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The Alabama Court of Civil Appeals on Friday issued a long-awaited ruling in Alabama’s seemingly never-ending medical marijuana licensing fiasco, tossing out a temporary restraining order imposed by Montgomery County Circuit Court judge and dismissing the appeals brought in the case.
It was a ruling hailed by the Alabama Medical Cannabis Commission as a win. It was a ruling hailed by the plaintiffs, a company named Alabama Always, LLC., which had been denied a license to operate, as a win.
That outcome, of course, is impossible. There’s no way both could be winners.
Yet, there was AMCC executive director John McMillan claiming that “we are pleased with the decision,” and that he’s hopeful the decision will “remove the obstacles that have prevented the Commission from completing the licensing process and doing the work the law charged it to do.”
Then there’s Alabama Always’ attorney Will Somerville saying that the appeals court decision gives the company “everything we have been asking for since December of 2023.”
So, who’s right?
It’s hard to see this as anything other than a victory for Alabama Always and the other plaintiffs who have sued the AMCC over its licensing process. And it remains comical that McMillan and others continue to paint the four-year delay in issuing licenses as a product of someone else’s failures, instead of taking responsibility for the commission’s absolute refusal to follow the law.
To be certain, the appeals court decision looks on its face to be a win for the AMCC. While it dismisses the AMCC’s appeals, it does so only because it declares the temporary restraining order to be voided. Removing the temporary restraining order would, again on its face, to lift the roadblock that has stalled out the licensing process.
Even Somerville, when I spoke with him, admitted that his heart sank when he read the initial wording of the opinion.
But then, he read on.
And the full opinion actually lays out pretty much everything the plaintiffs in the case have been arguing for 18 months or so – that the AMCC is governed by the Alabama Administrative Procedures Act and must take certain steps in regards to awarding licenses.
That has been the crux of the lawsuits.
The AMCC was required by the AAPA to hold “contested case hearings” following the awarding of licenses – and before those licenses were physically issued to the winners – and allow companies who felt they were wrongly denied a license an opportunity to challenge the decisions. Those hearings should be overheard by an administrative law judge, who will allow both sides to submit evidence, question witnesses and present their own cases. At the end, after a full record is established, the judge issues a ruling.
For months, the AMCC indicated that it would not hold such hearings but would instead implement some other kind of administrative remedy, but not before it issued the licenses to other companies. That would essentially render the hearings worthless, since even if the companies that challenged the process were victorious, there would be no license available to award them.
The reason the appeals court ruled the way it did Friday is two-fold: The AMCC recently agreed in numerous filings and in oral arguments before the court that it would engage in “contested case hearings” that complied with the AAPA. Also, the AMCC issued its own administrative stay and said it would not issue licenses until those contested case hearings were completed.
With those two issues on the record, the appeals court determined that there was nothing for the court to decide. The AMCC would have to violate one or both for the court to have jurisdiction.
So that’s where things stand. The AMCC will still not issue any licenses for the time being. Instead, it will begin the process of holding hearings based on challenges raised by any applicants who were denied a license. That process will be a fairly lengthy one – somewhere around three to five months – and will result in the AMCC finally stating on the record why the commissioners chose one applicant over another.
Following those hearings, depending on the rulings of the administrative law judge, the licenses will be issued. At that point, the losing applicants will still have the option of filing an appeal with the circuit court and asking for a restraining order. However, at that point, with what should be a thorough record and plenty of evidence to support the decisions, success in court should be hard to achieve, discouraging most failed applicants from pursuing that pathway.
That process is all Alabama Always, and several other applicant plaintiffs, have asked for throughout this ordeal. To put it simply: they don’t believe that some of the applicants who were awarded licenses can meet the requirements of the state’s medical cannabis law – and they believe the game was rigged to help some applicants – and they’ve wanted a chance to publicly expose the corruption and flawed process.
Friday’s appeals court ruling finally gives them that opportunity. And moves us a tad bit closer to getting quality products to desperate patients.
