On August 17, the First Circuit Court of Appeals affirmed the the holding of the US District Court for the District of Maine that the residency requirements of Maine’s Medical Use Marijuana Act violate the Dormant Commerce Clause (“DCC”). The First Circuit has added itself to the list of jurisdictions that have invalidated similar state cannabis laws on DCC grounds, including in the Sixth and Eighth circuits.
Northeast Patients Group (“Northeast”) and High Street Capital Partners (“High Street”) sued the Maine Department of Administrative and Financial Services in 2020. The complaint challenged Maine’s requirement that all owners of medical marijuana dispensaries must be residents of the state. The First Circuit’s decision effectively eliminates all residency requirements for becoming a cannabis licensee in the state.
The history here was interesting. In 2020, the state issued policy guidance stating it would not enforce the residency requirement for cannabis licensees in the recreational marketplace. There, the state was advised by the Attorney General that the residency requirements for adult use cannabis licenses would not withstand DCC scrutiny. Northeast put that theory to the test.
Northeast owns and operates 3 medical marijuana dispensaries in Maine and is wholly owned by three Maine residents. High Street is a Delaware corporation that is owned entirely by non-Maine residents. High Street wanted to purchase all of the equity in Northeast, but because High Street had non-resident owners the Maine Act prohibited High Street from becoming the owner of Northeast’s dispensary operation.
Admirably, to complete their transaction without creating a convoluted business structure of dubious regulatory legitimacy (which we see a good deal of) the plaintiffs filed a lawsuit challenging the Maine Act’s residency requirements under the DCC.
The Dormant Commerce Clause
Without getting in the weeds here, in general the DCC prohibits states from enacting laws that place substantial burdens (discriminate) on interstate commerce. This means that when a state enacts a law that regulates interstate economic activity by favoring its own residents, as with Maine’s residency requirement, it must be “narrowly tailored”.
Broadly speaking, this means the state must be able to justifiable the discriminatory law. That’s the rub: Maine’s (and many other states’) requirement that medical marijuana licensees be state residents is clearly discriminatory against non-residents. In this case, Maine did not dispute that the law was not narrowly tailored and as a result the First Circuit found it unconstitutional.
The DCC and state cannabis regulations
The DCC has been used to invalidate many state laws similar to Maine’s residency requirement for cannabis licensees. In 2019, the Supreme Court invalidated Tennessee’s 2-year residency requirement for owning a retail liquor store. However, in the cannabis context there are several unresolved questions among certain of the federal circuits– including whether the DCC is applicable to cannabis in the first place due to the plant’s federal illegality.
The First Circuit held that the DCC is not preempted by the fact that the Controlled Substances Act (“CSA”) makes marijuana production, possession, and sale unlawful. Further, it stated that the CSA and DCC are “distinct rather than coterminous means” of federal law to regulate state law. Also notable is the majority’s disagreement with the dissenting judge on an important point. The dissenting judge stated that federal prohibition of cannabis prevents a federal court from using its power to facilitate illegal conduct. The idea here is that the court cannot rule in a way that allows for the plaintiff to participate in the cannabis industry because it is federally illegal.
That argument was used by a federal court in Oklahoma in 2021 to throw out a case making a DCC challenge to the state’s residency requirement for cannabis licensees. There, the court dismissed the case without considering the merits of the DCC claim by invoking the “clean hands doctrine”. The court stated that it would not use its power to facilitate (federally) illegal conduct.
While that federal court’s invocation of clean hands may be the minority view on this issue, many states still have residency requirements for cannabis licensees. Challenging them in court is not as simple as having a court rule on whether they violate the DCC.
Here in Washington, for example, the residency requirements for owning a cannabis license remain on the books and last month, a WA superior court judge granted summary judgment in favor of the state in a DCC lawsuit challenging their constitutionality. The court held that the plaintiff, an Idaho man, lacked standing to bring suit challenging WA residency requirements, and, like in the Oklahoma case, did not consider the merits of the DCC claim. It remains to be seen whether the case will continue to an appeal.
This decision may lead to more challenges of similar state cannabis regulations within the First Circuit as well as in other jurisdictions. For purposes of residency requirements of licensees, that would probably be a good thing.
We should say, that not all protectionist state regulations are necessarily bad. Sweeping DCC application to some state cannabis regulations may not be a good thing. Some protectionist cannabis regulations are aimed at addressing real concerns. For example, the consolidation and domination of the market by a few large companies should be guarded against. Some states either have taken, or are taking action to cap the number of licenses that can be issued. Others are limiting vertical integration of producer to retailer licensees.
Love them or hate them, these regulations do have some effect on addressing the market consolidation concerns. Residency requirements on the other hand just serve to stifle development and maturity in an industry that needs both and they do not tend to achieve their stated purposes, which is really a lose-lose situation. So, at least with respect to residency requirements for cannabis licensees, we see the First Circuit’s decision as a positive step in the right direction and setting a good precedent for other cases.
We have been writing here at the Canna Law Blog about the DCC and state cannabis licensing regimes since at least 2015– well before the doctrine was used to challenge state licensing laws. We are happy to see this theory being tested, and getting results to boot.
For a more in-depth discussion of the DCC in the cannabis context, check out the following posts: