melissa soon changed her mind and was committed to another attempt to get medical marijuana passed with a self-grow provision. No doubt in our mind she was thinking of those patients in need who were not physically close to a dispensary. We get that. What we did not get was the risk of dedicating the time and money necessary to get another measure on the ballot with the likelihood of its defeat coming election time. David Couch clearly shared the same concern that we had.
This sets the foundation and background to the two (2) ballot measures that were initially put on ballots for the 2016 Election. Regarding Issue 7, it was discovered very early on that the ballot measure was collecting signatures in violation of Arkansas law. This was a huge concern as it could (and eventually did) result in the ballot measure being defeated even before votes would be counted. David recognized the potential problem with Issue 7, saw that it was doomed to fail, and moved forward with the ballot measure removing the “self-grow” provision, now known as Issue 6.
Issue 6 immediately addressed two (2) obvious concerns of Issue 7 and fixed them. 1) The potential failure of Issue 7 because of the “self-grow” provision and 2) significant issue regarding the signatures being collected in violation of Arkansas law. More importantly, David’s ballot measure was a “constitutional Amendment.” There is a huge difference between an Amendment (Issue 6) and the ballot initiative (Issue 7). An initiative (Issue 7), if passed, would not be implemented until the legislators worked out the details regarding regulations and rules. This has been referred to as “regulatory haze.” Legislators, most of which are not in support of medical marijuana in any form, would be the gatekeeper to getting the law up and running. How many months and/or years would patients have to wait for law makers to decide these regulatory issues? How many sessions and special sessions would we see come and go before patients get their medicine? Issue 6 would not have these issues because the rules and regulations are outlined in great detail in the proposed law. The only thing that needs to be worked out are the rules of implementation with the Arkansas Alcoholic Beverage and Control Board (“ABC”), who is tasked with getting this law amendment up and running. The ABC was chosen as the implementing entity because it is in the best position to regulate medical marijuana and other states have successfully used its version of this entity in getting their into operation. Also, there would be a marijuana committee board (not uninformed law makers) that would oversee medical marijuana in Arkansas. So, the law is better, safer, and less likely to be tampered with. It is also worth noting that no law makers can remove the law because it is an Amendment to the Arkansas Constitution. That means you cannot get rid of it unless the voters decide to get rid of it. That’s a big deal. Once Issue 6 gets passed, it is likely here to stay.
We challenged Issue 7 for the above reasons. In sum: 1) it was going to get a challenge from opponents of medical marijuana and we didn’t want those opponents to have a win and a platform on the medical marijuana issue; 2) Issue 6 (the amendment) is better law and keeps the nuts and bolts of implementation out of law maker’s hands; and 3) the most important issue – it literally clears the way for those patients in need to get the drug nearly immediately after its passage. Something that was not likely with Issue 7.
The biggest question of all – what if Issue 6 was not on the ballot? Issue 7 would have been challenged, as we knew it would, and we knew the result, which would have been – no medical marijuana again in 2016. That is why Issue 6 is on the ballot because the sponsors knew that Issue 7 was going to get challenged and any challenge would have, and did, succeed. Without Issue 6, patients would then be left out on a limb. As passionate advocates for medical marijuana, Kara and I could not let that happen. We could not let opponents of medical marijuana successfully challenge Issue 7 because of the grave consequences it would have on medical marijuana as a whole.
When deciding to find a person to be the petitioner for the challenge, we had the option of putting actual patients, doctors, and other supporters as the “Petitioner.” We did not want patients or doctors or others to be on the receiving end of unfair criticism. These were the people we wanted to protect. So, Kara unflinchingly signed up. That said, she, nor I understood the consequences of that decision. You all are very passionate, and rightfully so, but there is no justification for making the threats that are being made against her, myself, or our children, or saying the hateful things that are being said to all of us.
Since the Issue 7 has been removed, my phone has rang non-stop with nothing but unconstructive rants and varying degrees of threats. Against everyone’s advice, I took several of the phone calls that came in. After being called names and yelled at, the callers were willing to hear my side. Much of what I said here, I told them. I spoke with a big Issue 7 advocate named Tony, a bedridden patient named Toni, and others. They were exceedingly polite once they calmed down. After my discussion with every one of them, they asked me to get these words out to clarify our position and how we ended up here, eleven (11) days before the election. They now “understand,” and want you to know that we want medical marijuana in Arkansas. The asked me to write to you directly.
I also want to clear up another issue. Our petition was filed at the earliest possible time we could in following the statutes and rules. We did not delay and/or wait until the last minute. We filed it as soon as we legally could. The delay is the responsibility of our law makers. The ballots were printed prior to us even getting into a courtroom to make our challenges. For those who are frustrated that “your vote didn’t count,” you have good reason to be frustrated. You have been disenfranchised, in my opinion. This is not the fault of Kara or I, nor is it the fault of the Arkansas Supreme Court. Constructively and peacefully seek out your legislators to fix and pass statutes that allow challenged measures to be made within a timeframe that would allow successfully challenged measures to be removed from the ballot prior to those ballots being printed. The timelines to these challenges as they currently are make it impossible to remove measures after the Secretary of State certifies them for the ballot.
Constructively and peacefully discussing and arguing ideas is one of the most valued and important rights we as Americans, and Arkansans, have. It is what makes this State and our Country great. That being said, I believe that those out there that feel disenfranchised, hurt, confused, or angry, regarding why Issue 7 was taken off the ballot – should look at the background of why we petitioned against it and why we support Issue 6. For the sake of the patients, please Vote for Issue 6. I assure you that our only concern is getting medical marijuana passed and to those patients as soon as possible.