We understand the Legislative Black Caucus' concern that no African-American owned firms got preliminary licenses to grow medical marijuana in Maryland. The law creating the program called for the licensure commission to consider diversity in ownership, but the commission didn't do it. That's a problem, and all the major players in Annapolis — Gov. Larry Hogan, Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch — agree on that point. Both chambers of the legislature passed bills to address the issue by ordering the study needed to provide a legal basis for race-based preferences in licensing and to allow a handful of new licenses to be awarded under that system.
The reason that reform failed to be enacted in the General Assembly session that ended on Monday night wasn't a lack of concern. And although the House was in the midst of taking a vote on the Senate's version of the legislation when the clock struck midnight and the General Assembly was forced by law to adjourn, the lack of time wasn't really the problem either. The issue was a provision altogether unrelated to increasing the racial and ethnic diversity of the licensees that Mr. Miller insisted on and Mr. Busch wouldn't agree to.
So long as that remains the case, there is no point in calling a special session of the legislature, as the black caucus has demanded, and on the merits, there is no question that Mr. Miller is the one who should back down.
Mr. Miller has said he was trying to correct another flaw in the awarding of licenses, but his method for doing so would only make matters worse. Last summer, the commission's grower location committee initially voted to award preliminary licenses to the 15 firms ranked highest on an independent, blind evaluation of their applications. But shortly thereafter, it took another vote to bump two of the applicants out and give licenses instead to two others in the name of geographic diversity. The law called for the commission to consider geographic diversity, and its regulations stated that it "may" do so, but the advice the commission provided to applicants was, at best, ambiguous on the point.
Both jilted applicants sued, and, in Mr. Miller's estimation, they have a great case. We're loath to predict what a judge might make of it, but we certainly agree that something very odd happened, to the two companies' disadvantage. But rather than let matters play out in court, Mr. Miller wants to make the case go away by mandating in law that the two companies get medical marijuana licenses. That's a terrible idea. The legislature should neither intervene in an ongoing court case nor override an executive branch procurement process by awarding licenses on its own. It also fails to advance the real cause here, which is to increase the racial and ethnic diversity of license holders.
Making matters worse, the political connections between the parties involved deepen an existing stain on the integrity of the program. The reprimand of Del. Dan Morhaim, the long-time backer of medical marijuana in the legislature who continued to advocate before the licensure commission even after he agreed to become a medical director for one of the applicants if it received a license (and after he received an initial payment from the firm), was bad enough. But one of the applicants that benefited from the last-minute geographic diversity switch is represented by lobbyist Gerard E. Evans, who has long been close to Senator Miller, and counts among its politically connected investors both Mr. Evans' son-in-law and a distant cousin of the Senate president. Mr. Miller's legislation would not only have made the lawsuit and any associated deposition of witnesses go away, it would also have cemented the firm's position among the licensees.
There are two ways forward. Governor Hogan could order a disparity study to be conducted as quickly as possible. The current license holders only have provisional status until August, when they must demonstrate sufficient capitalization and other progress. If some firms drop out at that point, which appears likely, the state could award new licenses based on rubric developed as a result of the disparity study. Even if not, the commission is already authorized to issue new licenses as early as 2018 based on demand. Or Senator Miller could agree to pass the House's version of the medical marijuana legislation, the two chambers could come back in a special session and the whole thing could be wrapped up in a day. Either way, the goal of improving diversity in a new, state sanctioned (and lucrative) industry can be achieved without the legislature getting involved in things it shouldn't.