Federal Judge Grants Public Access To Lawsuit Hearing Between Marijuana Companies And Justice Department This Week

A federal judge has granted marijuana companies’ request to allow public access to a hearing this week in a key case where they’re seeking to shield in-state cannabis activity from federal enforcement.

Three days after the cannabis firms made the request—without opposition from the Justice Department—the U.S. District Court for the District of Massachusetts’s Western Division has now agreed to make Wednesday morning’s hearing accessible via phone and/or online streaming. Details on how interested parties can tune in are not yet available.

Attorneys for the plaintiffs had argued that the “dispute involves questions of public concern,” noting that they’ve “received a number of requests from members of the press who are seeking means to observe the hearing remotely because they are unable to attend the hearing.”

The suit against the federal government—Canna Provisions v. Garland—is being led by multi-state operator Verano Holdings Corp. and the Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, along with Treevit CEO Gyasi Sellers. Plaintiffs are represented by the law firms Boies Schiller and Flexner LLP and Lesser, Newman, Aleo and Nasser LLP.

Litigator David Boies—whose list of prior clients includes the Justice Department, former Vice President Al Gore and plaintiffs in the case that led to the invalidation of California’s ban on same-sex marriage—is leading the suit.

While the overarching case centers around the plaintiffs’ arguments about the government’s authority to enforce prohibition for intrastate cannabis activity, Wednesday’s hearing will more narrowly focus on DOJ’s motion to dismiss the lawsuit.

Judge Mark G. Mastroianni, an Obama appointee, didn’t weigh in on the merits of the plaintiffs’ request for public access to the hearing but simply granted it in an electronic order on Monday.

The cannabis businesses have said in their lawsuit against the federal government that the prohibition of marijuana has “no rational basis,” pointing to officials’ largely hands-off approach to the recent groundswell of state-level legalization.

At issue in the case is the degree to which in-state cannabis activity affects interstate commerce, with the government arguing that cannabis legalization attracts out-of-state tourists.

DOJ argued in a filing last month that “it is rational to conclude that the regulated marijuana industry in Massachusetts fuels a different kind of marijuana-related interstate commerce: marijuana tourism.”

“As the Supreme Court held decades ago, Congress has the authority to regulate businesses that cater to tourists from out of state, even if the businesses’ transactions occur wholly in-state,” DOJ said in the brief.

Plaintiffs, meanwhile, contend the Constitution’s Commerce Clause should preclude DOJ from interfering in state-legal activity because it is regulated within a state’s borders.

The filing of the latest motion comes just shortly after the President Joe Biden announced that his administration is formally moving to reschedule marijuana, with a proposal set to be published in the Federal Register this Tuesday to place cannabis in Schedule III of the Controlled Substances Act (CSA).

Attorney General Merrick Garland, a chief defendant in the marijuana industry litigation, signed off on the proposed rule last Thursday. But reclassifying cannabis as Schedule III would not federally legalize it, so it seems unlikely that rulemaking will influence DOJ’s position in the federal court case at hand.

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Photo elements courtesy of rawpixel and Philip Steffan.