Recreational Marijuana Advocates Sue Gov. Baker Over Declaring Recreational Pot Shops ‘Non-Essential’

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A group of marijuana industry advocates has sued Gov. Charlie Baker over his decision to categorize recreational pot shops as “non-essential” during the coronavirus pandemic. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal analyst Daniel Medwed about the lawsuit. The transcript below has been edited for clarity.

Joe Mathieu: So who is suing Gov. Baker? What’s the main legal argument here?

Daniel Medwed: There are five recreational marijuana companies and a military veteran who uses marijuana to ease the pain sustained [from] injuries during the Iraq War. They’ve sued the governor for his decision to close all of the recreational pot shops in the commonwealth. That’s 43 different brick and mortar buildings. Their basic legal argument is this: For some people, recreational marijuana use is as essential as going to the grocery store or going to the pharmacy, that people use [and] rely on these products to manage pain and to ease anxiety, and they have legitimate reasons for not seeking a formal medical license.

First, that process can be costly to go to a clinic and get a referral. Second, medical marijuana dispensaries are few and far between across the commonwealth and inaccessible in certain locations. For instance, on Nantucket, there’s a recreational pot shop, but no medical marijuana alternative. And third, some people, especially military veterans, are fearful that if they obtained a formal medical marijuana license, that could jeopardize their receipt of federal benefits because, of course, marijuana remains illegal at the federal level.

Mathieu: What are the plaintiffs seeking in terms of a remedy then?

Medwed: Well, they’re asking for what’s called declaratory and injunctive relief. Those are fancy legal terms [for] basically a declaration from the court that these businesses are essential and an order preventing Gov. Baker from keeping these businesses shuttered.

Mathieu: [Governor Baker’s] been holding a lot of briefings. He’s been asked about this a few times, Daniel, and basically said the rationale is keeping people from out of state from coming into Massachusetts to buy pot. Is there more to it than that or is that the argument?

Medwed: Well, that’s the main concern, at least the one he’s articulated, that if these shops are open, it will entice people to come to Massachusetts. That will lead to long lines, overcrowding [and] conditions that could allow COVID-19 to flourish, contrary to the advice of public health experts. And those concerns don’t really exist when it comes to liquor stores — which remain open because those are legal across the country — and also for medical marijuana shops because, as I mentioned a moment ago, there aren’t many of them in the commonwealth and also by law, they are confined just to Massachusetts residents. So I think his rationale comes across as quite sound, but I have a slightly different public health concern, which is is, Is this the right moment to wean people off of marijuana if they’ve been using it to manage pain or to manage anxiety at the most anxiety producing moment, perhaps, in our lifetimes? That’s a concern that we should all have, too.

Mathieu: Well, what do you think about the viability of the suit then? Do the plaintiffs have a chance to win this thing? Do they get what they’re asking for?

Medwed: Here are a few thoughts. So on the one hand, I do find the plaintiffs’ arguments quite compelling. But I think there’s an artful solution — a compromise here. You could open up the recreational marijuana industry, but limit access just to Massachusetts residents. That would alleviate, to some extent, the overcrowding concern. But on the other hand, I think the courts may be very wary [and] very reluctant to intervene here because of what a lot of lawyers like to call the slippery slope concern. If the courts were to second guess Gov. Baker’s categorization of businesses as essential or non-essential here, that could embolden or motivate other industries to come forward and say, “Hey, our business is just as essential as recreational pot. We should get to open, too.” And that could create some unnecessary friction between the judicial branch and the executive branch at a time when we really want our governor, our executive officials, to be nimble [and] to act with alacrity to confront this still unfolding crisis.

Mathieu: It sounds like we maybe should not hold our breath for these stores to reopen.

Medwed: I think that’s right. If I had to guess, if I had my crystal ball, I’d say the courts are going to side with Baker.





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