Judge upholds Baker decision on marijuana

Says governor’s 2 major objections could be addressed

SUPERIOR COURT JUDGE Kenneth Salinger ruled on Thursday that Gov. Charlie Baker’s decision to close recreational marijuana stores as non-essential was constitutional, and not subject to second-guessing by him.

But then the judge seemed to second-guess anyway, pointing out that the marijuana businesses that challenged Baker’s decision “convincingly argue” that the governor’s two main reasons for his decision – that retail stores attract large crowds and out-of-state customers – could be addressed.

He also seemed to entertain, at least briefly, the argument that it was arbitrary and capricious of the governor to treat recreational marijuana differently than alcohol and medical marijuana during the COVID-19 crisis.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

“But none of this means that the lines drawn by the Governor are irrational. Plaintiffs cannot prevail by showing that adult-use marijuana establishments could safely be reopened with limitations such as requiring all customers to pre-order and barring sales to out-of-state residents,” the judge wrote. “Even assuming the Governor could accomplish the same public safety goals in a way that imposed less of a burden on the Plaintiffs, that would not make the Governor’s emergency orders unconstitutional.”

One of the plaintiffs, Green Lady Dispensary, a firm that grows, manufactures, and sells adult-use marijuana products on Nantucket, finds itself in a desperate predicament.  While some recreational marijuana firms may be able to survive under a ruling by the Cannabis Control Commission allowing them to sell their inventory to companies in the medical marijuana market, that option is not available to Green Lady. Marijuana use is still illegal under US law, and federal oversight of the sea and air makes it impossible to transport marijuana to and from Nantucket without violating the law.

“The Green Lady faces a very real prospect of being forced out of business completely,” Salinger wrote in his opinion. “It has no income. It cannot sell any of its inventory to the medical supply chain because it cannot lawfully transport any marijuana products off Nantucket island. And, like all other marijuana establishments, it cannot participate in any Federal economic relief programs.”