The Arkansas Supreme Court heard oral arguments this morning of the state’s appeal of Circuit Judge Wendell Griffen’s ruling that the state Medical Marijuana Commission’s approval of five applications to grow medical marijuana was constitutionally flawed.
No decision was made but questioning indicated hostility to Griffen’s ruling. Chief Justice Dan Kemp cut off a lawyer who tried to bring up an issue that developed this week — a secret document that was submitted to the court by the attorney general’s office. It is outside the record, Kemp said and nothing further was said.
Griffen had noted potential conflicts of interest between applicants and members of the commission and listed other shortcomings in the process. The five successful applicants and the state want his ruling reversed. They are Natural State Medicinals, Bold Team, Delta Medical Cannabis Natural State Wellness and Osage Creek Cultivation.
One loser that brought the lawsuit, Naturalis Health, wants the scoring reopened. Another loser has also filed pleadings in the case, the latest under seal about a document the Supreme Court has so far kept secret. Generally speaking, successful applicants don’t want the document, introduced after pleadings in the case
At the end of arguments, Casey Castleberry, attorney for three winners, Natural State Wellness, Delta Cannabis and Bold Team, wanted to bring up the secret document, which his clients had already argued was outside the record. Kemp wouldn’t allow.
Earlier, Castleberry argued Griffin didn’t have jurisdiction. He said administrative decisions may not be
Castleberry agreed to
Solicitor General Lee Rudofsky, representing the attorney general, joined Castleberry’s argument, though he differed on a point. He said the winners had not actually received the official license, though the difference between what occurred and a formal license was small.
Rudofsky addressed the issue of bias by Commissioners Carlos Roman and Travis Story, both of whom gave high scores (unusually so in Roman’s case) to applicants with which they had a business association. He said the top five applicants would have been unchanged had Roman’s score been excluded. He didn’t say the same about Travis Story, a law partner of Rep. Bob Ballinger, whose firm has done work for one of the winners, Osage Creek.
Rudofsky also said he didn’t think the commission could adopt rules granting jurisdiction to a circuit court. He seemed to
Justice Courtney Goodson said it appeared there effectively had been an approval and denials, which should open the door to a circuit court appeal.
Jay Bequette argued for Naturalis Health, which brought the suit and finished 38th in the scoring. He said the process was “flawed and corrupt” and indicated it had found more flaws in subsequent investigations. He disputed the argument that licenses had been issued, except to the practical extent that it supported his argument that his client was entitled to appeal. He also said the circuit court had clear jurisdiction on account of the flawed and corrupt process in grading and scoring — the sort of abuse of discretion that does open administrative decisions to court scrutiny. Justice Wood didn’t buy it “What occurred that you have a right to appeal from?” she asked.
Wood wondered if he thought all administrative decisions should be appealable. No
In response to a question from Kemp about the redeveloping law on sovereign immunity, Bequette said it wasn’t an issue in this case. Whatever the law is on
Clear Creek Medical, another unsuccessful applicant, also argued that none of the successful applications were corporations, but LLCs, as the Constitution requires.
Castleberry closed by saying a decision upholding Griffen would “lead to chaos” in multiple appeals of agency decisions.
Prediction: The Supreme Court will reverse Griffen yet again. What then? It would seem possible that the plaintiffs in this suit could then take action suggested by several justices — ask for
I’m where I’ve always been. This process was handled shoddily by the commissioners, who had too many political question marks to start with, beginning but not ending with Travis Story. The applications should be rescored by an outside, independent accounting firm.