Is marijuana ‘essential’? Recreational firms tussle with Baker in court

Ruling expected Wednesday or Thursday could reopen — or doom — pot shops

Attorneys for a group of recreational marijuana companies challenging Gov. Charlie's Baker order for them to close down amid the coronavirus pandemic faced off against the state in a virtual court hearing Tuesday.Screenshot (custom credit)/Screenshot

Lawyers representing a consortium of cannabis companies and Governor Charlie Baker clashed in court Tuesday over Baker’s decision to close recreational marijuana shops amid the coronavirus pandemic.

The companies, joined by a military veteran who said he relies on recreational marijuana shops to obtain the drug for medical purposes, sued Baker last week, saying his order to shutter the stores and their suppliers was an unfair overreach. The governor has staunchly defended the move, arguing it was necessary to prevent out-of-state customers who could be carrying COVID-19 from crowding pot retailers.

Suffolk Superior Court Judge Kenneth Salinger, who oversaw the emergency video hearing, said he would issue a decision Wednesday or Thursday on the request by the companies to immediately freeze Baker’s order and allow them to resume operations.

An order in favor of the plaintiffs could reopen recreational marijuana stores — albeit with strict social-distancing policies like those now in place at medical cannabis dispensaries — within a matter of days, while a ruling in favor of Baker would likely leave them closed for weeks or longer.

In virtual court Tuesday, attorney Michael Sullivan of law firm Prince Lobel Tye attacked the governor’s order from multiple angles. He said it threatens to financially destroy cannabis firms that are ineligible for federal relief funds, irrationally differentiates between marijuana and liquor stores, and forces consumers into the dangerous illicit market.

Baker, Sullivan added, is pushing past his powers under state law by keeping the ban on recreational sales in place weeks beyond the initial emergency order.

The state law granting the governor additional powers during an emergency is for “when you don’t have time to wait, when you don’t really have time to contemplate the actions that need to be taken in the traditional legislative context,” Sullivan argued.

“What [Baker] did during the first initial two-week order is different [from] what he might do rationally during a six-week or eight-week or 10-week time period thereafter,” he said. “It’s certainly not supposed to be a tool for [picking] winners or losers, or be a place to have policy fights, and [Baker] shouldn’t be able to differentiate between this industry or that industry for insubstantial reasons.”

To address Baker’s concern about out-of-state pot shoppers, Sullivan said, the state could easily and legally restrict recreational pot sales to Massachusetts residents.

“If you’ve got a substantial reasons to discriminate against non-residents, you can act on that,” Sullivan said. “We don’t pretend there’s not a pandemic out there; we don’t pretend this isn’t an emergency situation. ... But it would have been very easy for the governor, if that was his concern,” to ban non-residents.

“They’re checking IDs anyway,” Sullivan said, referring to cannabis stores. “It’s a simple solution.”

Assistant Attorney General Julie Green, representing Baker, countered that even a remote risk of litigation over a ban on sales to non-residents was too high, since a judge could overturn the policy and create a brief window before an appeal during which out-of-staters would flock to marijuana stores in large numbers.

Green also noted there are numerous reasons marijuana is different from alcohol, which remains available from restaurants and liquor stores. Alcoholics may suffer life-threatening seizures if they suddenly withdraw from the drug, she said.

“Rightly or wrongly, the two products play a very different role in our social and economic life,” Green told Salinger. “There are more than ample conceivable rational justifications for treating these two industries differently.”

And more broadly, she argued, there is no legal requirement for the governor to provide evidence backing his every decision under the emergency powers law, nor enumerate every conceivable reason a decision was rational.

“Certainly there are other policy choices that might have worked, or they might have worked almost as well,” Green conceded, “but at the end of the day the constitution doesn’t mandate that the governor choose the least restrictive [option].”

“In the situation of an emergency where every moment counts, the governor isn’t required to try out less restrictive means to figure out if they’re going to work,” she added. “The governor was entitled to take the decisive action that he did."