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Doe v. Alternative Medicine Maryland, LLC

Court of Appeals of Maryland

August 25, 2017

JANE AND JOHN DOE ET AL.
v.
ALTERNATIVE MEDICINE MARYLAND, LLC ET AL.

          Argued: July 27, 2017

         Circuit Court for Baltimore City Case No. 24-C-16-005801

          Barbera, C.J. Greene McDonald Watts Hotten Getty Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

          OPINION

          WATTS, J.

         This case arises out of a dispute regarding the unique process of pre-approving and licensing medical cannabis growers in Maryland for the first time under Md. Code Ann., Health Gen. (1982, 2015 Repl. Vol.) ("HG") § 13-3301 et seq. In 2013, the General Assembly authorized the Natalie M. LaPrade Medical Cannabis Commission ("the Commission"), Respondent, originally entitled the Natalie M. LaPrade Medical Marijuana Commission, to be responsible for pre-approving and licensing medical cannabis growers in Maryland. See 2013 Md. Laws 3625 (Vol. IV, Ch. 403, H.B. 1101). The General Assembly directed that the Commission would be independent, but would function within the Department of Health and Mental Hygiene ("the Department"), [1] Respondent.[2] See id. at 3623. In 2015, the General Assembly gave the Commission its current name, the Natalie M. LaPrade Medical Cannabis Commission. See 2015 Md. Laws 1164 (Vol. II, Ch. 251, H.B. 490).

         The Commission, its members, and the Department were sued by Alternative Medicine Maryland, LLC ("AMM"), Respondent, a business that applied for, but did not receive pre-approval for, a medical cannabis grower license. In a complaint for declaratory judgment and preliminary and permanent injunctive relief, AMM contended that, during the pre-approval process, the Commission failed to follow applicable law with respect to the requirement to consider racial and ethnic diversity, and requested that the Commission be prohibited from issuing final approvals for the first group of medical cannabis grower licensees until the Commission took corrective action, consisting of actively seeking racial and ethnic diversity among medical cannabis grower licensees and conducting a study on the existence of discrimination with respect to the medical cannabis statutes. Essentially, AMM requested that the Commission be required to reconduct the pre-approval process.

         Notably, this case does not involve resolution of the issue of whether AMM is correct in its contention that the Commission had failed to consider racial and ethnic diversity of potential medical cannabis grower licensees. Instead, we must determine, chief among other issues, whether the Circuit Court for Baltimore City ("the circuit court") erred in denying a motion to intervene that was filed by medical cannabis growers that had received pre-approvals for medical cannabis grower licenses, a coalition and trade association that advocate for the use of medical cannabis, and patients who would potentially receive medical cannabis as treatment for illnesses.

         To better understand this case, it is helpful to provide an introductory review of the statutes that govern the pre-approval and licensing of medical cannabis growers, as well as the underlying facts and procedural history of the case. The Commission, a sixteen member body that functions within the Department, HG §§ 13-3302(b), 13-3303(a), is responsible for licensing medical cannabis growers, dispensaries, and processors, HG §§ 13-3306, 13-3307, 13-3309. "The purpose of the Commission is to develop policies, procedures, guidelines, and regulations to implement programs to make medical cannabis available to qualifying patients in a safe and effective manner." HG § 13-3302(c). HG § 13-3306(a)(1) provides that the Commission "shall license medical cannabis growers that meet all requirements established by the Commission[.]" Currently, "the Commission may license no more than [fifteen] medical cannabis growers." HG § 13-3306(a)(2)(i). Starting on June 1, 2018, "the Commission may issue the number of licenses necessary to meet the demand for medical cannabis[.]" HG § 13-3306(a)(2)(ii). Of particular significance to this case is HG § 13-3306(a)(9)(i), which provides that: "The Commission shall: 1. Actively seek to achieve racial, ethnic, and geographic diversity when licensing medical cannabis growers; and 2. Encourage applicants who qualify as a minority business enterprise, as defined in § 14-301 of the State Finance and Procurement Article."[3] (Paragraph breaks omitted). In other words, HG § 13-3306(a)(9)(i)1 requires that the Commission, in licensing medical cannabis growers, actively seek to achieve racial, ethnic, and geographic diversity.

         After HG § 13-3306(a)(9)(i)1 became effective, during the 2015 legislative session, a member of the General Assembly representing Baltimore County, Delegate Christopher R. West, requested that the Office of Counsel to the General Assembly-a division of the Office of the Attorney General-provide advice as to whether HG § 13-3306(a)(9)(i)'s requirement for racial and ethnic diversity was constitutional. In a letter[4] dated March 13, 2015, Assistant Attorney General Kathryn M. Rowe ("Rowe") responded to Delegate West that the legislative history of the medical cannabis statute indicated that, in a bill review letter, the Attorney General of Maryland had previously advised that the statute must be implemented consistent with constitutional provisions described in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) and Fisher v. Univ. of Tex. at Austin, 133 S.Ct. 2411 (2013). According to Rowe, in Croson, the Supreme Court held that, for a state entity to take action to correct discrimination, there must be a strong basis in evidence of past discrimination at the time a race conscious selection program is established. Rowe advised that, in the area of government contracting, to implement a race- or ethnicity-based selection process, a study is required "showing a significant statistical disparity between the availability of . . . minority subcontractors" and the use of the minority subcontractors by the governmental entity. (Citation and internal quotation marks omitted). Rowe added that, in Fisher, the Supreme Court indicated that it would "closely scrutinize a government's justification of a race-conscious program and its evidence in support of that program." Rowe concluded that "[c]onstitutional limits [] would prevent the Commission from conducting race- or ethnicity[-]conscious licensing in the absence of a disparity study showing past discrimination in similar programs."

         Rowe's letter was provided to the Commission. On September 14, 2015, the Commission adopted Md. Code Regs. ("COMAR") 10.62.08.05, which governs the Commission's review of applications for medical cannabis grower licenses. COMAR 10.62.08.05 does not identify racial or ethnic diversity as factors to be considered in issuing medical cannabis grower licenses, but provides that "[f]or scoring purposes, the Commission may take into account the geographic location of the growing operation to ensure there is geographic diversity in the award of licenses." COMAR 10.62.08.05J.

         On August 5, 2016, the Commission voted to issue pre-approvals for the applications for medical cannabis grower licenses of the top fifteen applicants, including the following eight Petitioners: Curio Cultivation, LLC ("Curio Cultivation");[5] Doctor's Orders Maryland, LLC ("Doctor's Orders"); ForwardGro, LLC ("ForwardGro"); Green Leaf Medical, LLC ("Green Leaf Medical"); Holistic Industries, LLC ("Holistic Industries"); Kind Therapeutics, USA, LLC ("Kind Therapeutics"); SunMed Growers, LLC ("SunMed Growers"); and Temescal Wellness, LLC ("Temescal Wellness") (together, "the Growers"). AMM was one of the businesses whose application for a medical cannabis grower license was not pre-approved. AMM contends that it is more than 80% African-American owned.

         On October 31, 2016, in the circuit court, AMM filed a complaint against the Commission, its members, and the Department contending that the Commission failed to consider racial and ethnic diversity in pre-approving applications for medical cannabis grower licenses, and that, as such, the Commission had violated HG § 13-3306(a)(9)(i)1. AMM sought an order prohibiting the Commission from issuing final approvals for the fifteen medical cannabis growers that had been issued pre-approvals. AMM also sought, among other relief, an order requiring the Commission to reconduct the pre-approval stage of the medical cannabis grower licensing process. AMM requested that the Commission be required to conduct a disparity study and to actively seek racial and ethnic diversity among growers.

         On December 30, 2016, certain Petitioners-namely, Curio Cultivation, Doctor's Orders, ForwardGro, SunMed Growers, the Coalition for Patient Medicinal Access, LLC, [6]and John and Jane Doe, who are minors who allege that they suffer from epileptic seizures and seek medical cannabis (together, "the Patients")-filed a Motion to Intervene. On the same date, those Petitioners also filed a motion to dismiss, contending, among other things, that the doctrine of laches barred AMM's claims. On January 25, 2017, Holistic Industries also filed a Motion to Intervene.

         On February 21, 2017, the circuit court conducted a hearing and denied the motions to intervene and the motion to dismiss. The circuit court concluded that Petitioners had not met the burden of proving that they were entitled to intervention as of right. The circuit court also denied Petitioners' request for permissive intervention. The circuit court concluded that the motion to dismiss was moot because Petitioners remained nonparties. Petitioners filed notices of appeal.

         On May 15, 2017, AMM filed a "Motion for Emergency Temporary Restraining Order and Request for Order To Show Cause Why a Preliminary Injunction Should Not Be Granted and Request for Immediate Emergency Hearing." In the motion, AMM sought a temporary restraining order and a preliminary injunction preventing the Commission from issuing final approvals for medical cannabis grower licenses and from conducting inspections of the fifteen businesses whose applications for medical cannabis grower licenses were pre-approved. On May 25, 2017, the circuit court conducted a hearing and issued a temporary restraining order.

         On May 30, 2017, ForwardGro, a grower that had passed all inspections and been issued a license, filed a notice of appearance of new counsel, and stated that it intended to "govern itself as a party" in this case. All other Petitioners-the Coalition for Patient Medicinal Access, the Maryland Wholesale Medical Cannabis Trade Association (together, "the Trade Association Petitioners"), the Patients, Curio Cultivation, Doctor's Orders, Green Leaf Medical, Holistic Industries, Kind Therapeutics, SunMed Growers, and Temescal Wellness-filed renewed motions to intervene.

         The circuit court denied the renewed motions to intervene, and denied ForwardGro's request to "govern itself as a party." All Petitioners other than ForwardGro, Holistic Industries, and Temescal Wellness filed a notice of appeal.

         While this case was pending in the Court of Special Appeals, Petitioners other than ForwardGro, Holistic Industries, and Temescal Wellness filed a petition for a writ of certiorari and a motion to stay the proceedings in the circuit court. ForwardGro, Holistic Industries, and Temescal Wellness separately filed Lines in which they joined the petition. This Court granted the petition and the motion to stay.

         In this Court, Petitioners-i.e., the Growers, the Trade Association Petitioners, and the Patients-raise several issues. Petitioners contend that the circuit court erred in denying the motion to intervene. Petitioners argue both that they were entitled to intervention as of right, and that the circuit court abused its discretion in denying permissive intervention. Petitioners seek dismissal of the case based on the doctrine of laches. And, Petitioners request that, in the event that this Court remands the case to the circuit court, this Court instruct the circuit court to consider the issues that Petitioners raised in the motion to dismiss-namely, that the doctrine of laches applies, that this is an action for administrative mandamus that was not instituted timely under Maryland Rules 7-202 and 7-203, and that, if reviewed at all, the action must be considered a request for on-the-record judicial review of the Commission's actions under the substantial evidence test as opposed to a complaint for a declaratory judgment.

         On July 27, 2017, this Court heard oral argument. On July 28, 2017, this Court issued a per curiam order in which this Court: (1) reversed the circuit court's judgment with respect to the denial of intervention of the Growers and remanded the case to the circuit court with instructions to grant intervention as of right to the Growers; (2) affirmed the circuit court's judgment with respect to the denial of intervention of the Trade Association Petitioners and the Patients; (3) remanded the case to the circuit court for further proceedings including determination of the issue of laches; (4) lifted a stay issued by this Court on June 2, 2017; and (5) ordered that costs in this Court and the Court of Special Appeals be paid 50% by AMM, 25% by the Coalition for Patient Medicinal Access, and 25% by the Maryland Wholesale Medical Cannabis Trade Association.

         In this opinion, we explain the basis for the July 28, 2017 order. In Part I, we hold that the Growers were entitled to intervention as of right under Maryland Rule 2-214(a)(2), to be made a party, i.e., to intervene, under Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) ("CJ") § 3-405(a)(1), and to joinder under Maryland Rule 2-211(a), and that the circuit court abused its discretion in denying permissive intervention; the Patients and Trade Association Petitioners were not so entitled. In Part II, we conclude that this Court will not address the issues concerning laches, administrative mandamus, and the scope of judicial review raised in the motion to dismiss. Rather, we determine that the case is to be remanded to the circuit court with instructions to consider the issues that Petitioners raised in the motion to dismiss in light of the Court's reversal. The circuit court's ground for denying the motion to dismiss-namely, that the issues were moot because Petitioners that sought intervention were nonparties-has become a nullity given our reversal of the circuit court's denial of the motions to intervene as to the Growers.

         BACKGROUND

         Having given an introductory summary of the events underlying this case, we now provide the details of the relevant statutory framework, and factual and procedural background.

         Statutory Framework

         On April 7, 2014, the General Assembly passed House Bill 881 and Senate Bill 923, companion bills, creating the provision that is now HG § 13-3306(a)(9)(i)1, [7] which requires the Commission to "[a]ctively seek to achieve racial, ethnic, and geographic diversity when licensing medical cannabis growers[.]" 2014 Md. Laws 1506 (Vol. II, Ch. 240, H.B. 881); 2014 Md. Laws 1597 (Vol. II, Ch. 256, S.B. 923). Before the Governor approved the bills, in a bill review letter dated April 11, 2014, while reviewing multiple bills, in a footnote discussing various issues involving House Bill 881 and Senate Bill 923, the Attorney General of Maryland stated that "both bills require the Commission to 'actively seek to achieve racial, ethnic, and geographic diversity when licensing' medical marijuana growers and dispensaries." The Attorney General advised that these provisions must "be implemented consistent with the provisions of the United States Constitution as described in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) and Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013)."

         In Croson, 488 U.S. at 505, the United States Supreme Court held that the city of Richmond "failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race." In determining that Richmond had not established sufficient specific past discrimination to support the goal of awarding contracts to minority businesses, the Supreme Court stated that:

Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction. If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise. Under such circumstances, the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race or other illegitimate criteria.

Id. at 509 (citations omitted). The Supreme Court observed that there was no evidence of past discrimination on the part of the city in awarding contracts or any evidence that the city's prime contractors had discriminated against minority-owned subcontractors. See id. at 480. The Supreme Court concluded that the award of public contracts based on racial considerations was subject to strict scrutiny. See id. at 493-94. After noting that Richmond identified no evidence that qualified minority contractors had been passed over for city contracts, the Supreme Court indicated that proper findings were necessary to demonstrate past discrimination. See id. at 510. Later, in Fisher, 133 S.Ct. at 2419-20, when considering an undergraduate admissions system at a public university, the Supreme Court again applied the strict scrutiny standard, and added that once a university "has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation."

         On April 14, 2014, the Governor approved House Bill 881 and Senate Bill 923. See 2014 Md. Laws 1514 (Vol. II, Ch. 240, H.B. 881); 2014 Md. Laws 1606 (Vol. II, Ch. 256, S.B. 923). After HG § 13-3306(a)(9)(i)1 became effective, during the 2015 legislative session, Delegate West requested advice from the Office of Counsel to the General Assembly as to the constitutionality of HG § 13-3306(a)(9)(i)1. In a letter dated March 13, 2015, Rowe advised Delegate West that it was her understanding that the Attorney General of Maryland had previously submitted a bill review letter concerning House Bill 881 and Senate Bill 923 indicating that the bills must comply with the requirements set forth in Croson and Fisher. Specifically, Rowe advised that the Commission would be prevented from participating in race- or ethnicity-conscious licensing of medical cannabis growers without a disparity study showing past discrimination in similar programs. Rowe indicated that, in the absence of such a study, the Commission would be limited to achieving racial and ethnic diversity among growers through the use of broad publicity about the availability of licenses and simply encouraging businesses from various racial and ethnic groups to apply. Rowe advised, however, that it would be constitutional for the Commission to "encourage businesses of any type, including those in the minority business enterprise program, to apply to participate in any type of government program." Rowe stated that she was not aware of any study that would cover grower or dispensary licenses for medical cannabis, or even licenses in general, because "[m]ost State licensing programs license everyone who meets the licensing qualifications, and thus would not give rise to the ability to pick some and not others." Rowe was of the opinion that the dictates of Croson and Fisher were implicated only as to racial and ethnic diversity, but not geographic diversity. Rowe concluded that, if a court declared HG § 13-3306(a)(9)(i)1's requirement of actively seeking racial and ethnic diversity unconstitutional, that requirement would be severable from the rest of HG § 13-3306.

         It is undisputed that, at some point, the Commission received Rowe's letter. The Commission promulgated a regulation, COMAR 10.62.08.05, addressing application review of medical cannabis grower licenses. The June 26, 2015 edition of the Maryland Register included advance notice of the text of COMAR 10.62.08.05. Among other things, COMAR 10.62.08.05A provides that "[t]he burden of proving an applicant's qualifications rests on the applicant[, ]" and COMAR 10.62.08.05G provides that "[t]he Commission intends to award the licenses to the best applications that most efficiently and effectively ensure public safety and safe access to medical cannabis." COMAR 10.62.08.05I provides that "[t]he Commission, or a Commission independent contractor, shall review for a pre-approval for a license the submitted applications as described in Regulations .02B and .05E of this chapter[, ]" and states that "applications shall be ranked based on" certain "weighted criteria" as listed, including operational factors, safety and security factors, commercial horticultural or agricultural factors, production control factors, business and economic factors, and other additional factors. COMAR 10.62.08.05 does not list racial or ethnic diversity as factors to be considered. COMAR 10.62.08.05J, however, provides: "For scoring purposes, the Commission may take into account the geographic location of the growing operation to ensure there is geographic diversity in the award of licenses." On September 14, 2015, COMAR 10.62.08.05 became effective. COMAR 10.62.02.04B, which became effective the same day and is part of the general regulations governing the Commission, provides that "[t]he Commission shall encourage applications from applicants who qualify as minority business enterprises, as defined in" Md. Code Ann., State Fin. & Proc. (1985, 2015 Repl. Vol.) § 14-301.[8]

         Applications for Medical Cannabis Grower Licenses and Complaint

         On September 28, 2015, the Commission made applications for medical cannabis grower licenses available. The application did not require applicants to identify the applicant's and/or any investor's race or ethnicity. The deadline for submitting applications was November 6, 2015. By that date, the Commission had received 145 applications for medical cannabis grower licenses. To assist with the application review process, the Commission entered into an agreement with the Regional Economic Studies Institute ("RESI") at Towson University, and the Commission and RESI designed a "double-blind" subject-matter-expert-based analysis pursuant to which the applicants' names were not revealed to the evaluators or the Commission, and the Commission voted on the top-ranked applications only by coded number.

         On August 5, 2016, the Commission met in open session at the University of Maryland Medical School to consider issuing pre-approvals-also known as Stage 1 approvals-for medical cannabis grower licenses. At the meeting, the Commission voted with respect to ranking the top twenty applicants for a medical cannabis grower license and voted to issue pre-approvals to the top fifteen applicants, including the Growers. As to a grower's status after pre-approval, COMAR 10.62.08.06E provides that "[t]he Commission may rescind pre-approval of a grower license if the grower is not operational within [one] year of pre-approval." And, in relevant part, COMAR 10.62.08.07B(1) provides that "[t]he Commission may issue a license [] to grow medical cannabis . . . on a determination that[ a]ll inspections are passed and all of the applicant's operations conform to the specifications of the application as pre-approved pursuant to Regulation .06 of this chapter." (Paragraph break omitted).

         AMM applied for, but was not awarded, pre-approval for a medical cannabis grower license.[9] In paragraph 6 of its complaint for declaratory judgment, AMM asserted that it is more than 80% African-American owned. In its answer to the complaint, the Commission responded that it was without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph 6 of the complaint and therefore denied the allegation.

         On October 31, 2016, AMM filed its complaint for declaratory judgment in the circuit court naming the Commission, its members, and the Department as defendants. AMM asserted that the Commission had failed to consider racial and ethnic diversity in the pre-approval process for issuing medical cannabis grower licenses in contravention of HG § 13-3306(a)(9)(i)1. AMM sought an order prohibiting the Commission from issuing final approvals for the fifteen medical cannabis growers whose applications for medical cannabis grower licenses were pre-approved "until such time as the Commission takes corrective action with respect to the unlawful, unconstitutional, arbitrary, capricious, and/or unreasonable actions it has taken thus far[.]" AMM also sought, among other relief, a determination by declaratory judgment "that the Commission's actions were arbitrary, capricious, unreasonable, and/or illegal[, ]" and an order requiring the Commission "to redo" the pre-approval stage of the medical cannabis grower licensing process. AMM requested that the Commission be required to actively seek racial and ethnic diversity among growers and "to conduct a study on the existence and effect of past and present discrimination as applicable to the [General Assembly]'s statutory directives[, ]" i.e., a disparity study.

         Motions to Dismiss and Motions to Intervene

         On December 12, 2016, the Commission filed a Motion to Dismiss, or, in the Alternative, for Summary Judgment, contending, among other things, that the case should be dismissed in its entirety pursuant to Maryland Rule 2-211, entitled "Required joinder of parties, " because the businesses whose applications for medical cannabis grower licenses were pre-approved were necessary parties, but had not been joined as defendants.

         On December 30, 2016, certain Petitioners-namely, Curio Cultivation, Doctor's Orders, ForwardGro, SunMed Growers, the Coalition for Patient Medicinal Access, and the Patients-filed a Motion to Intervene, contending that they had a direct interest in the action and that delay was prejudicial to them. On the same date, those Petitioners filed a Motion to Specially Assign, Consolidate, and Dismiss This Action, requesting that the case be consolidated with a pending case involving other businesses that were denied pre-approval, [10] and contending, among other things, that AMM's claims were barred by the doctrine of laches and that the matter is, in actuality, a request for administrative review of an agency action, i.e., judicial review of an agency decision. Specifically, as to the doctrine of laches, Petitioners argued that AMM exercised undue delay in filing its complaint and that they were prejudiced by the delay. Petitioners contended that the action was not timely filed because on August 15, 2016, the Commission posted notice of the pre-approval selections on its website. According to Petitioners, this was public notice to AMM that it had not been selected; yet, AMM did not file its complaint until October 31, 2016. According to Petitioners, the posting on the website constituted notice of a final administrative decision and a petition for judicial review was required to be filed within thirty days of that date. Essentially, Petitioners asserted that AMM's complaint was actually an action for administrative mandamus, i.e., a petition for judicial review, that was not timely filed. According to Petitioners, if reviewed at all, the complaint should be considered a petition for judicial review of an agency action, subject to an on-the-record review under the substantial evidence test and whether the Commission's action was arbitrary or capricious.

         On January 5, 2017, AMM filed an opposition to the motion to intervene, contending that the proposed grower intervenors had failed to demonstrate that their interest in a medical cannabis license would be impaired if the Commission were required to reconduct the pre-approval process. AMM argued that its complaint for declaratory judgment raised challenges only to the Commission's actions and that the Commission would be the sole party bound by any judgment in the case. According to AMM, the proposed grower intervenors would neither incur any legal obligation nor lose any legal rights as a result of the action. AMM posited that, in the event that it obtained the relief it sought, the Commission would necessarily revisit the licensing process and the proposed grower intervenors would still be able to compete for a license.

         As to the Patients, AMM contended that they had no more than a contingent or remote interest in this case. AMM pointed out that medical cannabis can be dispensed only by a qualifying physician to a qualifying patient. As to the Coalition for Patient Medicinal Access, AMM argued that the Coalition for Patient Medicinal Access did not have a sufficient interest to warrant intervention. AMM pointed out that the Coalition for Patient Medicinal Access was "formed for the purpose of advocating for patient rights and prompt access to medical cannabis, and advocating for, and advancing the interests of, the growers." (Brackets and internal quotation marks omitted). According to AMM, a desire to advocate is not an interest sufficient for intervention. In addition, AMM maintained that the Commission adequately represented all of the proposed intervenors' interests. In sum, AMM contended that the proposed intervenors failed to establish that intervention as of right or permissive intervention was warranted.

         On January 25, 2017, Holistic Industries filed a Motion to Intervene, contending that as a pre-approval awardee, it had a direct interest in the action and that its rights would be impaired or impeded if it were not permitted to intervene.

         On February 20, 2017, the Petitioners that had filed the December 30, 2016 motion to intervene filed a Line with four affidavits attached from owners or managing members of the Growers and one affidavit from a parent of the Patients. In the first affidavit, Michael G. Bronfein ("Bronfein"), the managing member of, and investor in, Curio Cultivation, averred that, since Curio Cultivation's application for a medical cannabis grower license was pre-approved, it has spent more than $7 million to prepare to become operational by the State's regulatory deadline. Specifically, Bronfein averred that Curio Cultivation has purchased and improved a building in Timonium, Maryland, and "obtained costly and highly specialized architectural and engineering services related to that building[.]" Curio Cultivation has hired nine employees, including ones who specialize in human resources, business development, operational management, accounting, finance, marketing, and sales. According to Bronfein, at least one employee used to work outside Maryland, and has bought a home in Maryland because of the employee's new job with Curio Cultivation. Bronfein also averred that Curio Cultivation has established a temporary office in Towson, Maryland, and has "paid substantial amounts for salaries and expended other funds to operate that office" in reliance on its pre-approval.

         In the second affidavit, Jake Van Wingerden ("Van Wingerden"), the owner and managing member of SunMed Growers, averred that it has signed a binding ten-year lease for a cultivation facility, and that the facility was currently under construction. Van Wingerden indicated that there is a statutory moratorium on additional grower licenses through June 1, 2018, and that the pre-approval is a "first to market" provision and is an important benefit. Van Wingerden averred that any delay in licensure would be prejudicial.

         In the third affidavit, Gail L. Rand ("Rand"), member and Chief Financial Officer of ForwardGro, averred that ForwardGro and its affiliate, in reliance on the pre-approval, have "spent several million dollars" to prepare to become operational within the regulatory timeframe. Specifically, according to Rand, ForwardGro and its affiliate are in the process of constructing a greenhouse and operations facility, which will include "energy efficient boilers, floor radiant heat, extensive irrigation, specialty lighting, and a substantial security system." Rand averred that ForwardGro has "obtained costly interests in real property, construction documents for local permitting, retained personnel, and taken other costly actions to prepare to cultivate medical cannabis pursuant to Maryland law." Rand, like Van Wingerden, stated that the pre-approval constituted a "first to market" provision and was an important benefit.

         In the fourth affidavit, one of the parents of the Patients averred that the Patients are minors who suffer from epilepsy and "have frequent seizures that are painful and frightening." According to the parent, "[a] treating physician has stated that use of medical cannabis will likely alleviate their symptoms."

         Hearing on Motions to Dismiss and Motion to Intervene

         On February 21, 2017, the circuit court conducted a hearing on the Commission's motion to dismiss and Petitioners' motion to dismiss, as well as the motions to intervene. The circuit court first addressed the motions to intervene. As to the timeliness of the motions to intervene, counsel for Petitioners observed that AMM had not contended that the motions to intervene were untimely filed. Petitioners' counsel argued that there was no dispute that the motions to intervene were timely filed. AMM's counsel disagreed that the motions to intervene were timely filed and the following exchange occurred:

[AMM'S COUNSEL]: Your Honor, there's a four part test. I don't need to go through the entire thing, you know what it is. One thing I do want to say is that we do not waive timeliness, Your Honor. We do not believe this was timely.
THE COURT: I didn't ask you to waive it, I just didn't want to hear any argument on it. But that's fine, I've reviewed it. Go ahead.
[AMM'S COUNSEL]: Thank you, Your Honor.

         Later, the following exchange occurred:

[PETITIONERS' COUNSEL]: [AMM's c]ounsel said they didn't waive timeliness. I'd suggest they did. Your Honor said you didn't hear argument on that and I won't argue unless Your Honor wishes.
THE COURT: I don't need to hear anything on timeliness.
[PETITIONERS' COUNSEL]: Thank you.

         After hearing argument, the circuit court ruled orally from the bench, reserving ruling on Holistic Industries's motion to intervene, and denying the December 30, 2016 motion to intervene.[11] The circuit court first addressed intervention as of right. The circuit court observed that case law establishes that the following four requirements for intervention as of right exist under Maryland Rule 2-214(a): (1) the motion to intervene was timely; (2) the person seeking intervention claims an interest relating to the property or transaction that is the subject of the action; (3) the person is so situated that the disposition of the action, as a practical matter, may impair or impede the person's ability to protect that interest; and (4) the person's interest is not adequately represented by existing parties to the suit. See Md.-Nat'l Capital Park & Planning Comm'n v. Town of Washington Grove, 408 Md. 37, 69-70, 968 A.2d 552, 571-72 (2009).

         The circuit court addressed the first requirement, timeliness, as follows: "As the Court noted during arguments, the Court does not need to assess the timeliness of the [motion to intervene]. Again, I would find that it was timely given the limited time since the filing of both suits."

         As to the second and third requirements, a claim of an interest and impairment of that interest, the circuit court concluded that Petitioners lacked an interest in the case. The circuit court found that the case stemmed from the implementation of the medical cannabis statute by the Commission and that the question was whether the statute had been applied in an unconstitutional manner. The circuit court ruled that Petitioners' alleged interest was "not applicable[, ]" stating:

[Petitioner]s believe that they should be allowed in as a matter of right, because if these two complainants[12]are allowed to go forward, the possible time and money loss, which is speculative, could [a]ffect their ability to proceed as growers or receive medical cannabis.
While this may be true, the first issue is to determine [] the transactions that are the subject of this action. This Court finds that the transactions in both cases stem from the applicable or implementation of the statute by the Commission[], and whether or not the statute has been applied or implemented in an unconstitutional, arbitrary, or capricious manner. [Petitioner]s claim an interest, but this Court finds that the alleged interest is not applicable here. One can always claim an interest in litigation if they stand to benefit from the implementation of legislation that allows parties to be involved in commerce regulated by the government. But that is not the true issue here in [this] case.
The issue at hand in the GTI case is whether or not the Commission, by allegedly removing GTI and MCP[13] from the initial list of [fifteen] growers to make it out of Stage I and replacing them on the list of Stage I awardees with two proposed growers who allegedly scored lower [than] those two entities acted in an arbitrary or capricious manner. If that is not the finding, then the process would continue. If the Court does make that finding, then theoretically the Court could order specific performance. If ordered, this could [a]ffect only two entities, Holistic[ Industries] and Shore Naturals, LLC, [14] not any of the proposed intervenors.
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This Court does understand that the statute was recently enacted and that it has not gone under significant scrutiny. There's no history of administrative and judicial rulings for the statute. There are allegations that the process was flawed at the inception and at the application. This Court does not know if it is true, but does note that [Petitioners'] concerns can only be address[ed] after a determination of the statute as applied and implemented by the Commission was not ...

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