My goodness. It happened again.
I have literally (yes, literally) lost track of the number of times that the Alabama Medical Cannabis Commission or a court has ordered a halt to the AMCC’s efforts to issue licenses to medical cannabis operators. If you listened to the commission and its counsel today as it announced the latest stay in the process of awarding licenses, you may have come away thinking that the commission was likely to award licenses (for a third time) at it’s next scheduled meeting. Many of those who have been on the roller coaster from the beginning, however, suspect differently.
The cause of the latest delay was a court challenge to the commission’s award of 24 licenses on August 10. Specifically, the challengers alleged that the commission violated the Alabama Open Meetings Act by impermissibly (1) deliberating in executive (private) session when members discussed information that they had learned in the days leading up to the meeting and (2) taking a secret vote. Earlier this week, the court instructed the AMCC and the challengers to meet-and-confer to determine whether they could agree on a way for the AMCC to hold a vote and award, and subsequently issue, licenses in compliance with the Open Meetings Act.
While this seems like a reasonable plan, it has two potentially fatal flaws. First, many of the challengers have no interest in agreeing to a plan allowing for a vote that will almost assuredly result in them not being awarded a license. For example, if an applicant scored extremely low in the blind grading, it is exceedingly unlikely to prevail on a vote of the present commission no matter how many times the commission votes.
The court will likely intervene and decide whether there was a violation of the Open Meetings Act on August 10. If not, proceed to the paragraph below. If so, the court must determine whether the problem can be remedied, perhaps through a subsequent meeting and votes that the court determines comply with the Open Meetings Act. To that end, the head of the commission said yesterday he did not expect the commission to hold another executive session, or closed meeting, to discuss licensing decisions because of the allegations about violating the Open Meetings Act, although he said he did not believe the commission had violated the act.
Second, even if the court somehow puts to bed the Open Meetings Act (either through an agreement amongst the parties or a ruling), there are still myriad challenges to the relevant statute, regulations, and AMCC actions that make issuing a limited number of licenses somewhere between extraordinarily risky and impossible for the time being. As just a few examples, parties have raised questions about whether the AMCC’s promulgation of rules complied with Alabama’s Administrative Procedure Act, whether the fee associated with requesting an investigative hearing following the denial of a license (an amount equal to a license fee, which is $50,000 for an integrated facility license) violates due process, and whether a dissatisfied applicant is required to participate in the administrative appeals process or risk dismissal in any subsequent court filing for failure to exhaust administrative remedies.
That doesn’t include as-yet unasserted claims such as those that specific grades were in error or that a particular submission should have been higher than one of the winning applicants. Those cases will take many months, if not years.
Will the court be willing to allow the AMCC to issue the statutory maximum number of licenses while litigation on those issues is pending? What would happen if the court determined that a plaintiff should have been issued a license? Will a previously issued license be revoked in order to comply with the statutory limits on the number of licenses?
Or will the court restrain the AMCC from issuing licenses until these – and certainly other – issues are litigated to finality? That very well may take years. Would the legislature intervene by amending the law?
One thing seems clear, if this is going to be resolved quickly, the court will have to take a far more interventionist approach to the issuance of licenses and a hard line on challenges to the AMCC’s actions. I’m not sure whether that is the right approach, and it may be that it’s more important to get it right than to get it done fast. Reasonable minds disagree, and I see both sides.
I’ve been following this process since its inception, and I have no idea what is going to happen next. Maybe that makes me an uncreative lawyer, and that might be a more palatable option to me than the alternative – that we may be in a situation that does not lend itself to an expeditious resolution.
One thing I do know is that these words are starting to have a startlingly personal meaning to me and those who have applied for medical cannabis licenses in Alabama:
If it keeps on rainin’, levee’s goin’ to break
If it keeps on rainin’, levee’s goin’ to break
When the levee breaks, I’ll have no place to stay.