“If we couldn’t laugh, we’d all go insane,” we were told by the late, ever so great Jimmy Buffett. So before I go into details about the Montgomery County Circuit Court order that threatens to derail Alabama’s medical cannabis program before the train leaves the station, I’m reminded of the scene from the wonderful Farrelly Brothers film Dumb and Dumber when an exasperated Lloyd Christmas (played seemingly effortlessly by then rising superstar Jim Carrey) exclaims, “We got no food, no jobs… our pets’ heads are falling off!”
Short of a quick reversal by the Court of Civil Appeals or some action by the Alabama Medical Cannabis Commission, I’m afraid we’ve reached pets’ heads falling off status for medical cannabis in Alabama. But I still believe in a path forward. Follow along, if you have the stomach for it.
Whitt, You Seem a Little Unhinged. Did Something Happen?
Yes, glad you asked. I mean, yes something happened. I’m reserving a response to the first part.
On Monday — the day after the holiest of days on the cannabis calendar and just days after a hearing during which the Montgomery County Circuit Court heard arguments about whether an emergency rule promulgated by the AMCC in late 2023 and relied upon by the AMCC to conduct public hearings with applicants and award licenses was lawfully enacted — the Montgomery County Circuit Court declared the emergency rule was void and permanently enjoined the AMCC from taking any actions based on the awarding and denial of licenses in December 2023.
The AMCC adopted the emergency rule in 2023 because – as it stated at the time – denying patients access to medical cannabis created a public health emergency and there was not sufficient time to allow for the typical notice and comment period that applies to traditional rules due to the myriad delays in the licensing process to date (which was then more than two years in the making). Notably, at the same time the AMCC issued the emergency rule, the AMCC also entered a non-emergency rule with the same language and, following a notice and comment period, that rule became law in February 2024. It remains on the books.
The AMCC held public hearings and awarded licenses in December 2023. Winning cultivators and processors were actually issued licenses, while dispensary and integrated facility awardees were stopped from being issued licenses when the trial court entered injunctions prohibiting their issuance in the closing days of 2023.
Those injunctions remained in place until yesterday – nearly a year and a half after the licenses were initially awarded – when the trial court concluded that there was no emergency at the time of the emergency rule and, as a result, integrated facility awards were invalid. As a result, the trial court permanently enjoined the AMCC from issuing licenses in the integrated facility category based on the events of December 2023. Although the ruling is limited by its terms to integrated facility licenses, it stands to reason that it will similarly be applied to all categories because the December proceedings for all license categories were conducted pursuant to the now-invalid emergency rule.
So Now What?
I don’t think it’s a stretch that disappointed awardees in the integrated facility category are drafting appeals just as I am pulling links off YouTube for Dumb and Dumber. There is reason to believe the appellate court may, just as it did last month, overrule the trial court or at least put a hold on the effect of the ruling such that the AMCC can begin the investigative hearing process (which is the final substantive step before the issuing of licenses) while the appeal is pending.
Avid readers of Budding Trends will recall that, following a three-hour oral argument, the Court of Appeals issued a unanimous order overturning the trial court with language that suggested the appellate court may be tiring of the continued delay in the litigation. While that court may be inclined to show some deference to the trial court’s conclusion that no emergency existed when the emergency rule was promulgated, I have a sense the Court of Appeals may be more inclined to get this process back on track. Challengers to the trial court’s order have a number of arguments, and I will keep my promise to not bore you with Latin phrases and legalese and minutiae. I do think, however, that the Court of Appeals may view this recent ruling by the trial court with a keen and skeptical eye and with a broader view of what these delays mean to Alabamians seeking access to medicine.
While that is all playing out in the courts, I believe the AMCC may be able to take certain action to keep the process moving forward. First, for example, there is no injunction in place as of this writing that would prevent the AMCC from initiating investigative hearings for any other license categories. The AMCC should move forward with appropriate speed to conduct those hearings unless and until they are ordered otherwise by a court of competent jurisdiction.
Secondly, I believe the AMCC is within its rights to simply have another vote on the integrated facility applications without relying on the results of the December 2023 proceedings. In relevant part, the injunction simply prevents the AMCC “from taking any action in furtherance of the December 12, 2023 awards and denials of medical cannabis licenses in the integrated facility category.” The AMCC should announce that it is going to have a meeting in a month or two. This should allow for AMCC commissioners to review the materials that were presented to it in December 2023 and then vote to award licenses pursuant to the non-emergency rule that took effect in February 2024 and not be subject to the defect the trial court found with the emergency rule. The AMCC has all of the materials it needs in its possession to conduct this new review and issue awards consistent with yesterday’s order.
Onward. Forward.
Randy Pausch was a professor of computer science, human-computer interaction, and design at Carnegie Mellon University in Pittsburgh. In 2007, his doctors informed him that he had pancreatic cancer and had only three to six months left to live. His first task was saying goodbye to the job he loved by participating in Carnegie Mellon’s last lecture circuit – a hypothetical “final talk” – i.e., “What wisdom would you try to impart to the world if you knew it was your last chance?”
The entire lecture is wonderful – heartbreaking and sad but also incredibly powerful and hopeful. I encourage you to give it a view when you have a chance. But one part in particular came to mind as I tried to wrap my head around what the court did yesterday and what it means going forward. He shared a vignette that ended in a professional setback and offered advice for how to deal with a situation when you’ve hit a brick wall:
[R]emember, the brick walls are there for a reason. The brick walls are not there to keep us out. The brick walls are there to give us a chance to show how badly we want something. Because the brick walls are there to stop the people who don’t want it badly enough. They’re there to stop the other people.
We’ve come to yet another brick wall in this tortured litigation, and I wouldn’t blame anyone who was beginning to lose hope that we’ll ever see that light at the end of this winding tunnel. But I remember why the wall is there and how badly we want to launch a medical cannabis program in Alabama. Let’s show how much we want it. Let the brick walls keep the other people out.
Thanks for stopping by.