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A Montgomery Circuit Court is moving forward with limited discovery in a lawsuit against the Alabama Medical Cannabis Commission.
Mike Jackson, attorney for the AMCC, told Judge James Anderson he came prepared to argue against discovery altogether, but chose not to make that argument in apparent deference to the court.
Anderson is limiting plaintiffs to six depositions of AMCC Director John McMillan and five commission members. AMCC attorneys attempted to limit those depositions to just four hours each, but Anderson granted the federal standard of seven hours to depose subjects.
The bulk of the hearing Wednesday was spent with about a dozen different attorneys weighing in on the AMCC’s claim that certain questions should be off limits because the commission has “deliberative privilege.”
Anderson ultimately decided that the depositions could move forward and did not block plaintiffs’ counsel from asking specific questions, but said AMCC attorneys can assert the privilege during the depositions. Those assertions could then be reviewed by Anderson on a case-by-case basis.
“That’s how it should be done,” Will Somerville, counsel for Alabama Always, said following the hearing Wednesday.
The numerous attorneys representing many different companies and the commission did their best to sway Anderson as to whether that privilege actually applies to a governing body such as the AMCC.
Plaintiffs pointed to the Alabama Open Meetings Act, which specifically states that the “deliberative process” is to be public.
AMCC counsel argued the meetings are public record, but that individual commissioners’ mental process for determining how they ranked companies goes too far.
Plaintiffs argued they need to be able to ask commissioners why they made decisions to discover whether those decisions were arbitrary and capricious, violating rules under the Alabama Administrative Procedure Act.
They told Anderson they could demonstrate that the rankings are ultimately arbitrary.
Ben Epsy, attorney for Bragg Canna, argued that the ranking of a single commission member dragged the company’s average score down enough to place the company seventh on the list.
The commission only made it to the sixth applicant on the list before it had awarded its statutory limit of five licenses, leaving Bragg Canna without a chance at a license.
Espy pointed out that Harvey ranked Sustainable Alabama 29th, but when it came time to vote, voted in favor of awarding the company a license.
“If you put me at 29, that means I’m in the bottom five,” Espy said. “How can you vote yes with somebody who’s in your bottom five unless your ranking is completely arbitrary? And that’s exactly what it is.”
But Jackson told Anderson the ranking was only to determine in what order to consider the licenses.
“They continue to harp on that and try to convince your honor that the rankings are what the awards were based on,” Jackson said.
As Espy explained how Harvey’s rating dragged down Bragg Cann’s score, Jackson remarked “So what?” Plaintiffs told Anderson that remark amounts to an admission that the ranking process was arbitrary.
The AMCC also continued a line of argument that this is the improper time to allow discovery as the procedure gives opportunity for relief with an investigative hearing.
Plaintiffs, however, argue that they need discovery before any investigative hearing or they will have nothing to argue before the administrative law judge that they deserved the license over another applicant.
It’s unclear exactly when the depositions will be completed—plaintiffs are seeking documents that were before commissioners before conducting depositions—but Anderson said he still intends to move forward with the next scheduled hearing on Feb. 28.
