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Don't take last week's Arkansas Supreme Court ruling to allow the issue of medical marijuana cultivation licenses as the last word on the issue.

What the state's high court said was that the lower court that stopped the licensing process several months ago did not have jurisdiction at that time.

It doesn't mean there won't be a time when a court could properly intervene.

This business of selecting which growers will get the few authorized licenses for cultivation of the drug in Arkansas is not settled.

At the top of the heap are continuing questions about the way applicants were scored as state decision-makers culled the list from 82 to five.

More litigation is promised, but what happened last week is worth noting. Here's the background:

It all began with voters' passage in 2016 of a constitutional amendment to legalize medical marijuana in Arkansas, creating a Medical Marijuana Commission to oversee its implementation. That includes licensing of growers and dispensaries of the drug.

Only marijuana grown in Arkansas may be dispensed here legally, so the few allowable cultivation licenses are particularly prized by those who want to get in on the ground floor of the industry. The "winners" must pay a $100,000 licensing fee and post a $500,000 performance bond just to get started.

Amendment 98 allows no more than eight cultivation facility licenses. The commission named only five. That happened in late February.

By mid-March, Naturalis Health LLC, one of the unsuccessful applicants, filed the lawsuit in Pulaski County Circuit Court that was dismissed last week by the Supreme Court. This lawsuit challenged the commission's process for issuing cultivation-facility licenses.

Pulaski Circuit Judge Wendell Griffin issued a temporary restraining order just hours before the commission was scheduled to issue the actual licenses.

A few days later, after a hearing, he ruled the licensing process unconstitutional and enjoined the Medical Marijuana Commission from issuing them.

The decision brought the process to a halt.

The lower court jumped the gun, however. Griffin ruled on the subject matter before a court could lawfully intervene, according to the Supreme Court.

A critical part of the decision, written by Associate Justice Rhonda Wood, explains the separation of powers in state government.

None of the three branches "shall exercise any power belonging to either of the others," she noted. "This is foundational to our government. The judicial branch must not abdicate this by reviewing the day-to-day actions of the executive branch."

The courts may by law review some agency decisions after "adjudication," Justice Wood wrote for the majority, asserting there had been no adjudication, or quasi-judicial decision, in the Medical Marijuana Commission's action.

Chief Justice Dan Kemp, in a concurring opinion, amplified the difference in the roles of the court and the executive-branch agency, the Medical Marijuana Commission.

"This court will not rewrite administrative-agency rules, nor will it substitute its judgment and discretion for that of the agency," he wrote. "The court may, however, reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions or made upon unlawful procedure."

He specifically urged the Medical Marijuana Commission "to review its rules and procedures and to cure any deficiencies."

That certainly suggests there are deficiencies yet to be cured.

Commentary on 06/27/2018

Print Headline: Exorcizing restraint

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