Maryland’s highest court stops medical marijuana hearing
The Baltimore Sun
June, 2, 2017, Erin Cox
The Court of Appeals blocked a Baltimore judge from holding a scheduled hearing about whether to put the entire cannabis program on hold. While the fledgling industry can move forward for now, its future is far from certain.
The underlying lawsuit still remains, and it seeks to throw out the process used to pick medical marijuana growers because the state did not consider racial diversity.
The high court issued a stay in the case “until further notice,” but did not reveal what issues it would consider.
The ruling came after lawyers representing 13 of 15 companies selected to cultivate marijuana asked the Court of Appeals to stop the hearing so they could have a voice in the process.
“Our clients played by the rules and have spent hundreds of millions of dollars,” said Alan Rifkin, an attorney for the growers. “They have a right to be heard.”
Circuit Judge Barry Williams last week issued a temporary restraining order to prevent the Maryland Medical Cannabis Commission from issuing any more marijuana growing licenses. So far, just one has been issued.
Williams had ruled that companies without final licenses were not permitted to have a say in whether the entire licensing process should be stopped. The companies appealed that ruling.
“We’re happy that we can move forward,” said Jake Van Wingerden, chairmen of the Maryland Wholesale Medical Cannabis Trade Association, which represents most marijuana growers. “The battle is not over. We won a skirmish.”
Van Wingerden, president of SunMed Growers in Cecil County, estimated the growers, processors and dispensaries picked by the state have already invested more than $150 million in setting up their businesses and seeking final licenses.
Patrick Jameson, executive director of the medical cannabis commission, declined to comment “while we are awaiting further clarification from the Court of Appeals.”
John Pica, an attorney representing a firm trying to restart the licensing process, declined to comment except to say, “We’re anxiously awaiting the next step.”
Pica represents Alternative Medicine Maryland, one of about 130 companies that applied to grow marijuana but was not among the 15 selected cultivators.
The company alleges the commission broke the law by not considering racial diversity when picking growers for preliminary licenses. Alternative Medicine Maryland, which is led by an African-American doctor from New York, said the commission illegally disregarded a provision in state law instructing it to “actively seek to achieve racial, ethnic and geographic diversity when licensing medical cannabis growers.”
None of the 15 companies selected is led by African-Americans. Assistant Attorney General Heather Nelson, who represents the commission, has argued in court the commission satisfied the law by advertising the program to a broad audience.
Williams ruled late last month that the commission should stop issuing final licenses until after Friday’s full hearing on the relative harms of halting an industry before it got off the ground or letting it move forward with a “potentially unconstitutional” decision at its foundation.
The Court of Appeals’ one-page ruling put that hearing on hold without saying why and without telling lawyers what’s next.
Gregory Dolin, professor and co-chair of the Center for Medicine and Law at the University of Baltimore School of Law, said the ruling is typical for an emergency situation.
In general, Dolin said, such emergency stays suggest “the court doesn’t have time to figure out its next steps, but they see that things could progress in a way that can’t be unwound.”
Patient advocates and the companies that won in the initial selection process rallied outside Baltimore Circuit Court Friday morning, protesting any further delays to launching the medical marijuana industry.
Lawmakers legalized medical marijuana more than four years ago, and Maryland’s program has been among the slowest in the country to get off the ground.
At a podium on the sidewalk outside the courthouse, Carey Tilghman’s 20-month-old daughter, Raina, clapped and climbed over her mother as Tilghman explained how she needs medical marijuana oils to tamp down the seizures that started rattling Raina when she was 7 months old.
“I don’t want to put any more Valium in this baby,” said Tilghman, who lives in Washington County. She said oils derived from hemp have been helpful, but “we need something stronger.”
“No more delays. We can’t wait,” she said.
The racial diversity case is just one challenging how the state settled on which companies get to grow the drug, a license estimated by industry analysts to be worth several million dollars apiece.
In a separate lawsuit, a firm bumped out of the top 15 winners alleged that the commission broke its own regulations when it made geographic diversity among growers more important than other criteria. That lawsuit is still pending.
Meanwhile, the state’s Legislative Black Caucus is pushing Gov. Larry Hogan and legislative leaders to reconvene the General Assembly in order to oust members of the marijuana commission and issue five more licenses to grow the drug. Legislation drafted for the potential special session would award those licenses to minority-led firms, pending the outcome of a legally mandated diversity study.
Kate Bell, a lawyer for the advocacy group Marijuana Policy Project, said Friday’s hearing illustrates why it should be the legislature, and not the courts, that fixes whatever problems might exist with how initial licenses were issued.
Most civil lawsuits, she said, have just a few involved parties. But this case impacts dozens of businesses and thousands of patients who have waited more than four years for the state to get its medical marijuana program up and running. So far, more than 6,500 patients have registered to use the drug.
“All of these competing interests should be heard by our representatives in the General Assembly,” Bell said. “This is something that should be resolved by elected officials who have accountability to the taxpayers, not the court.”