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Md. should take its time on medical marijuana changes

Our view: Amid litigation and controversy, the legislature should wait until January to reform the medical marijuana program

The quagmire that is Maryland's medical marijuana program keeps getting deeper and deeper. Litigation over the awards of licenses to grow the drug is undergoing more twists and turns, even as a Washington Post report raises yet more questions about how applicants were selected. And in the latest development, the push for a special session of the General Assembly to address another problem with the selection process — the medical marijuana commission's failure to consider racial diversity in its awards — has stalled out because of House Speaker Michael E. Busch's recovery from a liver transplant. Given the uncertainty of the situation, the delay is probably for the best.

Black state lawmakers implored political leaders to reconvene the General Assembly to reshape the state's medical marijuana industry. Legislative leaders said no.

Last week, the Court of Appeals ruled that companies given preliminary licenses to grow the drug have the right to intervene in a lawsuit challenging the awards. It was the right decision. The lawsuit, brought by an unsuccessful applicant, contends that the licensure process must be thrown out because of the commission's failure to consider racial diversity, as required by state law. The preliminary licensees stand to suffer tangible harm if the suit succeeds — they have invested millions in a good faith effort to meet the state's requirements for final licensure — and they have interests impacted by the litigation distinct from the state, which is being represented by the attorney general's office.

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Fair and correct though the high court's decision may be, it's not likely to make a resolution of the underlying issues any speedier. Rather, it opens the door for more parties to appeal whatever decision Baltimore Circuit Judge Barry Williams renders in the case.

That's not the only litigation currently underway to challenge the license awards — a separate suit centers on the commission's use of geographic diversity in its award of preliminary grower licenses. It involves the same issue with intervention by the preliminary licensees. And it's not at all inconceivable that more litigation could be on the way. The Washington Post reported on Sunday that some of those evaluating grower, processor and dispensary applications had business or personal ties (or both) to applicants. How long will it be before some other passed-over firm decides to sue?

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The legal uncertainty hanging over the program isn't the only reason a special legislative session to address racial diversity among growers and processors isn't feasible. We support the Legislative Black Caucus' efforts to ensure that minorities have an ownership stake in what is expected to be a multi-billion dollar industry, and the idea of granting some additional licenses to be awarded via a system that takes race into account is reasonable. But calling the General Assembly back to enact further reforms before the medical marijuana commission is expected to grant more licenses later this month is logistically impossible.

Senate President Thomas V. Mike Miller (left) and House Speaker Michael E. Busch promise swift action on medical marijuana program reforms in 2018.
Senate President Thomas V. Mike Miller (left) and House Speaker Michael E. Busch promise swift action on medical marijuana program reforms in 2018. (Capital Gazette / Baltimore Sun / AP)

The Hogan administration has commissioned a study to determine whether a disparity exists in minority representation in the medical marijuana industry — a necessary legal precursor to constructing a system of enhanced preferences for minority firms in the licensure process. It's not due until sometime this fall. And even if the legislature were willing to enact reforms contingent on the results of the study, it would need to muster a super-majority vote in support of the legislation in order to have it go into effect before next summer. Corralling 85 votes in the House and 29 in the Senate in a matter of a couple weeks on an issue as contentious as this one is no mean feat. Under the circumstances, the commitment Mr. Busch and Senate President Thomas V. Mike Miller made in a letter to Black Caucus Chairwoman Del. Cheryl Glenn to move forward with emergency legislation early in the 2018 General Assembly session seems the most logical way forward.

Meanwhile, Gov. Larry Hogan last month cleaned house at the licensing commission, replacing 10 of the 16 members. He doubled the minority representation on the panel from two to four, but equally importantly, he brought on fresh eyes untainted by the missteps of the past. It's a move that was long overdue. If Maryland does move forward with awarding new licenses, we can't allow the process can't be as tainted as it has been so far.

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