Montgomery Circuit Court is proceeding with limited discovery in a lawsuit against the Alabama Medical Cannabis Commission.
AMCC attorney Mike Jackson told Judge James Anderson that he was prepared to fully refute discovery, but apparently out of deference to the court not to make that argument. He said he had made a choice.
Mr. Anderson limits the plaintiffs to six depositions of AMCC Director John McMillan and five commissioners. AMCC's lawyers sought to limit these depositions to four hours each, but Mr. Anderson accepted the federal standard of seven hours for subject release.
Much of Wednesday's hearing was spent with about a dozen lawyers arguing the AMCC's argument that certain questions should be off-limits because the commission has “deliberative privilege.” It was done.
Anderson ultimately said the deposition could proceed and did not preclude the plaintiff's attorney from asking specific questions, but that AMCC's attorney could claim privilege during the deposition. . These claims may be considered by Anderson on a case-by-case basis.
“That's the way it should be,” Alabama Always attorney Will Somerville said after Wednesday's hearing.
Numerous lawyers and committees representing various companies did their best to persuade Mr. Anderson whether the privilege actually applied to governing bodies like AMCC.
The plaintiffs cited Alabama's Open Meetings Act, which specifically states that the “deliberative process” is open to the public.
AMCC's lawyers argued that although the meeting was public record, the mental process by which each committee member decided to rate a company went too far.
Plaintiffs need to be able to ask commissioners for reasons for decisions to determine whether the decisions are arbitrary and capricious and violate regulations under the Alabama Administrative Procedures Act. insisted.
They told Anderson they could prove that the rankings were ultimately arbitrary.
Bragg Khanna attorney Ben Epsy argued that one committee member's ranking lowered the firm's average score to the point where it ranked seventh on the list.
The commission only reached the sixth applicant on the list before awarding the legal limit of five licenses, leaving Bragg Khanna with no chance of getting a license.
Espy noted that Harvey had ranked Sustainable Alabama 29th, but when it came time to vote, they voted in favor of granting the license to the company.
“If you say I'm 29 years old, that means I'm in the bottom five,” Espy said. “Unless the rankings are completely arbitrary, how can you vote in favor of someone who's in the bottom five? And that's just the way it is.”
But Jackson told Anderson the rankings were only there to determine the order in which licenses would be considered.
“They keep harping on it and trying to convince the honorable people that rankings are the basis for awards,” Jackson said.
When Espy explained how Harvey's rating lowered Bragg Can's score, Jackson remarked, “So what?” The plaintiffs told Anderson that this statement amounted to an admission that the ranking process was arbitrary.
AMCC also maintained a series of arguments that now is an inappropriate time to grant discovery because the process provides an opportunity for relief through an investigative hearing.
However, the plaintiffs argue that discovery is required before the investigative hearing, otherwise there is nothing to rebut before administrative law determines that one applicant is more deserving of a license than another. claims that it cannot be done.
It's unclear exactly when the depositions will be completed, and the plaintiffs are seeking documents presented before the commissioners before the depositions take place, but Anderson said the next hearing will be on Feb. 28. He said he intends to proceed with the scheduled hearing.
