On Monday, Kristen Figueroa, in her official capacity as Commissioner of Maine Department of Administrative and Financial Services, filed a reply brief to the First Circuit Court of Appeals in the case of Northeast Patients Group v. Figueroa.
The appeal references a separate case, brought by the same plaintiffs in the District of Maine in 2020, that challenged the state’s residency requirement for adult-use cannabis business licensing. The plaintiffs in the case argued that Maine’s residency requirement runs afoul of the dormant Commerce Clause because it expressly privileges Maine residents over residents of other states by allowing them to invest in Maine’s marijuana industry. The case was dismissed in late 2020; the stipulation of dismissal stated that the residency requirement “is subject to significant constitutional challenges and is not likely to withstand such challenges,” and therefore, the Attorney General does not intend to defend the Residency Requirement.
The appeal directly arises from a similar case challenging a related residency requirement for Maine’s medical marijuana business licensing program, Despite the dismissal of the earlier challenge, the state stated they are participating in the appeal to the First Circuit because “the courts are the ultimate arbiter of a statute’s constitutionality,” and Maine “is therefore defending the constitutionality of the residency requirement at issue here so that this Court can conclusively decide” the constitutional question.
In the reply brief, the state defends the residency requirement by arguing that the appellees’ grievances are not with the state of Maine, but with the Controlled Substances Act, enacted by the United States Congress, which makes marijuana illegal under federal law. Further, the state argues that the residency requirement does not trigger the dormant Commerce Clause because to violate the dormant Commerce Clause, the statute at issue must not “expand or enlarge” legal commerce if struck down. Since marijuana is illegal federally, the statute cannot have an effect on its legal commerce federally, the state argues.
Further, the state argues that Congress authorized Maine to enact its residency requirement because it is explicit in its desire to eliminate economic protections for the marijuana market since it has outlawed the market in its entirety.
Figueroa and the State are represented by Maine’s Attorney General’s Office and the appellees, Northeast Patients Group and Street Capital Partners, LLC are represented by Preti Flaherty Beliveau & Pachios.
