NICE TRY, MAINE …

Plaintiffs High Street Capital Partners, Inc. and Northeast Patients Group (d/b/a Wellness Connection of Maine) recently sued the Maine Department of Administrative and Financial Services and the Department’s Commissioner, Kristen Figueroa. Their claims is that Maine’s medical marijuana licensing program violated the Dormant Commerce Clause, as it restricted licenses only to Maine residents and resident-owned companies.

The court ruled in the Plaintiff’s favor, finding that such regulations were in fact barred by the Dormant Commence Clause. Maine’s arguments that the Clause is not intended to protect individual rights but is about “preserving a national market and prohibiting state laws that interfere with that market,” were rejected. Instead, the court ruled that the state had failed to prove Congress intended to allow discriminatory regulations, and that Maine’s regulations were exactly the type of that the Clause was meant to protect against.

Northeast Patients Group, et al. v. Maine Department of Administrative and Financial Services, et al.  United States District Court of Maine, 1-20 cv-00468NT.  August 11, 2021.

CLARENCE THOMAS SPEAKS, AND IT’S ABOUT WEED …

In connection with a Supreme Court hearing on an IRS tax code matter involving a medical cannabis dispensary, Justice Clarence Thomas made a rare pro-cannabis statement, questioning the validity of current federal cannabis laws. Given Justice Thomas’s reputation both for being the Court’s most conservative Justice and for hardly ever making comments during proceedings, this was big news for the industry.

Thomas further questioned whether a previous ruling in Gonzales v. Raich, 545 U. S. 1, (2005) was still good law. The court had found that Congress’s power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana,” but Thomas observed that “A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”

Justice Thomas’s five-page statement is worth reading. You can find it at the following link: supremecourt.gov/opinions/20pdf/20-645_9p6b.pdf

Standing Akimbo, LLC, et al. V. United States on Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit No.  20-645.  Decided June 28, 2021

SOUTH DAKOTA TRIES TO AVOID THE INEVITABLE …

In November 2020, South Dakota voters approved Amendment A, which legalized the adult recreational use of marijuana. In response, a group of state law enforcement officials initiated a lawsuit arguing that Amendment A violates the South Dakota Constitution’s single‐subject rule, which restricts amendments to being about only a single subject.

In February, a South Dakota circuit judge agreed with the Plaintiffs, striking down the amendment. The decision is being appealed to the state Supreme Court, and because there are multiple technical and procedural grounds over and above the merits of the legislation, it signals that the will of South Dakota voters will not be overturned.

Some issues on appeal include whether the Circuit Court erred by determining:

• that the County Sheriff and State Highway Patrol Superintendent had standing to sue the State of South Dakota
• that Amendment A violated the South Dakota Constitution because it contained multiple subjects that had no rational relationship
• that Amendment A violated the South Dakota Constitution because it instituted far-reaching changes to South Dakota’s basic governmental plan
• that the Court did not have the legal authority to separate any unconstitutional provisions

This will be interesting to watch. I’ll provide an update when there is a ruling.

Thom, et al. v. Barnett , et al, 2021 SD Appeal No. 29546

And one additional good piece of news: the South Dakota Supreme Court just updated the state’s professional conduct rules to allow attorneys to advise cannabis industry clients. The State Bar’s Ethics Committee had previously ruled that lawyers couldn’t assist a client in establishing or otherwise operating a cannabis business while cannabis remains federally outlawed.

CANNIBIS LEGALIZATION – LEGISLATIVE UPDATE FOR 2021*

Here’s a quick FYI where things currently stand in key states:

• Connecticut — S.B. 1201 — which legalizes and regulates cannabis for adults 21 and older, with a strong focus on equity — passed both chambers during a special session between June 15 and 17; Gov. Lamont signed it into law on June 22, 2021. During the regular session, the Senate passed Gov. Lamont’s S.B. 888, but it ran out of time in the House. H.B. 6377 was a shorter bill focused on equity and labor peace in legalization. It advanced out of the Labor and Public Employees Committee.
• Delaware — HB 150 would legalize and regulate cannabis for adults. On March 24, the House Health and Human Development Committee approved HB 150 in a 10-5 vote. It advanced out of the House Appropriations Committee on June 4 and awaits a House floor vote. The legislature adjourned on June 30.
• Florida — H 291, H 343, H 1361, H 1597, S 664, S 1916, and S 710 would have legalized and regulated cannabis for adults. The legislature’s regular session adjourned without the bills being taken up.
• Georgia — SB 263 would have legalized and regulated cannabis for adults; HR 281 and SR 165 would have referred a constitutional amendment on legalizing cannabis to voters. None advanced before the crossover deadline.
• Hawaii — SB 767, HB 1202, HB 238, SB 1376, SB 704, and HB 7 would legalize and regulate cannabis for adults. The Senate approved SB 767 in a 20-5 vote on March 9 but included an effective date more than 100 years in the future. However, the chair of the House Health, Human Services, & Homelessness Committee failed to grant the bill a hearing before a legislative deadline, thus killing it for the year. The bills carry over to 2022.
• Indiana — HB 1154 and SB 87 would have legalized and regulated cannabis for adults; SB 223 would have legalized possession only; and HB 1117 would have removed penalties for possession or cultivation of up to two ounces of marijuana. None advanced before the crossover deadline.
• Iowa — SF 83 would legalize adults’ possession of up to an ounce; HF 751 would legalize and regulate cannabis and expunge convictions. The legislature’s regular session adjourned without the bills being taken up, but the bills carry over to 2022.
• Kansas — HB 2430 would have legalized and regulated cannabis for adults. It did not advance before a crossover deadline, but it carries over to 2022.
• Kentucky — HB467 and HB461 would have legalized and regulated cannabis for adults. The legislature adjourned without acting on the bills.
• Louisiana — HB 699 (formerly HB 524) would have legalized and regulated cannabis for adults 21 and older. It advanced out of the Committee on Administration of Criminal Justice on April 27 in a bipartisan vote. It was pulled from consideration on the House floor after a companion tax bill (HB 434) was voted down. Another legalization bill, HB 243, also advanced out of the Committee on Administration of Criminal Justice in April, but it did not get a House floor vote. The legislature has adjourned.
• Maryland — HB 32 and SB 708 would have legalized and regulated cannabis for adults. HB 32 received a hearing in the House Judiciary Committee on February 16, and SB 708 received a hearing in Senate Finance on March 4, but neither advanced before a legislative deadline.
• Minnesota — SF 757, HF 151, and HF 600 would legalize and regulate cannabis for adults. On May 13, 2021, the House approved HF 600 to legalize cannabis in a 72-61 vote. The legislature’s regular session has ended, but the bill will carry over to 2022. 
• Mississippi — SB 2768 would have legalized and regulated cannabis for adults; SB 2164 would have legalized cannabis; and SB 2585 would have legalized possession of up to 2.5 ounces. The legislature adjourned without acting on the bills.
• Missouri — HB 325 and HB 263 would have legalized and regulated cannabis for adults; HJR 30 would refer a constitutional amendment on legalizing cannabis to voters. The legislature adjourned without acting on the bills.
• Nebraska — LB5 46 would legalize and regulate cannabis for adults; LR2CA, if approved by the legislature, would refer a constitutional amendment on legalizing cannabis to voters. The Unicameral adjourned without the bill being taken up, but bills carry over to 2022.
• New Hampshire — HB 237 would legalize and regulate cannabis for adults; HB 629 would legalize personal possession and cultivation of cannabis. On January 27, 2021, the Criminal Justice and Public Safety Committee recommended retaining both bills, which would kill them for the year.
• New Jersey — A. 21, S. 21, and A. 1897 implement legalization (which more than two-thirds of voters approved in November 2020). The bills were signed by Gov. Murphy on February 22, 2021, along with a companion bill to set penalties for minors in possession of cannabis.  
• New Mexico — HB 2 (special session), HB 12, HB 17, SB 13, SB 288, and SB 363 — On March 31, the Senate and the House both approved HB 2 (22-15 and 38-32), which legalizes and regulates marijuana for adults 21 and older. Gov. Michelle Lujan Grisham signed the bills into law on April 12.
• New York — S.854, A.1248 — S.854-A legalizes adult-use cannabis in New York and will set up a system for regulated sales. Gov. Cuomo signed it into law on March 31, 2021. The Assembly passed S.854-A in a 94-56 vote on March 30, and the Senate approved it the same day in a 40-23 vote.
• North Carolina — H576, H617, and S646 would legalize and regulate cannabis for adults.
• North Dakota — HB 1420 would have legalized and regulated cannabis for adults; HCR 3031, if approved by the legislature, would refer a constitutional amendment on legalizing cannabis to voters. The House of Representatives approved HB 1420 in a 56-38 vote on February 23, but the Senate voted the bill down, 10-37, on March 25.
• Oklahoma — HB 1961, if approved by the legislature, would have referred a constitutional amendment on legalizing cannabis to voters. It did not advance before crossover.
• Ohio — HB 210 would legalize personal possession of marijuana and cultivation of up to 12 plants.
• Pennsylvania — HB1180 would legalize and regulate cannabis for adults.
• Rhode Island — S0568 would legalize and regulate cannabis for adults; it was referred to the House Finance committee on June 24th.
• South Carolina — S 335 would legalize and regulate cannabis for adults; also, S 268 would create an advisory referendum on legalization in 2022. It did not advance before crossover, but the legislative session carries over to 2022.
• Tennessee — HB 413 and SB 1439 would have removed all penalties for possession of up to an ounce of cannabis. They would not have legalized sales or manufacture. The legislature adjourned without acting on the bills.
• Texas — HB 447, SB 140, and SB 269 would legalize and regulate cannabis for adults; SJR 16 and HJR 13, if approved by the legislature, would refer a constitutional amendment on legalizing cannabis to voters.
• Virginia — SB 1406, HB 2312, SB 1243, HB 1815, and HB 269 would legalize and regulate cannabis for adults; SB 1406 and HB 2312 passed both chambers in their final form on February 27. Gov. Northam requested amendments — including moving up legal possession and cultivation to July 1, 2021 instead of 2024 — and the legislature accepted them on April 7. The bill is now law.
• West Virginia — HB 2291 and HB 2912 would legalize and regulate cannabis for adults. They did not advance before a crossover deadline, but they carry over to 2022.
• Wisconsin —AB68 and SB111 are budget bills that include the governor’s legalization proposals.
• Wyoming — HB 209 would have legalized and regulated cannabis for adults. It advanced out of the House Judiciary Committee in a 6-3 vote but did not get a House floor vote before a deadline.

*Source:  MPP.org

MY LAWYER JOKE OF THE DAY …

God decided to take the devil to court and settle their differences once and for all. When Satan heard this, he laughed and said, “And where do you think you’re going to find a lawyer?”

See you next issue!

Jason Morgan Roberts is an Attorney and Legal Commentator in the Chicagoland Area

[email protected]