Cook County Circuit Court / From Zoom

Cook County Circuit Court Judge Moshe Jacobius ordered a stay on Wah Group v. IDFPR last Thursday, May 6, 2021. Credit: Cook County Circuit Court / From Zoom

This morning the future of 185 Illinois adult-use dispensary licenses will be decided in a hearing of a Cook County Circuit Court case that’s been grinding on for almost a year. The case, Wah Group LLC et al v. The Illinois Department of Financial and Professional Regulation (IDFPR), centers on whether or not the application scoring system used by the state is unconstitutional by the Illinois state constitution due to the extra points awarded in scoring to teams led by military veterans.

Here’s six things to know to better understand the case.

  1. What exactly are the plaintiffs charging?

A pair of Illinois dispensary applicant teams, Wah Group LLC and HAAAYY LLC charge that the so-called “veterans’ bonus points”, five points awarded to applicants who have 51% ownership by military veterans, creates a special class of applicants. The term “special class” legally refers to groups of people that are unfairly advantaged over others because of an intrinsic, unchangeable aspect, like race, gender, or sexual orientation. The Illinois Constitution, through its equal protection clause, as well as the federal Constitution’s Fourteenth Amendment, guarantees “equal protection

of the laws”, which has been universally interpreted that no one group can be advantaged over another because of who they are. 

The plaintiffs in this case argue that since people can’t simply obtain veteran status overnight, the extra points are going to a group unfairly advantaged. When they filed suit back in September 2020, their case was about what’s now called the Tied Applicants Lottery, where 21 teams received perfect scores (a likely larger group now that other teams have been rescored after additional discrepancy notice rounds), perfect scores that are only possible for veteran-led teams.

  1. So, what do the plaintiffs want from this case?

In their complaint they demand to be awarded outright the licenses they applied for, an unlikely outcome and likely a legal negotiating tactic. The judge in the case, Judge Moishe Jacobius, has broad powers here however. A more likely outcome would be that Judge Jacobius finds the veterans points illegal, and thus voids them from all applicant scores, therefore allowing the plaintiffs and many other groups to participate in the Tied Applicant Lottery.

  1. This was initially about the Tied Applicants Lottery, why were the other lotteries impacted?

Judge Jacobius did not explain why he ordered the state to not award licenses for all lotteries in his emergency order. But one possibility was that he was irked by the behavior of the state, who, through the Illinois Attorney General’s legal team, had promised in a May hearing to alert the judge when the state was planning to move forward with the lotteries. But the state didn’t officially notify anyone that the lotteries were officially moving forward until July 28, the day before the first lottery. Judge Jacobius, who has been on the bench for decades, is well known among attorneys to have no tolerance for hijinx.

  1. Will today’s hearing decide whether all the licenses can go forward?

It’s always hard to say what a judge will do, but it seems likely that Judge Jacobius will make an immediate decision on whether to allow the state to award licenses to the selected teams in the July 29 Qualifying Applicant Lottery and the August 5 Social Equity Justice Involved Lottery. As for the Tied Applicant Lottery scheduled for August 19, the judge will need to decide if the lottery can go forward and if the Wah case should be dismissed, as lawyers for the Attorney General argued seven months ago.

  1. When should we expect a decision?

The hearing is scheduled for 10:00 a.m. Central Time today and is likely to take an hour or two for oral arguments. The judge may decide to make a pronouncement from the bench by lunchtime, or could announce that he’ll issue a written decision later in the day. There’s a lot of attention focused on his decision, but Judge Jacobius is likely aware that whatever he decides, it will have to stand up in the Appeals Court.

  1. Could this case impact other kinds of licenses?

Craft grow and infuser applicants and license winners Grown In has spoken to are watching this case closely. Although those licenses were awarded through a separate process managed by the Illinois Department of Agriculture (rather than IDFPR, which regulates dispensaries), scoring for craft grow and infuser scoring also included bonus points for veteran-led teams. Although Illinois regulators haven’t released craft grow and infuser scores, a spokesperson for Gov. J.B. Pritzker told Grown In that the craft grow and infuser licenses awarded so far all went to veteran-led teams.

If Judge Jacobius makes a decision in favor of voiding veterans points for dispensary scoring, it seems likely there will be new lawsuits filed against the Department of Agriculture to change craft grow and infuser license scores.

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Editor Mike is an itinerate reporter, recovering political consultant, and strategy game devotee.