Advocates and stakeholders in the medical cannabis world of Alabama are desperate. And as it is so often when we are faced with a desperate situation, we make well-intentioned but ultimately flawed decisions.

Alabama Senate Bill 72 dropped last week. It would, among other things, (1) expand the total number of integrated licenses from five to seven; (2) shift the authority of issuing licenses from the AMCC to a consultant; and (3) shield the decision from any judicial review.

As a practical matter, this means that a single consultant would choose the seven integrated license winners and that decision would automatically become the decision of the AMCC as a matter of law. It further means that Alabama courts will not be permitted to entertain any challenges to the process or the consultant’s decision, no matter how flawed or egregiously wrong it may be. And it means that we’re another year away from any finality.

What Does This Mean?

Sigh. This means a few things, none of which are good.

First, let’s be clear: It’s difficult to view this than as yet another bite at the apple for disappointed applicants. And I’m afraid to say that at this point there may not be much more apple to eat. After all, this would be the fourth attempt to issue integrated facility licenses. Enough is enough.

Second, the proposal is illegal. A law cannot prohibit any judicial review. While it’s arguably appropriate to remove the licensing process from the Administrative Procedures Act, it is not permissible to entirely remove the legal process from the issuance of a government license. I actually applaud the notion of a law that minimizes litigation or the scope of reviewable issues. After all, expansive and long-running litigation is why we’re in this position. And while it would be permissible to narrow the scope of arguments made in litigation, it is simply not permissible to remove the judicial system entirely.

Third, the notion that the decision-making authority would be placed in the hands of a “consultant” shielded from any judicial review is contrary to the letter and spirit of the law on the books for the last four years. The AMCC is a body appointed by elected officials and should have accountability for the selection – and subsequent actions – of licensees. But if the AMCC is not responsible for choosing licensees, it doesn’t seem fair to look to them when seeking accountability. Accountability will rest with a faceless “consultant” who will certainly skip town as soon as the decision is announced.

I want to be clear about one particular aspect of this discussion. While I believe this is a flawed bill with certain particularly cynical provisions, I do not attribute blame to its sponsors – Sens. Tim Melson, David Sessions, and Greg Albritton. I have always believed they have the best of intentions and are amenable to reasonable amendments to get Alabama’s medical cannabis program off the ground. I’m afraid, however, that in this instance, most unfortunately, they have been poorly advised.

Likelihood of Senate Bill 72 Becoming Law

In my opinion, this bill has little chance of becoming law as drafted. I base that on my opinion that the Alabama Legislature has little interest in revisiting cannabis proposals at this time, my conversations with various stakeholders (including well-heeled applicants that employ influential governmental affairs specialists), and by the knowledge that it is easier to defeat legislation than it is to pass it. 

For what it’s worth, I do believe the Legislature would pass a bill if all of the relevant stakeholders agreed it was the right way forward. Unfortunately, and this is inherent in any limited license situation, we are operating in a zero-sum game where there will be winners and there will be losers and those who believe a proposal will end in their defeat will fight tooth and nail to stop it. 

Maybe I just can’t shake the litigator in me, but I continue to believe courts may provide the best and more efficient option at this stage. To paraphrase Harry Dunne, played effortlessly by the genius Jeff Daniels, just when I think this process couldn’t possibly get any dumber…

One thing I can promise is that we’ll stay on top of this legislative proposal – and any other notable cannabis legislation in Alabama – so that you don’t have to.