The Alabama Medical Cannabis Commission will likely rescind license awards once again next week, but plaintiffs suing the commission warned litigation will continue so long as the commission relies on third-party scoring.
Montgomery Circuit Judge James Anderson tended to agree with AMCC counsel that the commission has absolute discretion and can use scoring however it sees fit, as long as it doesn’t violate the statute governing the commission. Plaintiffs argue that reliance on scoring does just that.
AMCC Counsel Mark Wilkerson said flaws in the scoring system frankly don’t matter, ultimately.
“If there are problems with the scoring, it doesn’t matter,” Wilkerson said. “If the scoring’s wrong it doesn’t matter, if the scoring’s bad it doesn’t matter; because the Commission can take into account whatever weight they want to put onto the ‘scoring.’”
Wilkerson also said plaintiffs claims that the Commission relied purely on scoring does not mean that is the reality.
Attorneys representing a variety of disgruntled applicants said the idea that the Commission isn’t relying primarily on the scoring is laughable.
“Everybody in here lists themselves by a number,” said attorney Bill Espy. “You know what they’re all listing themselves by? Their score. Everybody in here knows the only thing that mattered was the score.”
His brother, Ben Espy, had just argued that leaving the scoring in place would make the other rule changes by the Commission a moot point, as the scoring would still unfairly disadvantage low-scored applicants.
“So I have to attack the scoring system during my presentation (to the commission),” Ben Espy said. “What they have done is set up a scenario where there’s a presumption that my client is not good. And now I have to rebut that presumption and they don’t even give me the tools to do that.”
Espy explained his position that, to attack the scoring, he would need the scores of other applicants to compare and contrast flaws in the scoring, but said the Commission would not provide that information.
“They seem to be operating under the perception that what I want is a fighting chance,” Ben Espy said. “I don’t care about a fighting chance; I’m entitled to an equal opportunity and that is not what I’m being given by the commission … because of the scores. The scores taint everything.”
Will Somerville, counsel for Alabama Always, said that there has been a lot of talk about getting product to patients as quickly as possible, and told Anderson that throwing out the scoring is the only path toward that.
“If we’re going to be tied up in litigation over the scores for God knows how long, that is what’s going to prevent people from getting this medication,” Somerville said.
There was also discussion of allowing some licenses to move forward starting at the October 26 meeting in the “non-controversial” categories of cultivator, transporter and lab licenses.
But some counsels for those plaintiff parties argued that would give those license winners an unfair market advantage as integrated facility licensees oversee the process from seed to sale.
The Commission argued the licenses are a privilege, and that the court should only be concerned with the fact it does not impact any party’s potential to be issued a license.
Anderson asked the parties to work out an amendment to the current temporary restraining order to reach that effect.
Creek Leaf, a cultivator applicant that the Commission elected not to award a license, has objected to amending the TRO to allow cultivator licenses to move forward, claiming it could harm the company although the filing admits there is no remedy currently for the company.