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Recreational Marijuana: Preliminary Injunction Denied in Suit Against MA Governor

April 20, 2020

The Massachusetts Suffolk Superior Court, in a ruling by Justice Ken Salinger on April 16, 2020, denied the plaintiffs’ plea for an emergency preliminary injunction in their suit against Massachusetts Governor Charles Baker, which sought to have recreational marijuana establishments added to the list of “essential” businesses. In making its ruling, the Court came to the conclusion that the plaintiffs were not likely to succeed on the merits of their claims. Among other factors, this resulted in the Court’s decision to deny the plaintiffs’ motion that, if granted, would have permitted recreational marijuana establishments in the Commonwealth to re-open, after their effective closure by executive order of the Governor. The following summarizes a few of the ruling’s key elements.

Court’s Jurisdiction. While the Court determined that the plaintiffs’ claims for declaratory judgment were invalid, as such relief is not available against the office of the Governor, their actions for temporary or permanent injunction are in fact colorable claims under which the case can proceed. In reaching this conclusion, the ruling indicates that although declaratory judgment cannot be provided as a remedy for the alleged violation of equal protection, “the Governor may [not] violate the constitution with impunity.” Following this line of reasoning, the Court explains that the plaintiffs can still obtain relief in the form of a judgment enjoining the enforcement of the Governor’s orders (i.e. restricting the Cannabis Control Commission and other government actors), as opposed to an order from the Court that the Governor take certain affirmative actions.
Constitutionality of Police Powers. In setting up its analysis, the Court explains that state governments (in this case, the Governor of Massachusetts) have broad police powers to impose reasonable restrictions to restrain certain personal liberties and the use of private property in certain situations in order to protect the public. However, such restrictions may not be arbitrary and must be “justified by the necessities of the case.” Thus, as the Court notes, the Governor’s executive orders will pass constitutional muster only so long as they (a) are rationally related to the furtherance of a legitimate State interest, and (b) are not arbitrary and capricious.
Similarly Situated. Despite its ultimate ruling on the injunction being sought, the Court agrees with the plaintiffs that recreational marijuana enterprises are indeed “substantially similar” to medical marijuana establishments and liquor stores. This means that treating recreational marijuana stores differently would necessarily implicate equal protection constitutional issues. The Court concurred that the plaintiffs’ evidence tends to show how those who use marijuana for medicinal purposes frequently make purchases from recreational retail sites instead of their medical counterparts and that marijuana users, both medical and recreational alike, often treat alcohol as an “imperfect substitute”. With this, the ruling shoots down the Governor’s counterargument that different regulatory schemes for each of the three retail sectors equates to constructive dissimilarity, which would have otherwise permitted their different treatment under the Governor’s executive orders.
Less Burdensome Alternatives. The Governor has continuously defended his decision to shut down recreational marijuana facilities by claiming that residents of border states, in which recreational marijuana is not legal, would cross into Massachusetts to procure marijuana and thereby increase the spread of COVID-19. The Court, however, agreed with the plaintiffs’ rebuttal of this argument and their assertions that the Governor’s concerns could be easily remedied with the adoption of measures that would be much less burdensome than across-the-board closures. One such measure, the limitation of sales to just Massachusetts residents, has been cited by the Governor as unconstitutional, alluding to potential violations of the U.S. Constitution’s dormant Commerce Clause. In rejecting this, the ruling describes how a ban on sales to out-of-state residents as a response to the current health emergency would not only fail to disadvantage interstate competition, but also likely succeed the strict scrutiny test applied to such restriction, as any burden on interstate commerce it might impose would be not be excessive in relation to the benefits of limiting the spread of the virus.
Likelihood of Success. Unfortunately for the plaintiffs, even though the ruling voices agreement that recreational marijuana establishments are similarly situated to medical marijuana dispensaries and liquor stores and that less burdensome alternatives to the blanket ban could have been implemented instead, the Court nonetheless deemed their claims to be unlikely to succeed on their merits. The main reasoning for this decision is that the Governor’s executive orders do not violate the Equal Protection Clause simply because the classifications they make are imperfect or because they result in some inequality, exemplified in the ruling’s statement that “equal protection does not demand that a State employ less burdensome alternatives if those are available”. In line with the concept of sovereign immunity, rules and regulations promulgated by the government need not be perfectly tailored, providing government actors with a significant degree of leeway.

Given the broad latitude afforded to the Governor in enacting the executive orders during the instant emergency and the significant burden of proof that the plaintiffs must overcome in order to prove that the orders were either lacking in rational basis or arbitrary and capricious, the Court concluded that the plaintiffs were not likely to succeed on the merits of their claims. Given this deemed unlikelihood of success, a key component in the plaintiffs’ plea for injunctive relief, the Court denied the emergency preliminary injunction sought by the plaintiffs. The immediate result of this decision is that recreational marijuana retail facilities across the Commonwealth will continue to remain closed, until “non-essential” businesses are permitted to reopen. While the plaintiffs do have an option to appeal the ruling, the interlocutory nature of the injunction requires the permission of the Court in order to do so. Meanwhile, despite this temporary setback, the plaintiffs are still able to continue to press their case at large and seek an ultimate determination on its merits, with the potential to overcome what the ruling has deemed an unlikelihood of success.

About the Author: Joshua Robinson

Joshua Robinson is an associate at Burns & Levinson and a member of the firm’s Corporate, Finance, Restructuring, and M&A practices. As a member of the Cannabis Business Advisory group, he represents both borrowers and lenders in connection with loan and other credit-related transactions in the marijuana industry. He also counsels equity investors, operators, consultants, businesses, and other enterprises seeking to enter the cannabis market and advises them on mergers, acquisitions, capital raises, and other corporate and commercial transactions. He can be reached at jrobinson@burnslev.com or 617.345.3541.