State lawyers have asked a federal court to dismiss a constitutional challenge to Rhode Island’s 2022 retail cannabis law, arguing the plaintiff’s lawsuit is irrelevant and premature.
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Justyna Jensen, of California, filed suit in May claiming Rhode Island’s law violated a federal interstate commerce provision because of restrictions it places on non-resident participation.
But in court papers filed Monday, lawyers for the attorney general argue Jensen can’t claim injury because the Cannabis Control Commission has yet to finalize retail regulations, no new retail licenses have been awarded (thus no applicants rejected) and Jensen doesn’t have an ownership interest in any cannabis business.
“The statement that plaintiff ‘intends’ to apply with an unformed business entity with no identified partners who otherwise qualify for a retail license falls short of showing an imminent injury,” the lawyers wrote. “Besides the fact that retail licensing is not even available to apply for yet (and will not be for an undetermined amount of time), any harm to plaintiff is speculative at best.”
Further, the state argues Jensen’s claim the law violates the so called dormant Commerce Clause is inapplicable because recreational use of cannabis remains federally illegal.
“Plaintiff outright ignores the fact that a majority of courts have very recently rejected the argument that state adult use retail cannabis laws implicate or violate the DCC.”
“These courts have nearly universally reasoned that the dormant Commerce Clause does not apply to the recreational marijuana market because Congress has specifically made that market illegal at the federal level.”
Couple has filed lawsuits all over the country challenging social equity laws
Jensen and her lawyer husband, Jeffrey, have filed similar lawsuits in several other states, taking particular aim at social equity provisions that reserve retail licenses for minorities and communities disproportionally hurt in the nation’s war on drugs.
Rhode Island’s recreational cannabis law passed with the expectation a new Cannabis Control Commission would issue at least 24 licenses for retail cannabis stores, with 6 of those licenses reserved for social equity applicants and another 6 reserved for stores owned by worker cooperatives.
The law states that a Rhode Island resident or corporation must own at least 51% of that business. But, as the state lawyers note, it doesn’t prevent non-residents from owning some portion of the business.
“Simply stated, a nonresident can still have an ownership interest in a Rhode Island retail cannabis license,” the state lawyers wrote. “Plaintiff can become the owner of a cannabis retail establishment within the State of Rhode Island, she simply chooses not to partner with an individual or entity in the State of Rhode Island.”
Jensen also argues that Rhode Island’s law infringes on the Equal Protection Clause of the Fourteenth Amendment that says states shall not “deny to any person within its jurisdiction the equal protection of the laws.”
But the state lawyers say the clause mandates only that “similarly situated persons be treated alike.”
In Jensen’s case the “plaintiff is not a member of any protected class.” She does not live in a disproportionately impacted area..
“In fact, plaintiff cannot possibly be considered to be similarly situated to other potential social equity applicants because she does not meet the statutory requirements to qualify as a social equity applicant to begin with.”
Jensen’s suit is one of two challenges to the state’s cannabis law.
Earlier this month, John Kenney, a Florida resident, filed a similar lawsuit in U.S. District Court also alleging the residency requirements unconstitutionally impede interstate trade.
The work of the Cannabis Control Commission continues despite the lawsuits, a spokesman said.
"In the past year, the Cannabis Control Commission has made steady headway working to expand the adult-use market in Rhode Island and will continue to monitor litigation and any impact it may have on its efforts," said spokesman Matthew Touchette.
Contact Tom Mooney at: tmooney@providencejournal.com
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