“Even during an emergency, the Governor does not have unreviewable authority and may not disobey constitutional constraints.”

As we have noted in multiple updates on COVID-19 and cannabis in Mass, Governor Charlie Baker’s March 23 order for non-essential businesses to cease in-person operations allowed package stores to remain open, but temporarily stopped recreational pot sales.

In response to that position, which puts the Commonwealth out of step with all other states that have legal cannabis, one group of shop owners is suing Baker for the decision, and yesterday they were dealt a predictable blow, but with some sugar on the side. Rejecting an emergency motion filed by attorneys for Millis-based CommCann, a Superior Court judge wrote:

Plaintiffs contend that it is arbitrary for the Governor to allow sales of medical marijuana and alcohol while barring sales of non-medical cannabis during the current public health emergency. They claim this distinction violates constitu- tional guarantees of equal protection. Plaintiffs seek an injunction to bar enforcement of these orders against them.

The Governor’s argument that the Court cannot even consider Plaintiffs’ claims is without merit. Although the declaratory judgment statute does not apply to the Governor, Plaintiffs may seek injunctive relief to remedy an alleged constitutional violation. Even during an emergency, the Governor does not have unreviewable authority and may not disobey constitutional constraints. 

Nevertheless, the ruling continued:

The Governor was not legally required to implement a different alternative or ensure that his emergency closure orders impose the smallest possible economic burden on adult-use marijuana establishments. The Governor had to craft and issue these orders in rush in order to help protect the people of Massachusetts from a virulent pandemic. Since the choice made by the Governor was constitutional, the Court may not second-guess it. 

It’s not a win, though there is some additional language worth checking out, like this section from under the header Rational Basis and Less Burdensome Alternatives:

The Governor offers two main justifications for not exempting retail adult-use marijuana establishments from his closure orders. One is that, because at present relatively few such businesses are licensed to open, they have tended to attract large crowds of customers. The other is that, because non-medical marijuana cannot be purchased in bordering states, Massachusetts adult-use sales outlets also attract many customers from out of state travelling into Massachusetts.

Plaintiffs convincingly argue that both of these concerns could be addressed without compelling all adult-use marijuana establishments to remain closed. 

In a statement from the Commonwealth Dispensary Association, CDA President David Torrisi said, “While the ruling, which confirmed Gov. Baker’s executive authority, was expected, we are encouraged by the judge’s acknowledgement that the cannabis industry has several tools at its disposal which would allow adult-use cannabis shops to reopen without harming public health or safety—including limiting sales to Mass. residents, reserve ahead ordering and curbside pickup.

“The CDA maintains that our industry is well suited to operate in this environment due to the regulations we are held to and we should be allowed to resume. We look forward to continuing the conversation with the Administration around reopening adult-use shops.” Neither the CDA, nor any of its membership, are directly involved in the lawsuit.

Jim Borghesani, director of communications for the 2016 legalization campaign and a cannabis industry consultant, wrote to reporters after the decision: “While we obviously wish the decision went the other way, we’re pleased that Judge Salinger included in his ruling the assumption that the governor can lawfully restrict adult-use cannabis sales to Massachusetts residents during the current crisis. We’re also thankful for the judge’s mention of safety measures retail facilities can take to protect public health and safety. We repeat our call for Gov. Baker to allow retail cannabis sales, just as he allows retail liquor sales.”

This article is syndicated by the Boston Institute for Nonprofit  Journalism’s Pandemic Democracy Project. Contact pdp@binjonline.org for more information.

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