By Chris Villani

Law360 (April 14, 2020, 6:51 PM EDT) -- Massachusetts Gov. Charlie Baker is unfairly discriminating against recreational marijuana dispensaries by ordering them closed during the COVID-19 pandemic, an industry attorney argued Tuesday, comparing the shops to same-sex couples in the state who successfully sued for their right to marry in 2003.

During a hearing in the state Superior Court case, which challenges Baker's decision to classify adult-use marijuana shops as "non-essential" businesses while keeping both medical marijuana and liquor stores open, industry attorney Michael Sullivan of Prince Lobel Tye LLP cited the landmark 2003 state Supreme Judicial Court decision in Goodridge v. Dept. of Public Health .

In that case, he said, opponents of same-sex marriage compared it unfavorably to marriage between a man and a woman, in the same way that cannabis — which is illegal at the federal level — is compared unfavorably to alcohol.

"In Goodridge, there was discussion about the elevated nature of the interests and the liberties in question in that case," Sullivan said. "When it comes to the history behind recreational or adult-use marijuana or the marijuana industry in general, the court has to take a closer look at what is being done and not allow someone to marginalize and minimize that industry and lump it into a category with much less significant industries to the people of this state."

The emergency action, one of the few cases proceeding in an otherwise closed courthouse, was filed last week by several recreational dispensaries and one medical marijuana patient. They claim the shutdown is harming businesses and public health. 

Baker has argued that, because Massachusetts' 43 adult-use cannabis shops are the only ones operating in the region, allowing them to remain open could lead to an influx of people crossing the border, contrary to stay-at-home and social distancing guidelines.

Sullivan said Tuesday that justification is "flimsy," arguing stores can put in place restrictions to address those concerns. Those could include curbside pickup, appointment-only sales, implementing social distancing and only selling to Massachusetts residents, he said.

While Baker has questioned the legality of limiting sales to Massachusetts residents, Sullivan said such a restriction would be legal and represents a "simple solution" to the governor's concerns.

"We don't present there is not a pandemic out there, we don't present there is not an emergency situation in society," Sullivan said. "But it's precisely because of that why it would have been easy for the governor, if that's his concern, to say 'non-residents cannot enter the state to buy adult-use marijuana.'"

Assistant Attorney General Julie Green, arguing on behalf of Baker, defended the governor's decision and said he is well within his power to take extraordinary action during an emergency like the current pandemic.

"The constitution does not mandate the least restrictive means," Green said. "The governor isn't required to try out less restrictive means to see if they work. The governor is entitled to take the action he did."

Green argued that Baker has been put in a difficult situation, seeking to limit social transmission of the virus while also keeping alive the businesses and industries essential to fight the pandemic.

The governor's starting point, she said, was the federal list of essential services, which is why liquor stores were included.

Associate Justice Kenneth Salinger, who said he will issue a ruling in the next "day or two," pointed out that Baker chose to add medicinal marijuana to the list of health care services that could stay open in the state, in contrast with the federal government, which lists marijuana as an illegal substance.

"He could have similarly chosen to consider adult-use marijuana to be a part of the food and agriculture sector," Justice Salinger said.

"The finished product is far from the original agricultural product," Green replied.

"I'm not fully understanding why the governor thinks that point is so compelling," Justice Salinger said, prompting Green to move on to another argument.

The parties appeared via video that was livestreamed and archived on YouTube, complete with a running chat of internet commenters-turned-attorneys offering their own arguments on the proceedings.

The recreational marijuana industry has said the governor's action leaves it facing potential ruin and also taxes medical cannabis patients who may have let their cards lapse since the product became legal for adults to buy.

One of the plaintiffs, a military veteran, would need to travel over an hour to the nearest medicinal shop without a recreational alternative, which could turn him to the black market instead, his attorneys have said.

The plaintiffs are represented by Michael T. Sullivan and Michael P. Ross of Prince Lobel Tye LLP and Adam D. Fine and Brandon R. Kurtzman of Vicente Sederberg LLP.

Baker is represented by Julie Green of the state Attorney General's Office.

The case is CommCan Inc. et al. v. Baker, case number 2084CV00808, in the Business Litigation Session of Suffolk Superior Court.

--Editing by Bruce Goldman.

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