Following up on our previous posts (here and here) regarding lawsuits by non-residents challenging the residency requirement in Maine’s marijuana licensing law as violating the Dormant Commerce Clause, a recent lawsuit filed by residents of Maine is asking the District Court of Maine to declare that the requirement does not violate the Dormant Commerce Clause.
In the case, United Cannabis Patients and Caregivers of Maine et al. v. Maine Department of Administrative and Financial Services et al., Case No. 1:20-CV-00388-NT (D. Maine), the resident plaintiffs’ core argument is that Dormant Commerce Clause protection does not apply to non-Maine residents in marijuana licensing decisions because Congress has affirmatively exercised its Commerce Clause authority by prohibiting the sale of marijuana in interstate commerce. According to plaintiffs, this means that the residency requirement is constitutional and should be enforced by Maine officials.
In their complaint, the resident plaintiffs note that federal courts have reached opposite conclusions on this point. As contrasting examples, plaintiff cite a case out of the Colorado District Court (Sladek v. Town of Palmer Lake, Colo.)—which did not specifically address a residency requirement, but instead held that an ordinance prohibiting marijuana sales “cannot burden interstate commerce, incidentally or otherwise, because federal law prohibits the sale of marijuana”—and the District Court of Maine’s recent decision to grant a preliminary injunction against Maine’s residency requirement in NPG, LLC v. City of Portland as likely violating the Dormant Commerce Clause.
Given the court’s decision in NPG, LLC (and the same judge is presiding over this case), the United Cannabis plaintiffs face strong headwinds at this stage. And to make their efforts more difficult, the non-resident plaintiffs in NPG, LLC are seeking to intervene as defendants, with both the named defendants and the potentially-intervening defendants claiming that the case should be dismissed largely on various procedural grounds. For example, the defendants are asserting that plaintiffs’ claims are barred by res judicata because plaintiffs filed a similar suit is state court, which is currently working its way through the appeals process.
Regardless of the district court’s decision, it would not be surprising that United Cannabis will be appealed to the First Circuit Court of Appeals given the opposing views of the resident plaintiffs and non-resident plaintiffs and their previous litigation history. Thus, this case may ultimately lead to federal appellate precedent regarding residency requirements in the context of marijuana licenses.
Stay tuned to Dykema’s Cannabis Blog as we will continue to follow this case.