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story.lead_photo.caption FILE - This Sept. 15, 2015 file photo shows marijuana plants a few weeks away from harvest in a medical marijuana cultivation center in Albion, Ill. (AP Photo/Seth Perlman, File)

The Arkansas Supreme Court this week will hear oral arguments on the controversial rollout of the state's medical marijuana program, but the legal issues before the justices reach beyond the drug that Arkansans voted to legalize nearly two years ago.

In addition to deciding the fate of Arkansas' first medical cannabis growing licenses, the legal community is also bracing for a ruling that could offer more clarity on the questions of when and how the state can be sued as well as drawing boundaries for state licensing agencies.

Chiefly, though, the suit is the court's first look at Amendment 98 to the Arkansas Constitution, which voters approved in 2016 to legalize medical marijuana.

The implementation of the amendment has been slow, and this lawsuit, filed and joined by several companies that were denied cultivation permits in March, brought the process to a halt.

The state Supreme Court agreed to expedite its review of the case, and attorneys expect the court to render a decision by the end of the month when the court takes its summer break.

Its ruling, attorneys agree, could go a variety of directions -- either slowing down or speeding up the introduction of the drug into the marketplace.

"It's hard to predict, and there's a lot of different arguments being lodged by both sides," said Alex Gray, an attorney for the Arkansas Medical Marijuana Association. "But the court's decision on this case is going to have a significant impact on the timeline of when patients are able to get their medicine."

The matter before the high court stems from the state's appeal of a March order by Pulaski County Circuit Judge Wendell Griffen siding with Naturalis Health -- one of the 90 unsuccessful applicants for a cannabis growing permit.

Griffen barred the state from formally awarding the first five cultivation licenses to the top-scoring applicants, which the state had announced just days earlier. The judge declared the ranking process "null and void," saying the Arkansas Medical Marijuana Commission's process for awarding medical cannabis permits was unconstitutional.

That process entailed accepting 95 lengthy cannabis growing facility applications, which Alcoholic Beverage Control Division staff members partially redacted to remove personal identifying information to prevent bias in the commissioners' evaluations.

However, unsuccessful companies have argued that the redactions didn't adequately strip information that could be used to identify the people behind each application, and at least two commissioners had conflicts of interest that may have affected how they scored the proposals.

Griffen agreed, ruling that the situation created the appearance of bias.

On appeal, state attorneys disagreed, arguing that the redaction process was adequate. They also claim that even if the redactions fell short, the "appearance of bias" standard doesn't apply to agency licensing decisions.

"Extending the 'appearance of bias' doctrine to this case would require extending it to essentially every nook and cranny of state government; it would be an unprecedented, unnecessary, and unsupported extension of the doctrine," the state wrote in its appeal.

Josh Silverstein, a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law, said state governments in Arkansas and around the U.S. are already too lax in dealing with bias.

"This is a real opportunity to be more robust in dealing with conflicts of interest," Silverstein said. "We're far too forgiving of conflicts of interest."

The commission also stopped scoring more than 220 dispensary applications after Griffen's ruling, and Gray said the Supreme Court's decision will provide commissioners direction on how to proceed with that process. All the medical marijuana to be sold in Arkansas will be grown and processed in state.

The state's arguments on appeal also raise the question of whether licensing agencies must independently verify the sworn assertions in applications. Griffen's ruling faulted the Alcoholic Beverage Control Division for not independently verifying that each proposed cannabis growing facility was located far enough away from schools, churches and day care centers.

Griffen also declined to grant state attorneys' motion to dismiss Naturalis' suit on grounds of sovereign immunity -- the principle that the state can't be sued, as stated in the Arkansas Constitution.

The legal community has been anxiously awaiting more rulings addressing sovereign immunity defenses by the state after the high court ruled in January that the General Assembly can't pass laws that waive sovereign immunity.

State attorneys concede that they can't invoke sovereign immunity in cases in which a state official or agency is acting illegally or unconstitutionally, but they contend it does apply in this case.

Concluding its appeal, the state argued that Griffen held its preliminary injunction hearing without proper notice and issued an overbroad injunction.

"The circuit court's overbroad injunction must be reversed and this case dismissed with prejudice," the appeal reads.

By holding oral arguments on Thursday, Silverstein said the court can focus on areas of disagreement among the case parties, which often argue past each other in written briefs.

The number of oral argument requests granted by the state Supreme Court this year has dipped, an Arkansas Democrat-Gazette analysis of court data earlier this year found. However, none of the justices have said why.

"You can really pin down precisely where the disagreements are and what the arguments are on both sides," Silverstein said. "There's some real advantage in engaging in a face-to-face exchange."

Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette.

SundayMonday on 06/04/2018

Print Headline: Justices to hear dispute over pot


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Archived Comments

  • JMort69
    June 4, 2018 at 7:48 a.m.

    Here, once again, we see the dirty hands of the Ballinger/Story unholy alliance. Why did Speaker Gillam appoint Story to this commission to begin with? Was is because Story was defending Ecclesia College and, now convicted felon Woods was trying to divert some of the revenue to Ecclesia? Was Story trying to aid and abet the same bunch of crooks getting in on the ground floor of medical marijuana? It sure looks like it. Ballinger stated he saw nothing wrong with their firm representing their clients, the Truloves, in other matters, just not MM. I've worked with many attorneys in my career. The first thing a good one does is check for conflicts, and, if there are any, they don't take the case. I guess the difference is they are successful, good attorneys. Ballinger couldn't make it as an attorney, so he ran for office. I think most of the attorneys in our state house are the ones who failed in their chosen profession. So, they are desperate for income. That's a bad scenario for we the people. Now, thanks to Story, those of us who need this are now waiting. Lawsuits were expected in this process, but I don't think anyone expected the subterfuge perpetrated on us by Story who, apparently, doesn't feel that the rule of law applies to him. After all, God is with he and Ballinger. Not my God, they are a rotten, phony stench in the nostrils of my God. Until we rid our legislature of all of the underhanded dealers, the people of Arkansas will continue to pay for their misdeeds. How much more can we afford?

  • JPRoland
    June 4, 2018 at 8:33 a.m.

    I used to say, "please hurry" because it helped quell my son's severe seizures. He had at least five a day and as many as 40 a day for 17 years. Well, unfortunately, I lost my only son in January to a during a bad seizure episode. I have Parkinson's and my doctor would like to see me get some relief from marijuana, but I don't mind limping and shaking for a few more years until you fat cats figure it out. I'm not in a life-threatening situation like my boy, but there are those who are. Please move more quickly!!!

  • GeneralMac
    June 4, 2018 at 8:52 a.m.

    I see the headline used the word "pot"
    This article mentioned " medical marijuana"

    It seems whenever the doctors or lawyers who have invested in the growing and distribution ( and hope to get rich $$$$$$$$$$$$$$) prefer the term " cannabis".

    I have listened to a radio ad by a doctor and never once was "pot" or " marijuana " even mentioned.

    "Cannabis" is the term they use to distance themselves from pot smokers .
    I guess when there is a ton of LEGAL money to be made, doctors and lawyers who invest like to "sanitize" the terminology..

  • dunk7474
    June 4, 2018 at 9:17 a.m.

    It's taken over two years and Asa and Leslie have not given the people what they voted for. Both of these screwballs should be gone and voted out. I;m sick of these idiots trying to decide what WE want.

  • LRCrookAtty
    June 4, 2018 at 9:28 a.m.

    This was a decision made by the people of Arkansas in an Amendment from the people. Leslie is facing scrutiny now for denying, most if not all, Amendments proposed by the citizenry. However, if the Amendment comes from our illustrious General Assembly, then it is not scrutinized. For example, Issue 1 this November is touted to the citizenry as getting control of attorneys in Arkansas and not allowing them to fleece plaintiffs for money. However, the truth behind Issue 1 is to allow this so-called "illustrious" General Assembly of ours to make the rules (including rules of evidence) for our courts. This is insane, and the rules can change from one year to the next. The General Assembly in no way has the ability to determine what evidence should or should not be allowed in our Courts. In November, vote NO on Issue 1. Also, the cap on recovery is just another protection of companies, Walmart, from being penalized (punitive damages) for egregious violations. For Walmart to have to pay $250,000 to someone (because they are being punished) is a joke. If people believe that the Plaintiff should not receive a so-called windfall, then give the money to Legal aid r some other non-profit. Then a punishment (punitive damages) will actually punish the offender.

  • LRCrookAtty
    June 4, 2018 at 9:36 a.m.

    Just for clarification on Issue 1 and my soap box argument, I am not a personal injury attorney, nor do I plan on being one. However, I do practice criminal law and I definitely don't want some guy that has no experience in legal matters deciding rules of criminal procedure or rules of evidence for our courts. It is hard enough to navigate those waters when our Supreme Court sets them out.

  • Illinoisroy
    June 4, 2018 at 12:24 p.m.

    My condolences JP

  • condoleezza
    June 4, 2018 at 12:42 p.m.

    From USA today: "The verdict criticized the state's treatment of Jack Phillips' religious objections to gay marriage, ruling that a civil rights commission was biased against him. As a result, the decision did not resolve whether other opponents of same-sex marriage, such as florists and photographers, can refuse commercial wedding services to gay couples."

  • GOHOGS19
    June 4, 2018 at 12:59 p.m.

    Imagine an attorney being against Issue 1. Every profession in the state has to have rules approved by the legislative rules committee except attorneys. I see no reason for that to continue.

  • LRCrookAtty
    June 4, 2018 at 1:30 p.m.

    Gohogs...The rules are not for attorneys, they are procedures for the courtroom. I would not want the legislature to rule on procedures for a doctor to follow in the operating room nor do I want the legislature to set the rules for the court room. Your argument is moot as not all professionals have rules set by the legislature...the nursing board makes their rules, the medical board makes their rules and so on and so forth. That is because the layman does not understand the intricacies of the court room, operating room etc...