A disqualified applicant for one of the coveted medical-marijuana cultivation licenses may continue along limited grounds its lawsuit challenging the state Medical Marijuana Commission’s review of its application, the Arkansas Supreme Court ruled Thursday.

The decision was handed down nearly two years after Carpenter Farms Medical Group of Grady first raised concerns over errors identified in the application of one of its successful competitors, despite similar errors cited as the commission’s reason for Carpenter Farms’ disqualification.

The disqualifying error was a discrepancy in ownership percentages assigned to different stakeholders in parts of Carpenter Farms’ application, though representatives for the group argued the discrepancy was merely a typo.

Carpenter Farms sued the commission in December 2018, seeking an order that would force the commissioners to reconsider its application. Among the claims made by the group’s attorneys were that the commission had violated its own rules as well as guidelines set by the Arkansas Administrative Procedures Act, in addition to violating the applicants’ constitutional rights to equal protection.

“We’re really grateful that the court understood the gravity of the case and that we’ll finally have our day in court,” said Matt Simmons, an attorney for Carpenter Farms.

In a series of opinions handed down Thursday — none joined by more than three of the court’s seven justices — the Supreme Court held that the commission was not protected from Carpenter Farms’ lawsuit by the doctrine of sovereign immunity, which upheld an earlier decision reached by a circuit judge.

Writing for the court’s majority, Justice Rhonda Wood also said that Carpenter Farms may continue to pursue its arguments that the commission failed to adopt model rules under the Administrative Procedures Act as well as its equal-protection claims.

Wood dismissed the applicant’s other claims under both the Administrative Procedures Act and the commission rules, and remanded the case back to Pulaski County Circuit Judge Wendell Griffen for further deliberations.

“Whether this allegation can be proved and the appropriate remedy are questions left for another day,” Wood wrote.

Wood’s opinion was joined in full by Chief Justice Dan Kemp.

A concurring opinion written by Justice Robin Wynne also found fault with the commission’s decision to deny Carpenter Farms’ application without notice or a hearing, and also would have allowed Griffin to hear further arguments on that matter. His concurrence was joined by Justices Courtney Hudson and Josephine “Jo” Hart.

Two other justices wrote their own partial concurring opinions.

Justice Shawn Womack wrote that he would have allowed Carpenter Farms to proceed with its equal-protection claims, while dismissing its claims under the Administrative Procedures Act. Meanwhile, Justice Karen Baker wrote that the entirety of the applicant’s suit should have been barred by sovereign immunity.

The court also addressed another issue raised by Attorney General Leslie Rutledge: whether to allow Griffen to continue hearing the case — and others involving Rutledge’s office — on remand to the circuit court in Pulaski County.

Rutledge asked the high court last fall to bar Griffen from hearing further cases involving her office after she accused Griffen of badgering one of her deputies during a hearing in the Carpenter Farms case. A transcript of the hearing showed that Griffen interrupted Senior Assistant Attorney General Jennifer Merritt 50 times during the two-hour hearing, which Griffen chalked up to his reputation for having a “hot bench.”

In December, the Supreme Court declined to move Rutledge’s cases from Griffen’s court, a decision that was repeated in Thursday’s ruling.

In a statement Thursday, Rutledge’s spokeswoman Amanda Priest said that the attorney general was “pleased” with respect to the court’s reversal of at least some of Griffen’s earlier ruling, which held in part that the commission had waived sovereign immunity under its own rules.

“However, the Attorney General is disappointed that the Supreme Court raised a jurisdictional basis for the lawsuit sua sponte that was not cited in Carpenter’s complaint and this justified the Supreme Court sending it back to the Circuit Court for further proceedings on the surviving claims,” the statement read.

Should Griffen order a reinstatement of Carpenter Farms’ application, it would join a list of 37 other un-selected applicants for one of the state’s three remaining cultivation licenses, said Scott Hardin, a spokesman for the commission.

The commission has not yet announced when it might award the remaining licenses.

There are five active cultivators in the state that have been licensed to grow medical marijuana, Hardin said.

Metro on 05/30/2020


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