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Some drastic options were on the table for consideration Tuesday in the court of Montgomery Circuit Judge James Anderson, but the consolidated suit against the Alabama Medical Cannabis Commission continues largely unaffected.
The master case is often confusing even to the parties involved, with so many different lawyers that several said it was hard to keep up with the status of all of the filings in the case.
The most meaningful action taken by Anderson was to deny the AMCC’s motion to dismiss the lawsuit. He also agreed to allow a new temporary restraining order to be issued, but both parties are required to work on the language of that document.
An existing TRO is being appealed for technical reasons, so Alabama Always attorney Will Somerville said it would be good to get a backup in place.
If both sides can agree, the TRO could allow investigative hearings to begin by the commission. But lawyers for denied applicants said the process must be clear to assure them their rights will be protected, and the TRO must prevent the Commission from issuing licenses.
Somerville told Anderson there are only two ways he believe the case can be resolved—either require the Commission to write new rules and restart the process or assign a special master.
Anderson indicated he doesn’t feel that a special master is necessarily appropriate in this case, but Somerville said after the hearing that he plans to bring that potential solution forward again.
“The combination of the urgency and the Commission’s failure to do their job is an exceptional condition to allow the appointment of a special master to allow the court to move the process forward,” Somerville told Anderson. “That’s the only way it could get done any time soon.”
The lawyers went back and forth Thursday about whether the Commission is abiding by the Alabama Administrative Procedure Act.
Specifically, Somerville challenged the idea that the award of licenses doesn’t fall under the contested case provisions of the AAPA.
“Their argument … is flatly contradicted by the administrative procedure act mandatory for all agencies in the state,” Somerville said. “It’s simply an untenable argument that this is not a contested case.”
Counsel for the Commission said the investigative hearing would give the plaintiffs due process to show why a company awarded a license should not have one issued to them, but the defendants and Anderson questioned what relief would be available.
Anderson noted that “in a perfect world” where the Legislature had not limited the number of licenses, applicants denied a license could simply appeal and be granted a license if they proved that were qualified.
But because the commission can only hand out five integrated licenses, Anderson said, “they don’t have that luxury.”
