Minnesota AG Asks Judge To Dismiss Lawsuit Claiming People Who Grow Marijuana At Home Can Sell It Under State Constitution

“Plaintiffs do not have a constitutional right to sell a controlled substance without obtaining a license. This point alone is fatal to plaintiffs’ case.”

By Peter Callaghan, MinnPost

Minnesota’s attorney general has asked a judge to dismiss a lawsuit from four cannabis homegrowers who claim the state constitution allows growers to sell their own crops without a license.

“Plaintiffs fail to state a claim because cannabis is not a ‘product of the farm or garden,’ the Minnesota Constitution does not create a right to purchase farm products, and state law does not authorize criminal penalties for unlicensed sales,” the dismissal request states.

A hearing is set for July 22 on the motion to dismiss, but the case is likely to eventually reach the state Supreme Court.

The lawsuit filed in May cites a 120-year-old provision meant to protect small farmers that says, “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” The constitutional amendment emerged from a case involving a melon farmer who tried to sell his excess crop from a wagon in Minneapolis without a local permit.

When marijuana was illegal, Minnesota courts found that the provision didn’t apply. But the 2023 legalization, as well as the limited homegrow allowance in the new law, changed that, the plaintiffs argued.

Challenge expected

The case had been expected well before the recreational cannabis law passed. In a memo to Gov. Tim Walz (DFL) in February 2020, Minnesota Management and Budget wrote that a proposed licensing requirement “could be challenged under Article 134, section 7 of the Minnesota Constitution.” Courts, the MMB memo stated, have allowed “substantive regulation of production or sale” of farm products but not state licensure.

The constitutional article is frequently cited by legalization advocates and appears frequently on shirts, buttons and posters. At one of the legislative hearings in 2023 on House File 100, Grassroots-Legalize Cannabis Party founder Oliver Steinberg submitted testimony that stated: “We are obligated to point out that the law’s licensing system glaringly violates both the letter and spirit of Article XIII, Section 7 of the Minnesota constitution.”

The state’s response, however, claims that cannabis remains a controlled substance and shouldn’t be treated like other farm products.

“The legislature’s decision to permit individuals to cultivate limited amounts of cannabis for their own personal use without obtaining a license does not negate the fact cannabis remains a controlled substance,” the state’s brief argues. “Plaintiffs do not have a constitutional right to sell a controlled substance without obtaining a license. This point alone is fatal to plaintiffs’ case.”

The assistant attorneys general who filed the response also claim that the plaintiff’s fear of criminal prosecution for illegal sales is unfounded because unlicensed sales of small amounts of cannabis are subject to civil penalties under the recreational cannabis law. While the state Office of Cannabis Management (OCM) has authority to impose civil penalties, it does not have criminal jurisdiction, the state asserts.

According to the state, “… plaintiffs do not allege an imminent injury because state law does not criminalize homegrown cannabis sales without a license. Second, assuming plaintiffs adequately plead an injury based on civil grounds, any injury is speculative as OCM has not completed its rulemaking process. Third, plaintiffs lack standing.  Finally, plaintiffs assert their claim against the wrong defendants.”

“… plaintiffs do not face criminal prosecution nor do they know whether OCM will require licenses for the sale of homegrown cannabis. Plaintiffs have not suffered any direct injury from state cannabis regulations nor can they articulate any imminent injury they may suffer.”

To the assertion that the lawsuit names “the wrong defendants,” the state says that while the lawsuit was filed against OCM and the attorney general, it is county attorneys who file criminal charges.

“Plaintiffs do not face criminal prosecution nor do they know whether OCM will require licenses for the sale of homegrown cannabis,” the state response concludes. “Plaintiffs have not suffered any direct injury from state cannabis regulations nor can they articulate any imminent injury they may suffer.”

‘Excess crop’

The lawsuit was filed by Jeffrey O’Brien, a Minneapolis attorney, on behalf of the four plaintiffs. One is Patrick McClellan, who lives with a rare form of muscular dystrophy and has been an advocate for medical cannabis since before it was made legal. McClellan installed a homegrow operation in his home to provide the cannabis he uses to relieve symptoms.

“Plaintiff McClellan’s plants produce more product than he can reasonably consume for recreational or medicinal purposes,” the lawsuit states. “The costs of growing at home are significant. The costs include equipment for  proper cultivation as well as additional expenses in order to be statutorily compliant and  cultivate his medicine within his home.”

“Plaintiff McClellan cannot reasonably consume all cannabis that he has cultivated in his home for his medicinal purposes. As a patient who has endured the struggle of gaining access to affordable and safe medical marijuana, Plaintiff McClellan would like to offset the costs of growing cannabis by selling the excess crop to other similarly  situated individuals.”

O’Brien said Tuesday that he took part in a brief settlement conference with the assistant attorneys general but reached no agreement. He said he will file a formal reply to the state’s response before the July 22 hearing before Judge Edward Sheu.

As he did when the lawsuit was filed, O’Brien tried to limit the scope of the claims made by the four homegrowers. The named plaintiffs are complying with all current law governing homegrow and will comply with any new rules adopted by the Office of Cannabis Management before next year’s rollout of legal sales.

“The issue is, that’s not the same thing as requiring a license to grow the product,” he said. “We aren’t saying you can grow a field of it and do whatever you want with it. But within the narrow scope the state has allowed for the legal growing of this product at home, the constitutional provision applies.”

The state’s assertion that cannabis remains a controlled substance and therefore needs strict state oversight falls apart, O’Brien said, with the current law’s provision that adults can grow cannabis at home and give away up to two ounces to other adults.

“Once they opened the door to homegrow, they opened the door to this issue,” he said. “Why are you letting people grow a controlled substance at home and give it away?”

Limited licenses

While any adult can apply for a license to sell cannabis once OCM completes rulemaking sometime next year, the number of retail sales licenses will be limited and the requirements expensive. Even the smallest cultivator license, for what is called a microbusiness, will need to follow pages and pages of rules, as well as pay a $500 application fee and $2,000 annual license renewal fee.

Someone growing a few plants at home would be unlikely to pursue such a license simply to sell their excess flower. The law allows adults to have up to eight plants each with only four of them flowering at once. A homegrower can possess up to two pounds of flower at home but only have up to two ounces outside the home.

An amendment this year allows medical cannabis patients who are unable to grow their own plants to designate a caregiver, who is then registered with the medical cannabis office, to grow plants for them.

While there was no agreement to settle the lawsuit during the settlement conference, O’Brien said there was agreement on what will happen with the case after Sheu’s ruling.

“Whoever loses will end up filing an appeal,” he said. “And this is probably ending up at the Supreme Court at some point.

This story was first published by MinnPost.

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