Complicated. Byzantine. Mind-numbing.
These are words that accurately describe the Illinois court processes currently dominating the state’s licenses. There’s a lot of cases, literally dozens, that overlap and influence each other. It’s so complicated, attorneys for the state drew up a memo that articulates where each case stands. Warning: This brief hews to the state’s opinion of things, not how things might actually be.
[Read the Illinois attorneys’ overview brief.]
But for those of you trying to keep track of where licenses are going as a whole, we’ve narrowed it down to just four cases you should be paying attention to. Actually three, since one case was recently resolved.
- Craft grow licenses are coming
First, the good news. Earlier this month a Sangamon County Circuit Court judge lifted limitations on the state barring it from awarding 60 new craft grow licenses. That means the Illinois Department of Agriculture can conduct a lottery as soon as it pleases to award the 60 licenses it first meant to award by December 21, 2021.
The Department has typically not provided much information on licensing progress, but according to its website, “The Department is in the process of completing all remaining reviews of craft grower applications consistent with the court’s ruling.” Which in our experience means they could announce the new licenses any day now.
- The dispensary supercase
This is a consolidated case in Cook County Circuit Court for over two dozen dispensary applicants who charge that the state did not treat them correctly in the application process. These fall into “Administrative Review Law”, a sliver of Illinois law that governs suits filed against the state when someone disagrees with an administrative decision. In this case, Illinois regulators’ decision to not allow certain applicants to compete in the lottery for dispensary licenses.
While this case is moving gradually, and may take months to resolve, it really only impacts the fortunes of the applicants in the case because…
- State constitutionality case – home of the stay
Last week the judge overseeing the dispensary supercase announced she believed she did not have jurisdiction over a stay originally placed in WAH Group LLC v. Illinois Department of Financial and Professional Regulation (IDFPR) that bars the state from awarding 185 dispensary licenses. That means authority over the stay remains with the WAH v. IDFPR case, which is over charges from WAH that the entire application scoring process is unconstitutional in Illinois, on the grounds that the extra points awarded to applicants led by military veterans creates a “special class”.
The original judge for the case, who issued the stay, retired from the bench in January. A new judge was appointed, but on Tuesday the plaintiff, WAH Group, requested a new judge, and was granted that motion. A new judge is likely to be appointed by the end of the week.
But regardless of who sits on the bench, on April 25, the case is scheduled for a hearing on the state’s motion to dismiss, which if successful, would lift the stay. If not, then the stay is likely to continue until the entire issue is litigated, which has the potential to last into 2023.
- Federal constitutionality case – the new wrecking ball
Earlier this month a pair of litigants filed suit in federal court charging that the entire Illinois licensing process is federally unconstitutional because applicants are required to be Illinois residents. The litigants, Mark Toigo and Juan Finch, say that residency requirements create a special class, which is not allowed under the equal protection clause of the U.S. Constitution’s 14th Amendment.
Close readers of Grown In may recall Mr. Toigo’s successful federal suit against residency requirements in Missouri, and the arguments he makes in this case about Illinois’ requirements are basically the same.
[Read the Toigo Illinois complaint.]
Toigo and Finch are asking that the court overturn the entire application process for all 185 dispensary licenses awarded as well as the process for 55 new dispensary licenses Gov. J.B. Pritzker announced will be awarded later this summer. Then, once that is overturned, create a new process that allows non-residents to apply for licenses.
Since Toigo II (remember the original was in Missouri) is relying on ground already litigated before another federal judge, it has the potential to overturn the entire Illinois license process long before all the state-level cases are resolved.
