Cannabusiness Advisory

Massachusetts Governor Charles Baker, in a response to the suit that was brought against him last week in connection with his decision to designate recreational marijuana businesses as “non-essential,” filed an “Opposition to Plaintiffs’ Motion for Preliminary Injunction” on Monday, April 13, 2020. The filing seeks to rebut the plaintiffs’ claims by offering counterarguments to their pleading for relief from the Governor’s executive orders that effectively shut down the recreational cannabis industry in the Commonwealth. The main thrust of the Governor’s argument is that the plaintiffs have failed to show a likelihood of success on the merits of their claims and, therefore, should be denied the injunctive relief they so seek. Below are some of the key takeaways from the response.

1. Lack of Jurisdiction Claim. Governor Baker defends his issuance of the executive orders in question by taking the position that he, in his capacity as the Governor, is exempt from declaratory judgment. He highlights that the statute governing declaratory judgment expressly excludes such actions against the governor and his official acts. Building on this, he argues that, since the requisite jurisdiction does not exist, three of the plaintiffs’ claims must be dismissed and, as such, there is no likelihood of their success. The Governor further explains that the plaintiffs’ fourth claim, for injunctive relief, is merely a remedy and not a cause of action, further positing that, even if it were deemed to be a standalone cause of action, it would likewise be lacking in jurisdiction.
2. Constitutionality of Executive Orders. While conceding that recreational marijuana establishments have indeed been afforded disparate treatment as compared to liquor stores (which have been permitted to remain open), the response makes the claim that the different treatment is “more than amply justified by the compelling need to minimize social interaction to the greatest extent possible.” It is put forth that the unequal application of the executive order is not arbitrary and that recreational marijuana retail operations are not similarly situated to other “essential” businesses. This assertion is rooted in the notion, parroted by the Governor time and again, that recreational marijuana stores could conceivably attract patrons from states where cannabis is not yet fully legal, thereby increasing the potential for the novel coronavirus to spread. In a reply to the plaintiffs’ counterargument that less restrictive measures could have been taken to prevent out-of-state residents from making purchases at Massachusetts marijuana establishments (such as limiting sales to in-state residents and checking photo identification for confirmation), the Governor notes that the mere availability of alternatives does not make the executive orders, being a policy matter, unconstitutional.
3. Civil Defense Act. In describing the Governor as the “supreme executive magistrate” of the Commonwealth and, thereby, having “executive powers,” the response asserts that the challenge to the Governor’s authority to issue the executive orders is without merit, as the power to do so is permitted by the Civil Defense Act of 1950. An excerpt from case law, provided by the Governor’s defense, states that the Civil Defense Act “delegated to the Governor, as head of the executive branch, very extensive and highly flexible powers both in preparing for and meeting an emergency.” It is further explained, in citing the Civil Defense Act itself, that such emergency powers may be bestowed upon the Governor “upon the occurrence of any disaster or catastrophe” to “protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth.” The Governor may then, in turn, exercise such authority broadly, which incudes, as his defense claims, the measures specified in the executive orders.
4. Showing of Harm. The evidence provided by the plaintiffs in support of their claims is cited in the response as being insufficient in light of the relief they seek. Such a mechanical view of the evidence fails to give credence to the abnormal and critical nature of the claims of this case, which have imposed tight time constraints on the plaintiffs, limiting their ability to fully marshal evidence and precluding them from garnering a full suite of supporting documents and testimony. Further, while the plaintiffs were, in fact, able to provide a fair measure of evidence in support of their claims, the defense was not willing to afford any leeway, despite the limited timeframe, and refused to extrapolate the evidence provided as being exemplary of the larger picture across the Commonwealth. The defense even goes so far as to downplay and dismiss the testimony regarding the harm suffered by veterans as a result of the recreational marijuana closures, provided by plaintiff Stephen Mandile, himself a veteran of the armed forces.
5. Balancing of Public Interest. The Governor’s defense makes its final argument in the response by claiming that, even if the harms suffered by the marijuana business plaintiffs were in fact supported by sufficient evidence, it wouldn’t offset the danger currently posed to the public. In support of this vein of reasoning, the defense asserts that any harm endured by the corporate plaintiffs would necessarily be outweighed by the Commonwealth’s interest in mitigating the spread of COVID-19.

In putting forth such a seemingly procedural and normal course response to the plaintiffs’ claims, the Governor’s responses seems unwilling to consider the exceptional nature of the case at hand, instead treating it as run-of-the-mill, despite the seriousness of the situation and the unique components at play in this suit. Given the current state of emergency and the gravity of the claims, the court accelerated the timeline for this case and fast-tracked a hearing on the injunction, which was held via remote webcast yesterday, April 14, 2020, in front of Suffolk County Superior Court Justice Ken Salinger. A follow-up blog post will provide an assessment of that hearing and the arguments put forth by the parties’ respective counsels.