On Tuesday, the Alabama Medical Cannabis Commission (AMCC) appealed a trial court order permitting unsuccessful license applicants to depose commissioners on an expedited basis.

The unsuccessful applicants, now plaintiffs in civil lawsuits against the AMCC, secured an order permitting depositions of the commissioners based on their accusations that commissioners have broken the law by holding secret meetings outside of public view.

To date, no plaintiff has identified which commissioners were part of these alleged meetings. 

The AMCC is asking the Alabama Court of Civil Appeals to overturn that order, which was entered by Montgomery Circuit Judge James Anderson at the beginning of January.

The AMCC also joined a currently-pending appeal brought by Trulieve Alabama, Inc. — the first time the AMCC has taken the side of an applicant in the months-long litigation against it.

Trulieve Alabama’s appeal defends the AMCC’s process for awarding licenses, and it has asked the Court of Civil Appeals to reverse the trial court’s order preventing the AMCC from moving forward on implementing the State’s medical cannabis program. 

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The AMCC argued in its January 31 filing that the Alabama Legislature subjected it to the Alabama Administrative Procedure Act (AAPA), which requires plaintiffs to first exhaustion their  administrative remedies before filing a lawsuit in court.

The Commission claims that the exhaustion requirement  deprives the trial court of the ability to hear many of the plaintiffs’ claims, meaning the trial court should have  denied any discovery at this juncture.

Some plaintiffs have requested administrative hearings into why they were not awarded a license while other plaintiffs went straight to court without even requesting a hearing before the AMCC. The AMCC says it has been unable to even schedule those hearings because of Judge Anderson’s order halting the process. 

The AMCC’s position is that the Alabama Open Meetings Act (AOMA) — which the plaintiffs assert commissioners have violated — strikes a balance between the public’s interest in government transparency and commissioners’ interest in avoiding harassment under the guise of discovery.

This balance is struck, the AMCC argues, by the AOMA’s requirement of a preliminary evidentiary hearing where plaintiffs carry the burden of proof. According to the AMCC, that has not happened. 

The AMCC faces a host of lawsuits from failed applicants. Alabama Always failed to win one of the five integrated licenses and now accuses the AMCC of violating its enabling law, the Darren Wesley ‘Ato’ Hall Compassion Act “Compassion Act.” Alabama Always also contends that the AMCC violated its own rules and the AAPA. 

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The AMCC is also being sued by Southeast Cannabis Company; TheraTrue Alabama; Yellowhammer Medical Dispensaries, LLC; Jemmstone Alabama, LLC; 3 Notch Roots LLC; Pure by Sirmon Farms; Insa Alabama, LLC; and several other unsuccessful applicants.

Each of them have questioned the legality of the AMCC’s actions and similarly demand the opportunity to depose commissioners. 

On December 27, 2023, Alabama Always filed a motion for expedited discovery on AAPA and AOMA issues. On the same day, Insa filed an almost-identical motion seeking expedited discovery. Judge Anderson issued a Temporary Restraining Order (TRO) on issuing dispensary licenses on December 28, grinding the implementation of Alabama’s medical cannabis program to a halt. 

Anderson issued his TRO on integrated facilities, which are the entities that have the ability under the law to engage in every aspect of the industry from seed to sale. Since before licenses were even awarded, plaintiffs have asked the court to grant discovery into the commissioners’ communications and thought processes. The AMCC has opposed having its  commissioners deposed by plaintiffs’ attorneys.

The AMCC argues that plaintiffs are not entitled to discovery under the law because: 1) They have failed to meet the AOMA’s procedural and evidentiary requirements, and 2) failed to first exhaust all administrative remedies, depriving the trial court of jurisdiction to do anything. 

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On January 3, 2024, the trial court entered an order granting expedited discovery against the commissioners. The AMCC has argued that the order offers no parameters by which to guide the discovery (other than number limitations) and no limitations on the scope of the discovery. On January 30, 2024, the trial court entered an Order denying the Commission’s request for a protective order and request for reconsideration.

Now, the AMCC is asking the Court of Civil Appeals to issue a writ of mandamus directing the trial court to vacate both discovery Orders and enter an order denying Plaintiffs’ request for expedited discovery.

The AMCC claims that it was authorized by the Compassion Act to award the medical cannabis license awards in the manner it did on December 12, and that “the challengers have resorted to litigation because they ultimately want the Commission to award them a cannabis license.” 

The Legislature passed the Compassion Act to make “medical cannabis…grown in Alabama available to registered qualified patients…by licensing facilities that process, transport, test, or dispense medical cannabis.” Through the Compassion Act, the Legislature created the Commission and gave it—and it alone—the power to award and issue licenses.

The AMCC hopes that medical cannabis can be available for sale in Alabama as early as this summer — but the pending litigation renders that projection less likely by the day.

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