Justice Kenneth W. Salinger wrote in a decision issued Thursday that there was no reason to address whether the companies may suffer irreparable harm if the requested preliminary injunctive relief is not granted because the plaintiffs failed to show that they were likely to succeed on the merits of their claims.
“On the merits, however, the Court must deny this motion because there is little chance that Plaintiffs will succeed in proving their claims. Plaintiffs’ equal protection challenge must be evaluated under the so-called ‘rational basis’ test,” Salinger wrote in the decision.
“It was reasonable for the Governor to be concerned that the relatively few adult-use marijuana establishments in Massachusetts are more likely than liquor stores or MTCs to attract high volumes of customers, including people travelling from other States. The Governor’s decision to treat medical marijuana facilities and liquor stores differently than adult-use marijuana establishments has a rational basis and therefore is constitutional,” the decision continued.
The group of recreational marijuana companies and an advocate filed the lawsuit in Suffolk Superior Court last week following a March order by Baker halting all non-essential business in the state. Medical marijuana dispensaries were allowed to continue to operate through the pandemic, but the order forced 43 recreational marijuana shops to stop operations through at least May 4.
The lawsuit argued that many people use marijuana as medication even if they are not registered with the state’s medical program and was filed by CommCan, The Green Lady Dispensary, AscendMass, MassGrow, Bloom Brothers and Stephen Mandile, an Iraq veteran who uses recreational marijuana as medicine and is also an Uxbridge selectman.
“This includes military veterans and other persons who rely on marijuana for medical treatment but are reluctant to access the Commonwealth’s medical marijuana program because they fear this might deprive them of federal benefits; and, persons on Nantucket, where The Green Lady Dispensary is the only legal source of marijuana products,” the suit read.
Mandile said he was disappointed to learn of Salinger’s decision.
“It’s disappointing that people go without access right now and still have to deal with the barriers of entry into the medical program. I was really hopeful that this would open them back up,” he said.
Salinger’s decision notes the impacts forced on the plaintiffs by Baker’s ban, including that Mandile would need to travel more than an hour to obtain marijuana at a medical marijuana treatment center.
“The Green Lady faces a very real prospect of being forced go out of business completely. It has no income. It cannot sell any of its inventory to the medical supply chain because it cannot lawfully transport any marijuana products off Nantucket island. And, like all other marijuana establishments, it cannot participate in any Federal economic relief programs,” Salinger wrote.
But, Salinger wrote that for the court to constrain government action, the plaintiffs had to be able to prove they were likely to succeed on the merits of their claims, that they would suffer irreparable harm if injunctive relief is denied, that the requested order promotes the public interest or would not adversely affect the public and that when the possible harm to each side is considered in light of plaintiffs’ likely chance of success, the risk of irreparable harm to plaintiffs, if the injunction is denied, outweighs the potential harm to the Commonwealth if the injunction is granted.
The justice wrote that the plaintiffs failed to show they were likely to succeed.
“It’s beyond disappointing. I was hopeful that we would be able to move forward with guidance from the CCC [Cannabis Control Commission],” said Ellen Rosenfeld, a co-owner of CommCan. “The plan is to do what we’re doing, continuing with the medical program. We just started curbside pickup in Millis today. We’re continuing to do whatever we’re allowed to do. I was hopeful that we would be open sooner rather than later.”
Nicole Campbell, who owns The Green Lady Dispensary, said though disappointed, she was proud of her team.
“We stood up to defend an industry that has been historically marginalized,” she said in a statement. “Whether it be banking, taxation, or having access to emergency funds to survive COVID-19, cannabis businesses are not treated equally. Today we are a small group in Massachusetts, someday I hope to see adult recreational stores across the Northeast. Perhaps because of our small effort they will be better valued and treated with more respect.”