FM Talk 1065 Podcasts
Attorney John Mooresmith - Jeff Poor Show - Wednesday 7-31-24
[Music] We're looking back to the Jeff Forest Show that we're going to talk about those 6-5 They just stick it around on this Thursday, I mean, on this Wednesday morning, text line type remaining 2513430106. We will respond to your text, including you, James, the chronic. You could get a new title, chronic malcontent, but that's reserved for me, I guess, I don't know. But joining us now on the line, he has an op-ed up in 1819news. About just what a disaster the Alabama Medical Cannabis Commission has been, the implementation. There's a lot of issues there. We're like three, four years into this thing, and I don't think there's not been a single prescription filled. And it's just government functioning as government does sometimes. Like it almost does not want the function. But join us now, John Moore Smith, an administrative law attorney on the line. John, good morning, how are you? Doing fine, how are you doing? Doing well, doing well. So my take from your op-ed yesterday, really this, the way the commission, the Medical Cannabis Commission is going about its business here. It's just a violation of so many precedents and so many norms when you look at administrative law and that's sort of your gripe with it. Kind of walk us through it. Right, Alabama, let me back up, back in late 1970s, I was on the Board of Directors of the Administrative Law section of the Alabama State Bar. And the State Bar asked us to draft an Administrative Procedure Act that was to be a minimum procedural standard for all state agencies to ensure basic fairness. Before that, the bar had gotten a lot of complaints from practicing lawyers before agencies that it was a disaster. It was like appearing before Judge Roy Bean in the old Wild West, agencies had no rules. They met in secret. They basically did whatever they wanted to with complete unfettered discretion and did not pay any attention whatsoever to due process of law, which is simply a synonym for fundamental fairness. Anybody who appears before the state simply wants to be treated fairly and agencies weren't. So we passed that law. It was enacted in 1981 and has been the law ever since. And it sets up a procedure where, for example, with an applicant for a license, they will apply if another person or party has a private interest as distinguished from a public interest, making them with a law cause and effective party, they can intervene. And if they intervene, there has to be essentially an administrative trial where the applicant puts on evidence and supported their application. The intervener has the right to cross the examiner. Witnesses challenge the evidence, put on their own witnesses. The goal being to get to the truth. Does anybody can write anything they want to down in an application, and it's all under oath. It's got rules of evidence, cross-examination. There's a court reporter who makes a complete record, and that way a reviewing court can review everything that's happened and determine if the agency followed the law or not. All of that has been totally ignored by this commission. It's a throwback to the way agencies worked in the '60s and '70s where they simply want to exercise their own judgment without being bothered by evidence, facts, or anything else. It's been a complete travesty. It violates the Alabama Administrative Procedure Act in almost every way that it functions. It also violates constitutional due process of law in the state of Alabama. The act itself even says that the licenses themselves are a "revocable privilege" which is not a property right. What that means legally is they're saying that if there's no property right, there's no right constitutionally to due process of law. Well, that's completely wrong in the state of Alabama because the Alabama Supreme Court has held specifically that the right to enter into the practice of medicine, or albeit any occupation, is a property right, and you have to accord that applicant due process of law. That is the law of Alabama. And this commission has just run a rough shot over it. That's why all of this litigation is going on. In fact, it's a travesty for the people of the state for the simple reason that if they had just done what they were supposed to do, all of the administrative procedure act have proper hearings before they awarded licenses, people would be getting medical marijuana now in the state of Alabama. But it's mired in just a mess. And it's even now questionable whether this commission can even give due process because they've already decided who should be awarded and who shouldn't be, and even if it goes back to them, the three major elements of due process of law are noticed, so you know what to prepare about, a hearing, but before an impartial tribunal. There is no way any member of that commission could be impartial since they've already made a subjective decision of who should be awarded licenses and who should be denied the licenses. That's why in the court litigation is going on right now, the challengers have asked Judge Anderson to, in essence, take it away from the commission to appoint a special master who will conduct the hearings that should have been done by the commission to start with and essentially take it over. But it has been an absolute disaster by an agency that has just determined not to follow the law in any manner. Is there anything in the statute that created this Cannabis Commission that created the way we're going to do business, that would suggest that it isn't, that the administrative law doesn't apply to it, that they operate on a different playing field? That's a good question, and we protected against that when we drafted the Administrative Procedure Act because we thought agencies would try to avoid it. And the act itself states that in any subsequent creation of agencies, if they want to exempt themselves from the Administrative Procedure Act, the legislature has to specifically do that in the law itself. In the Compassion Act, they not only did not do that, but they have a provision in there where they make themselves expressly subject to the Administrative Procedure Act and then ignored it. It's crazy. Well, because I mean, that's what it looks like to me, and I mean, you know, my eyes goes over. Well, I look at a lot of this, but John, they look like they kind of make it up as they go along. I mean, is that a fair assessment? It's a very fair assessment, and they don't care what laws they violate. When they made the decision on these licenses that were supposedly to be awarded, they did it in secret in an executive session. That's a complete violation of the Alabama Open Meetings Law. This is where the judge has issued temporary restraining orders against them and everything else. It's like they are absolutely determined to make the decision on who gets the licenses in private based on just their own wishes and nothing else. I've practiced Administrative Law for 50 years now, and I have not since the Administrative Procedure Act. I've never seen anything like this. I mean, it is so far beyond the pale. It's ridiculous. I mean, and the other problem with this, and I didn't excuse my ignorance on it, but early on, like they operated kind of with a cloak of secrecy that not all the applications were like to say when you lay them out and when they evaluate them to them. The criteria, I mean, it wasn't clear, was kind of at their own discretion, which either they're grossly misinterpreting the law or the law. It's just not very good. Well, the Compassion Act itself isn't where the problem is. The problem is in the rules and regulations that they adopted and in their attitude where they frankly do not want to follow the law. It's like, for some reason, they don't want their discretion entangled any way by the law. They simply want to make their own decision on who is licensed and who is not. In fact, the licenses that are awarded, you don't even know why they were awarded and the ones that are denied. You don't know why they were denied. They just simply did it. And that is so violation of the Constitution and the law of Alabama that it's unquestionable. Well, Debbie, this now here we are sitting here and like you said, it's been three years or so. July 31, 2024, we're still talking about this. What have we done today? Is it just a matter of, hey, these guys need to be told to follow the rules that are on the books? Or does the legislature need to intervene here? Actually, that's a very good question. I honestly don't have an answer to it for the simple reason that it is so messed up right now. And like I said, even from a constitutional standpoint, I don't know if the Commission themselves could vote on it. My attitude would be that the only way that it under the present law that can work is with what the lawsuits have asked for, which is for the judge to take it over, a point in essence, a special master would be a hearing officer, take evidence, make decisions on who the best applicants are, and then have those awarded the five licenses that are available. Other than that, the legislature is going to have to get back involved and start all over, which is a shame. But this Commission has just messed everything up. Well, I mean, did they overcomplicate it? I mean, like, you know, like, I don't know. Could they have, could the legislature have made this like a lot simpler or a lot more cut-dried, that say, okay, this is the criteria or whatever it may be, but they've tried to like be too cute by half and have Alabama growers and Alabama distributors and all of these like things that I don't know, like, if it's the way they view it, the way they wanted to do it, it just made it very, very hard to execute. Well, they did and it's almost like the way their rules were written, they intended to avoid the law. And to just, like I said, go back to the throwback before the Administrative Procedure Act back in the '60s and '70s, just do whatever they want to do and, you know, act arbitrarily, capriciously, whatever they want to do in making their decisions. And like I say, they have really, by their own actions, created all of these problems. And in essence, for the award of license, they'd have to go back to square one and actually create a situation where everybody would have to apply and other parties would have a right to intervene in that. And you would, in essence, have these evidentiary hearings on whether they meet the criteria or not and who's better and all that kind of thing, you know, which they just did not do. They refused to do it and they've wasted a tremendous amount of time and money. Well, the second me says this. I mean, if this were something else, the state really, really wanted a rural broadband or be it some kind of economic development or something that, I mean, this would have been ironed out, this would have been straight down a lot better. We wouldn't be in this kind of precarious situation. It's almost as if the powers that be look at this and are kind of okay with this dysfunction as long as it delays the inevitable. To be honest, that may well be the case. I don't know. I mean, there has to be some reason why an agency simply refuses to be fair to applicants and creates monstrous amounts of litigation. I mean, frankly, their actions make no sense, not logical sense. And it makes you wonder if there is some kind of private agenda going on, but, you know, nobody knows. Yeah, it's just, and I guess this is the, like, if they can't get this right, John, I mean, like, why? And I know this is totally separate from what you've written, but they want us to vote in the change that Alabama Constitution to allow gambling and gaming. And I think a lot of this is just because there's so much on the line here with these medical marijuana dispensaries and growers and licensees and so much that they can't get this right. I mean, is this a prelude to what would apply if they tried to do gambling or anything else for that matter? Well, maybe they would wake up and put some provisions in the legislation or the amendment that comes about for gambling that makes sure that agencies do, you know, a core due process to people. So that it doesn't get all tied up. This one is just, this is unique in my experience. I've never seen anything like this where an agency just blumps the law and does what they want to do and then gets it tied up in major litigation with multiple parties involved. There is no logic behind it. And I got to think this, I mean, this cannot be without some kind of significant expense in the state of Alabama. Oh, it's been very expensive, I'm sure, to the state of Alabama. This, I mean, there probably have been 20 court hearings on this thing so far. And, you know, they're lawyers involved. The state's got, you know, the state has the, you know, the expenses for the commission. I would imagine the state spent seven figures on this in legal fees already. But they're just guessing, but given the sheer volume of litigation that's gone on, I mean, they're, oh, probably 15, 20 lawsuits and different things that have gone on in this one case. And the state's involved in every one of them. It's a ridiculous money as well. Joe, we got to leave it there, we'll keep our eye on this stuff, but thanks for making time for us this morning. Oh, it's been a pleasure and a good talking to you, have a good day. John Moore Smith, ladies and gentlemen, got an op-ed up at 18-19 news about the medical cannabis commission. We'll be right back. This is "Up in Talk" 106 times. She tried to tell me to stay away from the train line. She said that all the railroad men just drink up your blood like wine.