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Law360 (April 16, 2020, 6:41 PM EDT) -- A Massachusetts state judge on Thursday denied several marijuana businesses' request to reopen the state's recreational marijuana shops after the governor ordered them to close during the coronavirus pandemic, saying the governor's decision was rational enough to stand.
Judge Kenneth W. Salinger denied the emergency motion for a preliminary injunction filed by the businesses and a military veteran, who claimed he treats his chronic pain and post-traumatic stress disorder with marijuana. The court said that while the businesses "made a convincing showing" that they could reopen without harming public health or safety, the shops would have little chance of success in proving their claims that Gov. Charlie Baker's order was arbitrary.
"The court may not bar enforcement of the governor's emergency orders against the plaintiff businesses on the ground that the governor could have achieved a similar public health benefit while allowing plaintiffs to stay open," Judge Salinger said. "Economic rules do not have to be perfectly tailored, even in non-emergency situations."
Baker declared a state of emergency on March 10 due to the COVID-19 outbreak, and on March 23, he ordered all nonessential businesses to close and not reopen until April 7. That order was later extended to May 4.
In other states, including California, Colorado, Illinois, Nevada and Washington, recreational marijuana has been deemed an essential business. Michigan and Oregon have also set up guidelines to keep the shops open.
The businesses filed suit against Baker last week, and they argued that it was arbitrary for him to allow sales of medical marijuana and alcohol while barring sales of nonmedical cannabis. They claimed the distinction violated constitutional equal protection guarantees.
The businesses argued that they could reopen with certain restrictions, such as limiting nonmedical marijuana sales to Massachusetts residents who have ordered in advance, authorizing stores to make curbside deliveries and keeping workers a safe physical distance apart. But the court said Baker was not legally required to ensure that his emergency closure orders had the smallest possible economic burden on the shops.
The court also said it was reasonable for the governor to be concerned that the adult-use shops are more likely than liquor stores or medical marijuana treatment centers to attract high volumes of customers, including out-of-state travelers. That rational basis makes the orders constitutional, the court said.
"The governor had to craft and issue these orders in rush in order to help protect the people of Massachusetts from a virulent pandemic," Judge Salinger said. "Since the choice made by the governor was constitutional, the court may not second-guess it."
The attorneys for the marijuana businesses said in a joint statement Thursday that it was unfortunate the court "felt constrained" to uphold the governor's orders, which they said has made life more challenging for medical cannabis patients who rely on the adult-use market.
"We were pleased, however, that the court rejected the governor's stated rationale for closing these establishments by stating he could 'lawfully' limit adult use cannabis sales to Massachusetts residents," the attorneys said in their statement. "As the plaintiffs in this case review their legal options, we hope the governor will follow the legal option before him to reopen adult-use cannabis stores with a temporary ban on sales to non-residents."
The governor's office said in a brief statement Thursday that it agrees with the ruling, adding that the list of essential services was "based on federal guidance and tailored to Massachusetts' unique economy."
Jim Borghesani, a cannabis industry consultant seeking the resumption of recreational sales, said in a statement that while he wishes the decision went the other way, he is pleased the court included in the ruling the assumption that Baker can lawfully restrict recreational cannabis sales to Massachusetts residents during the crisis.
"We're also thankful for the judge's mention of safety measures retail facilities can take to protect public health and safety," Borghesani said in his statement. "We repeat our call for Gov. Baker to allow retail cannabis sales, just as he allows retail liquor sales."
The marijuana businesses are represented by Adam Fine and Brandon Kurtzman of Vicente Sederberg LLP and Michael P. Ross and Michael T. Sullivan of Prince Lobel Tye LLP.
The governor is represented by Jennifer Greaney, Julie Green and Nathan Pak with the Massachusetts Attorney General's Office.
The case is CommCan Inc. et al. v. Charlie Baker, case number 2084CV00808-BLS2, in the Suffolk County Superior Court.
--Additional reporting by Chris Villani. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
