Jane and John Doe et al. v. Alternative Medicine Maryland, LLC, et al., No. 98, September
Term, 2016
MARYLAND RULE 2-214(a)(2) – INTERVENTION AS OF RIGHT – MD. CODE
ANN., CTS. & JUD. PROC. (1973, 2013 REPL. VOL.) § 3-405(a)(1) – MARYLAND
RULE 2-211(a) – MARYLAND RULE 2-214(b) – PERMISSIVE INTERVENTION
– REMAND – Court of Appeals held that petitioner growers, who had been granted pre-
approvals for medical cannabis grower licenses, and in one instance a license, by Natalie
M. LaPrade Medical Cannabis Commission, were entitled to intervention as of right under
Maryland Rule 2-214(a)(2) and, as such, that trial court erred in denying intervention as of
right. Court of Appeals determined that petitioner growers were entitled to be made a party
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). The trial court also abused its discretion in
denying permissive intervention under Maryland Rule 2-214(b), as to petitioner growers.
Court of Appeals concluded that trial court did not err or abuse its discretion in denying
intervention as of right or permissive intervention as to two patients and two trade
associations, and that patients and trade associations were not entitled to be made a party
under CJ § 3-405(a)(1). Court of Appeals remanded case to trial court for further
proceedings, including determination of issues raised by petitioner growers in motion to
dismiss that had been denied as moot, namely, applicability of doctrine of laches, whether
action is action for administrative mandamus, i.e., petition for judicial review, which was
not timely filed, and if not dismissed, whether complaint for declaratory judgment should
be considered petition for judicial review subject to on-the-record review under substantial
evidence test.
Circuit Court for Baltimore City
Case No. 24-C-16-005801
Argued: July 27, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 98
September Term, 2016
______________________________________
JANE AND JOHN DOE ET AL.
v.
ALTERNATIVE MEDICINE MARYLAND,
LLC ET AL.
______________________________________
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Wilner, Alan M. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: August 25, 2017
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
1
As of July 1, 2017, the Department of Health and Mental Hygiene has been
renamed the Maryland Department of Health. See 2017 Md. Laws 1583 (Vol. II, Ch. 214,
S.B. 82).
2
Although the Commission and the Department are separate Respondents and have
separate counsel, they have acted jointly throughout this case. Accordingly, we will refer
to them together as “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
-2-
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
3
Md. Code Ann., State Fin. & Proc. (1985, 2015 Repl. Vol.) (“SF”) § 14-301(f)
states:
“Minority business enterprise” means any legal entity, except a joint venture,
that is: (1) organized to engage in commercial transactions; (2) at least 51%
owned and controlled by 1 or more individuals who are socially and
economically disadvantaged; and (3) managed by, and the daily business
operations of which are controlled by, one or more of the socially and
economically disadvantaged individuals who own it.
(Paragraph breaks omitted). The term “socially and economically disadvantaged
individuals” includes, among others, individuals who are women, regardless of race or
ethnicity, and/or African-American. See SF § 14-301(k)(1)(i).
-3-
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 letter4 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
4
The letter did not constitute an opinion of the Attorney General. The Attorney
General’s website explains:
A formal Opinion of the Attorney General should be distinguished from a
letter of legal advice written by an attorney in this office. Because the Office
of the Attorney General is the legal adviser to most State agencies, its lawyers
write many letters and memoranda each day to State officials analyzing legal
issues. Only a letter that has undergone [a] review process . . . and has been
adopted by the Attorney General is an Opinion of the Attorney General.
“Frequently Asked Questions About Opinions of the Attorney General,” Office of
the Attorney General of Maryland, http://www.marylandattorneygeneral.gov/
Pages/Opinions/faq.aspx [https://perma.cc/ZBY4-GA5V].
-4-
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,
5
Curio Wellness, LLC was originally listed as a party to this appeal instead of Curio
Cultivation. On July 11, 2017, Curio Wellness, LLC filed an Unopposed Motion to Correct
Misnomer, stating that Curio Cultivation was the entity that had received pre-approval for
a medical cannabis grower license, and that had participated in proceedings in the circuit
court. In an Order issued on July 10, 2017, this Court replaced Curio Wellness, LLC with
Curio Cultivation as a party to this appeal.
-5-
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,
6
The Coalition for Patient Medicinal Access describes its purpose as “advocating
for patient rights and prompt access to medical cannabis, and advocating for, and advancing
the interests of” Curio Cultivation, Doctor’s Orders, ForwardGro, and SunMed Growers.
-6-
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
-7-
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
-8-
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.
-9-
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).”
7
The provision was originally codified as Md. Code Ann., Health Gen. (2009 Repl.
Vol., 2014 Supp.) § 13-3309(a)(9)(i)1. See 2014 Md. Laws 1504, 1506, 1491 (Vol. II, Ch.
240, H.B. 881). In 2015, the General Assembly recodified the provision without
substantive amendment as Md. Code Ann., Health Gen. (2015 Repl. Vol.) § 13-
3306(a)(9)(i)1. See 2015 Md. Laws 1177, 1163 (Vol. II, Ch. 251, H.B. 490). For clarity,
we refer to the provision’s current version.
- 10 -
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
- 11 -
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
- 12 -
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
- 13 -
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
8
See Footnote 3 above.
- 14 -
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.
9
In its brief, the Commission contends that AMM “did not rank in the top 60
applicants.” The Commission’s contention is based upon an occurrence during the
deposition testimony of Harry “Buddy” Robshaw, III, a member of the Commission, in
which AMM’s counsel sought to introduce a list of sixty applicants for a medical cannabis
grower license apparently identified by county; according to the Commission’s counsel,
the list did not reflect AMM’s position. In its brief, AMM contends that its “application
ranking, and the reasons for the ranking, if AMM’s application was, in fact, even ranked,
are unknown to AMM.”
- 15 -
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
- 16 -
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.
10
The basis for the requests to specially assign and consolidate this case is as
follows. In GTI Md., LLC, et al. v. Natalie M. LaPrade Md. Med. Cannabis Comm’n, et
al., No. 24-C-16-005134 (Balt. City Cir. Ct.), GTI Maryland, Inc. and Maryland
Cultivation and Processing—two businesses whose applications for medical cannabis
grower licenses were not pre-approved—sued the Commission, contending that the
Commission should not have considered geographic diversity in pre-approving
applications for medical cannabis grower licenses. The circuit court’s administrative judge
specially assigned GTI to another judge of the circuit court. The Motion to Specially
Assign, Consolidate, and Dismiss This Action was filed in both this case and GTI, and
included requests that this case be specially assigned to the same circuit court judge and
consolidated with GTI.
In an order issued on February 7, 2017, the circuit court’s administrative judge
found that “assignment of this case [and GTI] to a single judge will promote the expeditious
resolution of this case[.]” Accordingly, the circuit court’s administrative judge specially
assigned this case to the circuit court judge who had been specially assigned to GTI. In an
order issued on February 21, 2017, the circuit court denied the motion to consolidate this
case and GTI.
- 17 -
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
- 18 -
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.
- 19 -
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.
- 20 -
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.
- 21 -
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
11
After denying the December 30, 2016 motion to intervene, before the conclusion
of the hearing, the circuit court also denied Holistic Industries’s motion to intervene, stating
that the motion was denied for the same reasons that the December 30, 2016 motion to
intervene was denied.
- 22 -
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.
***
This Court does understand that the statute was recently enacted and
that it has not gone under significant scrutiny. There’s no history of
12
The circuit court was referring to the complainant in this case and the complainant
in the separate case of GTI, which is discussed above in Footnote 10.
13
“GTI” stands for “Green Thumb Industries.” “MCP” stands for “Maryland
Cultivation and Processing.” Both GTI and MCP are parties to the separate case of GTI,
which is discussed above in Footnote 10. Neither GTI nor MCP is a party to this appeal.
14
Shore Naturals, LLC applied for, and received a pre-approval for, a medical
cannabis grower license. Shore Naturals, LLC is not a party to this appeal or the separate
case of GTI.
- 23 -
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 arbitrary, capricious, or
unconstitutional. Those issues have to do with the statute and not the
tangential issues requested.
The Court therefore does not find that [Petitioner]s have sufficient
interest that are connected to the actions involved in each case. And that’s
whether the person is so situated that the disposition of the action as a
practical matter may impair or impede that person’s ability to protect that
interest. Once again, this Court has already determined that the claim of
interest in this case for [Petitioners] is misplaced given the allegations
presented by the plaintiffs in each case. These are specific issues concerning
actions of the subcommittee and the committee in implementing the statute.
And once again, arguments that the Commission is uniquely situated to
respond to, not the growers, the potential users of the medical cannabis
grown.
The Court understand[s] that [Petitioner]s have a general interest in
the outcome of the case. The growers want nothing to stand in the way of
the process which would allow them to get a license, the patients certainly
want access to medical cannabis as soon as possible. Those wishes do not
rise to the level of a right to intervene.
Addressing the fourth requirement, inadequate representation by the parties, the
circuit court concluded that the Commission adequately represented Petitioners’ interests,
stating:
[T]he Court may be called upon to determine whether or not the process used
by the Commission in reviewing and granting Stage I approval to medical
cannabis grower license applicants was done in a way that was arbitrary,
capricious or potentially unconstitutional. The Commission has a true
interest in making sure that the Court does not make that finding. And so the
arguments of the Office of the Attorney General is uniquely suited to advance
the appropriate arguments. If the Court does not find the actions
unconstitutional, arbitrary, or capricious, then the process would continue.
***
This Court is satisfied that the Commission, represented by the Office
of the Attorney General and not [Petitioner]s before the Court today, is the
- 24 -
appropriate defendant to represent the issue of whether or not the statute as
implemented was done in an arbitrary, capricious, or unconstitutional manner
in part as alleged by the replacement of two growers in the GTI matter[, or
in] total, as alleged by the overall application of the statute, in the AMM
matter. So far this Court has seen vigorous representation by the Attorney
General on behalf of the Commission. Simply because a litigation may not
be going in the ma[nn]er[] that a private entity thinks it should, whether the
arguments [that] are made are different, there’s no basis to allow
intervention.
The circuit court denied permissive intervention, stating:
The Court does not believe that it would be either appropriate or
necessary to allow the proposed intervenors in either case, pursuant to the
permissive right to intervention under [Maryland] Rule 2-214(b). The Court
has considered whether intervention would unduly delay the adjudication of
either claim and it determines that it would. Interestingly enough,
[Petitioner]s seemingly have an interest in speeding up the process, because
they want to begin growing as soon as possible, and want nothing to stand in
the way of the next phase of licensing.
While understanding the desire for their speed, filing various motions
does add time to these proceedings. [AMM has] filed [its] claims and as
noted above, the issue here is whether or not the actions of the [Commission]
were arbitrary, capricious, or potentially unconstitutional. The Commission
is ready, willing, and able to defend its actions. Allowing intervenors at this
stage does not assist in that determination.
After denying the motion to intervene, the circuit court denied Petitioners’ motion
to dismiss as moot because Petitioners were nonparties. The circuit court stated: “And
those same former proposed intervenors filed a Motion to Dismiss. And again for the same
reasons the Court will find the Motion to Dismiss filed in AMM . . . by the proposed
intervenors is moot now that they are not parties to this action.”
In an order issued on February 21, 2017, the circuit court denied the Commission’s
Motion to Dismiss, or, in the Alternative, for Summary Judgment. In another order issued
on February 21, 2017, the circuit court denied Holistic Industries’s motion to intervene. In
- 25 -
a third order issued on February 21, 2017, the circuit court denied the December 30, 2016
motion to intervene.
Remaining Proceedings in the Circuit Court
On March 10, 2017, the Commission filed an answer, raising affirmative defenses,
including that the complaint failed to state a claim upon which relief could be granted, that
the complaint is barred by the doctrine of laches and the statute of limitations, and that the
“claims are barred to the extent that the allegations contained therein are not properly
brought before the Court in any declaratory judgment action.” On March 15, 2017,
Petitioners filed their first Notice of Appeal, which stated that it “relate[d] to the February
21, 2017[] Order(s).” On March 16, 2017, Holistic Industries filed a Notice of Appeal of
the circuit court’s denial of its motion to intervene. On March 22, 2017, Petitioners filed
an Amended Notice of Appeal, which stated that it “relate[d] to each appealable decision
and order, including the February 21, 2017, order denying the motion to intervene[.]”
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 to prevent 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 17, 2017, the Commission filed an opposition to the
motion, arguing, among other things, that AMM impermissibly delayed filing the motion,
AMM had no likelihood of success with respect to the merits of the case, and AMM’s
- 26 -
request contravened the overwhelming public interest to provide medical cannabis to
patients in Maryland.
On May 25, 2017, the circuit court conducted a hearing, issued a temporary
restraining order with a $100 bond, and scheduled a hearing on AMM’s request for a
preliminary injunction for June 2, 2017. At the hearing on May 25th, the circuit court
found that AMM had met the burden of showing that it would incur immediate substantial
and irreparable harm unless a temporary restraining order were granted before a hearing
on the request for a preliminary injunction. The circuit court determined that counsel for
ForwardGro would be invited to argue at the hearing on the preliminary injunction because
the Commission had issued a medical cannabis grower license to ForwardGro, and there
was a “potential that the rights of [ForwardGro] will be affected.” The circuit court stated
that, accordingly, ForwardGro’s counsel would be permitted to argue solely on the issue
of whether ForwardGro’s medical cannabis grower license should be suspended pending
resolution of the case.15
In an order issued on May 25, 2017, the circuit court granted a temporary restraining
order, enjoining the Commission “from authorizing, granting[,] and/or issuing any final
15
Subsequent to oral argument, as of August 14, 2017, it was reported that the
following eight additional companies were awarded medical cannabis grower licenses:
Green Leaf Medical; Harvest of Maryland, LLC; HMS Health; Temescal Wellness; Curio
Cultivation; Holistic Industries; Maryland Compassionate Care and Wellness; and Blair
Wellness, LLC. See Bryan P. Sears, Time may be running out for some would-be Md.
cannabis companies, The Daily Record (Aug. 14, 2017), http://thedailyrecord.com/2017/
08/14/md-medical-cannabis-commission-awards-nine-licenses/ [https://perma.cc/Y3SU-
XSXN]. Of those nine, Curio Cultivation, Green Leaf Medical, Holistic Industries, and
Temescal Wellness are the Growers who are seeking intervention in this case.
- 27 -
licenses to cultivate and grow medical cannabis in Maryland prior to a full adversarial
hearing on the propriety of granting a Preliminary Injunction[.]” The order stated that the
temporary restraining order would expire on June 4, 2017.
In an e-mail dated May 25, 2017, the circuit court judge’s law clerk advised the
Commission’s counsel, AMM’s counsel, and counsel for all Petitioners other than Holistic
Industries and Temescal Wellness that the circuit court had invited ForwardGro’s counsel
to the June 2, 2017 hearing for the sole purpose of arguing as to whether ForwardGro’s
license should be suspended pending resolution of the case. At the time, ForwardGro did
not have its own counsel, and instead was represented by the same counsel who represented
all Petitioners other than Holistic Industries and Temescal Wellness. Within days of the
law clerk’s e-mail, ForwardGro obtained its own counsel.
On May 30, 2017, ForwardGro’s counsel filed a Notice of Appearance of New
Counsel, stating that it considered the May 25, 2017 e-mail as a reconsideration of the
circuit court’s prior denial of ForwardGro’s motion to intervene and that ForwardGro
would “govern itself as a party going forward in th[e] matter, unless the Court order[ed]
otherwise.”16 (Footnote omitted). ForwardGro’s counsel asserted that, because it had been
granted a medical cannabis grower license, it had “a concrete, legally protected interest” in
the case.
On the same day, certain Petitioners—Curio Cultivation, Doctor’s Orders, Green
Leaf Medical, Kind Therapeutics, SunMed Growers, the Trade Association Petitioners, and
16
On May 31, 2017, counsel for all Petitioners other than Holistic Industries and
Temescal Wellness filed a Notice of Withdrawal of Appearance as ForwardGro’s counsel.
- 28 -
the Patients—filed an “Emergency Motion to Dissolve or Modify [the Temporary
Restraining Order]; for Renewal of the Motion to Intervene; to Intervene in This Action;
to Consolidate; for Stay Pending Appeal; and in Opposition to Motion for Preliminary
Injunction,” as well as a separate motion to shorten time to respond to the emergency
motion. On May 31, 2017, Temescal Wellness filed a motion in which it expressly joined
the emergency motion. On May 31, 2017, Holistic Industries filed a renewed motion to
intervene.
In an order issued on May 31, 2017, the circuit court denied the emergency motion
to dissolve. In a separate order issued on May 31, 2017, the circuit court denied
ForwardGro’s request to “govern itself as a party.” The circuit court also indicated that the
May 25, 2017 e-mail did not serve as reconsideration of the circuit court’s denial of the
motion to intervene. The circuit court ordered that ForwardGro would have twenty-five
minutes of time at the June 2, 2017 hearing to address the issue of whether its medical
cannabis grower license should be suspended if a preliminary injunction were to be
granted.
On June 1, 2017, Petitioners noted an appeal of the circuit court’s May 31, 2017
order.
Petition for a Writ of Certiorari and Appellate Proceedings
On June 2, 2017, while this case was pending in the Court of Special Appeals, all
Petitioners other than ForwardGro, Holistic Industries, and Temescal Wellness filed an
“Emergency Bypass Petition for Writ of Certiorari and Motion to Stay Circuit Court
Action,” raising the following two issues:
- 29 -
1. Are petitioners entitled to participate in a lawsuit, including a preliminary
injunction hearing, where the Plaintiff has expressly asked to invalidate their
award, and any injunction would destroy their businesses, force them to lay
off employees, cause substantial economic losses, and deprive some of them
of needed cannabis therapy?
2. Should the circuit court action be stayed pending resolution of the issue of
indispensable parties, given that the plaintiff waited months or years to seek
a preliminary injunction and has no likelihood of success on the merits?
On the same day, Petitioners filed an “Emergency Motion for Stay of Proceedings in the
Circuit Court for Baltimore City and/or Injunction.” On that same day, this Court granted
the emergency motion for stay, and ordered that the hearing on the preliminary injunction
in the circuit court was stayed, pending further Order of this Court.17 Finally, on the same
day, AMM filed a “Motion to Maintain Status Quo Pending Further Order of This
Honorable Court and Request for Hearing.” In the motion to maintain, AMM requested
that this Court issue an order indicating that the temporary restraining order that the circuit
court had issued on May 25, 2017 would remain in force until further order of this Court.18
On June 5, 2017, ForwardGro, Holistic Industries, and Temescal Wellness
separately filed Lines joining the petition for a writ of certiorari. In an order issued on
June 9, 2017, this Court granted the petition for a writ of certiorari, denied the motion to
maintain status quo, and stayed all proceedings in the circuit court pertaining to the case,
pending further Order of this Court.19 In the order, this Court observed that the temporary
17
Circuit court docket entries dated June 2, 2017, as to an “Open Court Proceeding,”
state: “Court of Appeals stayed the case”; “[o]rder to be filed.”
18
The temporary restraining order expired by operation of law on June 4, 2017.
19
In its brief, AMM states that the second question presented in the petition for a
writ of certiorari, which pertained to a stay of proceedings in the circuit court, is now moot.
- 30 -
restraining order issued by the circuit court on May 25, 2017, had expired.20
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 the 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.
We agree, and do not address the second question in light of the circumstance that, in the
order granting certiorari, this Court stayed the proceedings in the circuit court pending
further Order of this Court and that on July 28, 2017, the per curiam order issued by this
Court lifted that stay.
20
On July 11, 2017, all Petitioners other than ForwardGro, Holistic Industries, and
Temescal Wellness filed a Motion to Correct Record, stating that the record did not include
the transcript of the May 25, 2017 hearing on the motion for a temporary restraining order
in this case, as well as the transcript of the February 21, 2017 hearing in GTI Md., LLC, et
al. v. Natalie M. LaPrade Md. Med. Cannabis Comm’n, et al., No. 24-C-16-005134 (Balt.
City Cir. Ct.). All Petitioners other than ForwardGro, Holistic Industries, and Temescal
Wellness requested that the latter transcript be added to the record because, at the February
21, 2017 hearing in this case, counsel for all Petitioners other than ForwardGro, Holistic
Industries, and Temescal Wellness expressly incorporated the arguments made at the
February 21, 2017 hearing in GTI. All parties to this case, other than AMM, consented to
the motion to correct record.
- 31 -
DISCUSSION
I. Intervention
The Parties’ Contentions
Petitioners21 contend that the circuit court erred in denying the motion to intervene
and the renewed motion to intervene because they have vested and/or protectable interests
that are not adequately protected by any other party in the action. According to Petitioners,
“[a] vested right is one that is an immediate right of present enjoyment or a present fixed
right of future enjoyment[,]” and the Growers are awardees who were compelled by
regulation to spend millions of dollars and the Patients are the people for whom the medical
cannabis statute was passed, and thus have an interest in the action. (Citation and internal
quotation marks omitted). Petitioners argue that, even if their interests are not deemed
vested, they have interests “relating to” the transaction that is the subject of the case.
Petitioners assert that under relevant case law, the rule on intervention requires only that
an individual claim an interest relating to the property that is the subject of a lawsuit.
Petitioners point out that they have made large investments as a result of the pre-approvals
and, as such, they have met the interest requirement for intervention as of right.
Petitioners contend that the Growers’ rights vested on August 15, 2016, upon
21
Each of ForwardGro, Holistic Industries, and Temescal Wellness has its own
counsel, while all nine other Petitioners share the same counsel. Accordingly, Petitioners
have filed a total of four briefs: one from ForwardGro, one from Holistic Industries, one
from Temescal Wellness, and one from the other nine Petitioners. In their individual briefs,
ForwardGro, Holistic Industries, and Temescal Wellness expressly join the other nine
Petitioners’ brief, and state additional facts and/or make additional arguments that are
specific to them.
- 32 -
announcement of their pre-approvals for medical cannabis grower licenses. Petitioners
argue that the Growers essentially entered into a contractual agreement with the State,
which obligated them to become fully operational and the State to inspect their facilities
and award medical cannabis grower licenses if they met the regulatory requirements.
According to Petitioners, under the circumstances above, the Commission has no discretion
to deny the Growers a medical cannabis grower license, provided the Growers pass all
inspections. Petitioners maintain that the relief that AMM seeks will impair the Growers’
interests, as they have invested capital in buying property and equipment, acquiring
permits, constructing buildings, and hiring employees.
Petitioners contend that the Commission does not adequately represent the
Growers’ interests in their medical cannabis grower licenses and business operation
investments because the Commission’s interest is in administering a public health program
that will make medical cannabis available to qualifying patients. Petitioners point out that
the Commission has acknowledged that the Growers who were recipients of pre-approvals
for medical cannabis grower licenses are indispensable parties and that the Commission
does not represent the Growers’ interests. Petitioners maintain that the relief that AMM
seeks would impair or impede the Patients’ interest in safeguarding their health by using
medical cannabis to alleviate their pain and suffering, an interest which the General
Assembly sought to protect.
Petitioners assert that in addition to entitlement to intervention as of right, they were
also entitled to permissive intervention because they have claims with common issues of
law and fact with those in this case. Petitioners contend that, to the extent that AMM has
- 33 -
filed a claim for declaratory judgment, both CJ § 3-405(a)(1) and Maryland Rule 2-211(b)
confer upon them the right to intervene as indispensable parties as a matter of law.22
The Commission agrees that the Growers have a right to intervene. Specifically,
the Commission contends that the Growers have a right to intervene pursuant to Maryland
Rule 2-214(a). According to the Commission, the Growers have a right to intervene as a
matter of law because AMM brought an action for declaratory judgment and both Maryland
Rule 2-211(a) and CJ § 3-405(a) require that the Growers be made parties to the action.
Additionally, the Commission argues that the Growers are entitled to intervention as of
right because the Growers have financial and other interests that would be adversely
affected by the relief that AMM seeks. The Commission argues that it cannot protect the
Growers’ interests because it does not share those interests, and because it and the Growers
have different objectives in this case. The Commission points out that, although it has an
interest in defending the validity of its regulations and processes, it does not share an
interest in protecting either the financial interests or rights of the Growers. The
Commission asserts that, for example, the Growers have argued that they have property
rights that are at stake in this case, while the Commission has not addressed this contention.
Finally, the Commission points out that, although it has raised the doctrine of laches as an
affirmative defense, the Growers are uniquely qualified to establish prejudice to their
interests as a result of AMM’s delay.23
22
Petitioners do not specifically address the Trade Association Petitioners’ interests.
23
The Commission does not address the Patients’ interests or the Trade Association
Petitioners’ interests. Nor does the Commission address Petitioners’ contention that the
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AMM responds that Petitioners are not entitled to intervention as of right because
they do not have direct, significant, legally protectable interests that this case’s outcome
would impair or impede. AMM contends that the Growers are not automatically entitled
to medical cannabis licenses after receiving pre-approvals because the Growers have no
proven track record and are entering a newly regulated market. AMM argues that the
Growers do not have a legally protectable interest and are not entitled to a risk-free
investment. AMM maintains that there is no guarantee that, if it is successful in this case,
the Commission will rescind the Growers’ pre-approvals or that the Commission would
enforce the one-year regulatory time limit regardless of the outcome of the case.
AMM contends that the Patients have only a contingent and remote interest in
receiving medical cannabis, and that it is not enough for an individual seeking intervention
to base his or her claim on a concern that he or she may be adversely affected in the future,
namely, that a qualifying physician would in the future find the Patients to be qualifying
patients and that medical cannabis would be beneficial to them. AMM argues that the
Trade Association Petitioners have only a generalized interest in medical cannabis and
have not demonstrated that this case will cause any special damage different than that to
the general public.
AMM also asserts that Petitioners are not entitled to intervention as of right because
the Commission adequately represents Petitioners’ interests. According to AMM, this
circuit court abused its discretion in not allowing permissive intervention. At oral
argument, counsel for the Commission advised that the Commission takes no position with
respect to the Patients’ and the Trade Association Petitioners’ request to intervene.
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Court has developed an interest-analysis test that analyzes whether the proposed
intervenor’s interest is similar or identical to that of an existing party. AMM contends that
the Commission and Petitioners have the same interest that the Commission is best suited
to represent. AMM argues that Petitioners cannot demonstrate a compelling reason to
intervene, because the defenses that they have raised are on all fours with the ones that the
Commission has raised. AMM asserts that the Commission’s representation of Petitioners’
interests is not inadequate simply because the Commission and Petitioners are different
types of organizations. AMM acknowledges that, “[i]n the abstract, there are multiple
different interests held by the Growers and the Commission[,]” but that “[t]hat fact is not
dispositive.”
AMM contends that, if the circuit court orders a remedy that directly impacts the
Growers, the Growers can move to intervene on appeal. AMM argues that the Maryland
Declaratory Judgments Act, CJ § 3-405, does not provide a greater right to intervention
than that set forth under Maryland Rule 2-214(a)(2). Essentially, AMM asserts that CJ §
3-405 is subject to the same analysis that has been established in case law for Maryland
Rule 2-214(a)(2). Finally, AMM contends that the circuit court did not abuse its discretion
in denying permissive intervention, because such intervention would have unduly delayed
this case and prejudiced AMM.
The Standard of Review
An appellate court reviews for abuse of discretion a trial court’s denial of a motion
to intervene on the ground of untimeliness, where the trial court articulates why the motion
was untimely. See Washington Grove, 408 Md. at 65, 968 A.2d at 568. In all other
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instances, an appellate court reviews without deference a trial court’s conclusion that a
party may not intervene as of right. See id. at 65, 968 A.2d at 568-69. An appellate court
reviews for abuse of discretion a trial court’s decision to deny permissive intervention. See
id. at 65, 968 A.2d at 569.
Intervention as of Right
Maryland Rule 2-214(a) governs intervention as of right as follows:
Upon timely motion, a person shall be permitted to intervene in an action:
(1) when the person has an unconditional right to intervene as a matter of
law; or (2) when the person claims an interest relating to the property or
transaction that is the subject of the action, and the person is so situated that
the disposition of the action may as a practical matter impair or impede the
ability to protect that interest unless it is adequately represented by existing
parties.
In Washington Grove, 408 Md. at 69-70, 968 A.2d at 571-72, this Court explained
that Maryland Rule 2-214(a)(2) contains four requirements for intervention as of right,
stating:
M[aryland] Rule 2-214[(a)(2)] contains four requirements a person must
satisfy in order to intervene as of right: 1) the [motion to intervene] was
timely; 2) the person 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 that person’s ability
to protect that interest; and 4) the person’s interest is not adequately
represented by existing parties to the suit.
(Citations omitted).
As to the first requirement, timeliness, whether a motion to intervene is timely
depends on “the purpose for which intervention is sought, the probability of prejudice to
the parties already in the case, the extent to which the proceedings have progressed when
the movant [mov]es to intervene, and the reason or reasons for the delay in seeking
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intervention.” Id. at 70, 968 A.2d at 572 (citation omitted). This Court observed that
“[t]imeliness depends upon the individual circumstances in each case, and . . . consideration
of those circumstances rests initially with the sound discretion of the trial court, which,
unless abused, will not be disturbed on appellate review.” Id. at 70, 968 A.2d at 572
(citation omitted).
To satisfy the second and third requirements—a claim of an interest and impairment
or impediment to the ability to protect that interest—the person seeking to intervene must
show that it has “an interest for the protection of which intervention is essential and which
is not otherwise protected.” Id. at 75, 968 A.2d at 574-75 (citation and internal quotation
marks omitted). In other words, the person seeking to intervene must show that
intervention is essential to protect the person’s interest. An interest satisfies the second
and third requirements where the person seeking to intervene may be bound by a judgment
in the case. See id. at 75, 968 A.2d at 575. The person seeking to intervene need not prove,
however, that the case’s disposition “would be res judicata as to” the person; instead, the
person “need merely show that he [or she] might be disadvantaged by the” case’s
disposition. Bd. of Trs. of Emps.’ Ret. Sys. of City of Balt. v. Mayor & City Council of
Balt. City, 317 Md. 72, 89 n.19, 562 A.2d 720, 728 n.19 (1989). The standard that this
Court has adopted for determining an impairment or impediment to the ability to protect
an interest is whether “the disposition of the action would at least potentially impair the
[person’s] ability to protect [the person’s] interest.” Washington Grove, 408 Md. at 99,
968 A.2d at 590 (citation and internal quotation marks omitted). That said, “[i]t is not
enough for a person seeking intervention to base [his or her] motion on concern that some
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future action in the proceedings may affect [the person’s] interests adversely.” Id. at 75,
968 A.2d at 575. Indeed, “[s]eeking intervention on such a basis is merely speculative and
affords no present basis upon which to become a party to the proceedings.” Id. at 75, 968
A.2d at 575 (citation and internal quotation marks omitted).
The interest of the person seeking to intervene “must be such that the [person] has
standing to be a party”—i.e., “the outcome of the lawsuit might cause the person to suffer
some kind of special damage differing in character and kind from that suffered by the
general public.” Duckworth v. Deane, 393 Md. 524, 540, 903 A.2d 883, 892 (2006)
(brackets, citation, ellipsis, and internal quotation marks omitted). Maryland “Rule 2-
214(a)(2)’s requirement of an ‘interest’ in the ‘transaction that is the subject of the action,’
which may be affected by ‘the disposition of the action,’ means something more than an
applicant’s generalized interest in participating in the formulation of a constitutional or
legal standard, to which the applicant for intervention may be subjected[.]” Id. at 539, 903
A.2d at 892 (citation, brackets, and some internal quotation marks omitted).
The fourth requirement, inadequate representation by the parties, necessitates “a
comparison of the interest asserted by the [person seeking to intervene] with that of each
existing party.” Washington Grove, 408 Md. at 102, 968 A.2d at 591 (citation and internal
quotation marks omitted). “The burden of showing that existing representation may be
inadequate is a minimal one.” Id. at 102, 968 A.2d at 591 (citation omitted). The person
seeking to intervene need not show that existing representation is, in fact, inadequate, or
that the person’s interests are adverse to existing representation; “[i]t is sufficient that the
representation may be inadequate.” Id. at 102, 968 A.2d at 591 (citation and internal
- 39 -
quotation marks omitted).
This Court has “adopted the ‘interest-analysis’ test for determining whether the lack
of adequate representation requirement has been met.” Id. at 102, 968 A.2d at 591 (citation
omitted). We have explained the “interest-analysis” test as follows:
The cascading test to be applied is: 1) if the proposed intervenor’s interest is
not represented or advocated to any degree by an existing party, or if the
existing parties all have interests which are adverse to those of the proposed
intervenor, the intervenor should be permitted to intervene; 2) if the proposed
intervenor’s interest is similar, but not identical, to that of an existing party,
a discriminating judgment is required on the circumstances of the particular
case, but the proposed intervenor ordinarily should be allowed to intervene
unless it is clear that the party will provide adequate representation for the
absentee; 3) if the interest of an existing party and the proposed intervenor
are identical, or if an existing party is charged by law with representing the
proposed intervenor’s interest, a compelling showing should be required to
demonstrate why this representation is not adequate.
Id. at 102-03, 968 A.2d at 591 (citation, brackets, and internal quotation marks omitted).
Under the interest-analysis test, in relevant part, the person seeking to intervene always
satisfies the requirement of inadequate representation where the person’s interest “is not
represented or advocated to any degree by an existing party[.]” Id. at 102-03, 968 A.2d at
592 (citation omitted). Notably, the person seeking to intervene generally satisfies the
requirement of inadequate representation where the person’s interest is similar to that of an
existing party, but where it is unclear that the party will adequately represent the person’s
interest. See id. at 103, 968 A.2d at 592 (citation omitted). On the other hand, the person
seeking to intervene must make “a compelling showing” to satisfy the requirement of
inadequate representation where the person’s interest is identical to a party’s, or where a
party is legally required to represent the person’s interest. Id. at 103, 968 A.2d at 592
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(citation omitted).
Permissive Intervention
Maryland Rule 2-214(b) governs permissive intervention as follows:
(1) Generally. Upon timely motion a person may be permitted to intervene
in an action when the person’s claim or defense has a question of law or fact
in common with the action.
***
(3) Considerations. In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties.[24]
In the Fourth Edition of the Maryland Rules Commentary, Judge Paul V. Niemeyer,
Linda M. Schuett, and Joyce E. Smithey, address permissive intervention under Maryland
Rule 2-214(b) as follows:
The underlying ground of [permissive intervention] is to promote judicial
economy in the litigation process. More practical considerations, however,
often play a role. The intervenor may fear, for example, that in his or her
absence the court will rule the “wrong” way on an issue that the intervening
party may have to litigate later if intervention is not granted.
Maryland Rules Commentary (4th ed. 2014), at 199.
Declaratory Judgment
CJ § 3-405(a), part of the Maryland Uniform Declaratory Judgments Act, provides:
(1) If declaratory relief is sought, a person who has or claims any interest
which would be affected by the declaration, shall be made a party.
(2) Except in a class action, the declaration may not prejudice the rights of
any person not a party to the proceeding.
24
Maryland Rule 2-214(b)(2) governs permissive intervention by governmental
entities, and thus is not applicable here.
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Analysis
Here, we conclude that the Growers were entitled to intervention as of right under
Maryland Rule 2-214(a)(2) and that the circuit court erred in denying the Growers’ motion
to intervene; and, the Growers were entitled to be made a party pursuant to CJ § 3-405(a)(1)
and to joinder under Maryland Rule 2-211. We also determine that the circuit court abused
its discretion in denying permissive intervention as to the Growers under Maryland Rule
2-214(b). In contrast, we conclude that the circuit court did not err or abuse its discretion
in denying intervention as of right or permissive intervention as to the Patients and the
Trade Association Petitioners, and that the Patients and the Trade Association Petitioners
were not entitled to be made a party under CJ § 3-405(a)(1).
We first address intervention as of right as to the Growers. Relevant case law
establishes that intervention as of right under Maryland Rule 2-214(a)(2) is comprised of
four requirements: timeliness, a claim of an interest, impairment or impediment to the
ability to protect that interest, and inadequate representation by the parties. See Md. R. 2-
214(a)(2); Washington Grove, 408 Md. at 69-70, 968 A.2d at 571-72. Given that this
analysis involves intervention as of right, we review the issue without deference to the
circuit court. See Washington Grove, 408 Md. at 65, 968 A.2d at 568-69.
As to the first requirement, timeliness, the threshold consideration, we are guided
by the four factors that we set forth in Washington Grove, 408 Md. at 70, 968 A.2d at
572—(1) the purpose for which intervention is sought; (2) the probability of prejudice to
the parties; (3) the extent to which the proceedings have progressed; and (4) the reasons
for delay in seeking intervention. We conclude, as did the circuit court, that the Growers’
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motion to intervene was timely. Here, the Growers sought to intervene to protect what they
described as a direct property interest that would have been impaired or impeded by the
action. AMM has not alleged that it was prejudiced by any delay in the filing of the
Growers’ motion to intervene. Although at the February 21, 2017 hearing, AMM’s counsel
indicated that AMM did not waive the issue of timeliness, in the opposition to the motion
to intervene, AMM did not argue that the motion to intervene was untimely filed. In not
raising an issue of timeliness in the opposition to the motion to intervene, AMM necessarily
did not allege any prejudicial delay. And, we do not discern the probability of any prejudice
to the parties based on the timing of the filing of the motion to intervene.
As to the extent to which the proceedings had progressed, the Growers filed the
motion to intervene on December 30, 2016, within two months of AMM’s filing of the
complaint for declaratory judgment, which was filed on October 31, 2016. At that point,
the circuit court had not yet ruled on the Commission’s motion to dismiss, or, in the
alternative, for summary judgment, which was filed on December 12, 2016. Because the
motion to intervene was filed early in the litigation and shortly after the filing of the
complaint and the Commission’s motion to dismiss, there was no delay in seeking
intervention. Indeed, at the February 21, 2017 hearing, the circuit court determined that no
argument was necessary on the issue of timeliness and found that the motion to intervene
was timely filed. We agree. The motion to intervene was filed less than two months after
the filing of the complaint, approximately two weeks after the filing of the Commission’s
motion to dismiss, and before the filing of an answer.
The second and third requirements necessary for intervention as of right, namely, a
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claim of an interest and impairment or impediment to the ability to protect that interest, are
also fully satisfied. Throughout the litigation, the Growers have claimed an interest in the
form of a direct or vested property right. Indeed, on February 20, 2017, the day before the
hearing on the motion to intervene, the Growers submitted three affidavits from owners or
members of Curio Cultivation, SunMed Growers, and ForwardGro. In the affidavits, the
owners or members averred that, after receiving pre-approvals for medical cannabis grower
licenses, the Growers had expended significant amounts of money to prepare to meet the
State’s regulatory deadline, had contracted for facilities, hired employees, and taken other
actions in reliance on their status as pre-approval awardees. After receiving pre-approvals
for medical cannabis grower licenses, the Growers had one year in which to become
operational. If the Growers failed to do so, their pre-approvals would become subject to
rescission by the Commission. See COMAR 10.62.08.06E. From our perspective, the
Growers plainly have an interest that intervention is necessary to protect. As required by
relevant case law, the Growers have demonstrated that intervention is essential to protect
their status as pre-approval awardees and, in one instance, a medical cannabis grower
licensee. The Growers have satisfied the statutory pre-approval process—and ForwardGro
has been approved for a medical cannabis grower license—and expended significant
resources to meet the necessary requirements for becoming fully approved licensed
medical cannabis growers. Despite AMM’s contentions, it almost goes without saying that
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the Growers may be disadvantaged by this case’s outcome.25
In denying the motion to intervene, the circuit court defined the issue as whether the
Commission had administered the relevant statute in a constitutional manner and the circuit
court determined that the Growers did not have an applicable interest in the issue. At oral
argument, the Commission’s counsel contended that the question is whether the Growers
have an interest in the transaction that is the subject of the case, not whether the Growers
had an interest in the legal issue that is to be decided by the circuit court. The
Commission’s counsel’s view is consistent with case law concerning intervention as of
right under Maryland Rule 2-214(a)(2). See Washington Grove, 408 Md. at 69, 968 A.2d
at 571 (The second requirement for intervention as of right under Maryland Rule 2-
214(a)(2) is that “the person claims an interest relating to the property or transaction that
is the subject of the action[.]”). The Growers have consistently claimed an interest in the
case by virtue of having been pre-approved for medical cannabis grower licenses. By
claiming such an interest, the Growers are obviously claiming an interest in the transaction
that is the subject of the action—namely, the Commission’s pre-approval process and
issuance of medical cannabis grower licenses.
As to any impairment or impediment of the Growers’ ability to protect their interest,
in the complaint for declaratory judgment, AMM sought an injunction prohibiting the
Commission from issuing final approvals for the fifteen businesses, including the Growers,
25
It is not necessary that we address the Growers’ contention that they have a
“vested” property interest. The circumstance is that the Growers have more than
demonstrated that they have an interest in the case that intervention is necessary to protect.
- 45 -
whose applications for medical cannabis grower licenses were pre-approved. AMM also
sought an order forcing the Commission to dispense with the existing results of the pre-
approval process and to reconduct the pre-approval stage of the medical cannabis grower
licensing process taking diversity into account. Obviously, if granted, this relief would
potentially impinge upon the Growers’ interest in the pre-approval and licensing process,
given that the Growers have already been designated as pre-approval awardees and
ForwardGro has been granted a medical cannabis grower license. Plainly, the Growers
“might be disadvantaged by” this case’s disposition, Emps.’ Ret. Sys., 317 Md. at 89 n.19,
562 A.2d at 728 n.19, which could affect the Growers’ status in the licensing process. See
also Washington Grove, 408 Md. at 99, 968 A.2d at 590 (“The standard . . . [i]s whether
the disposition of the action would at least potentially impair the [proposed intervenor]’s
ability to protect its interest.” (Citation and internal quotation marks omitted)). In sum,
denial of the motion to intervene and exclusion of the Growers as parties in AMM’s request
for declaratory judgment would impede the Growers’ ability to protect their interest in the
pre-approval and licensing process.
No matter how this case proceeds, the Growers have interests that will be at stake.
If the circuit court orders the Commission to reconduct the pre-approval stage of the
medical cannabis grower licensing process, the Growers will be forced to undergo the
process of submitting an application a second time and awaiting the Commission’s
decision. If, in such a scenario, the Commission decided not to pre-approve the Growers’
applications, the Growers would not only lose the opportunity to become licensed medical
cannabis growers in Maryland, but also would have forfeited the investments made as a
- 46 -
result of the first pre-approval process. Even if the Commission pre-approved the Growers’
applications during a second pre-approval process—which is uncertain, given that the
second pre-approval process would necessarily be conducted under different rules—the
Growers’ interests would be impaired in the interim because of delay and uncertainty as to
whether the Growers would be successful during the second pre-approval process.
Finally, the fourth requirement for intervention as of right, inadequate
representation by the parties, is satisfied. Obviously, as competitors in the medical
cannabis growing industry, the Growers and AMM have interests that are adverse to each
other. The real question is whether the Commission adequately represents the Growers’
interests. The circumstances of this case make clear that the Commission cannot do so.
As Petitioners observe, this conclusion is not a critique of the Office of the Attorney
General. Indeed, tellingly, on behalf of the Commission, the Office of the Attorney
General candidly advises that it does not adequately represent the Growers’ interests. At
the risk of stating the obvious, the Office of the Attorney General represents the
Commission’s interest, not any business’s or individual’s interest. The Commission has
an interest in regulating Maryland’s medical cannabis industry while fully comporting with
applicable law, and in “implement[ing] programs to make medical cannabis available to
qualifying patients in a safe and effective manner.” HG § 13-3302(c). As such, the
Commission has an interest in licensing qualified medical cannabis growers, but the
Commission has no interest in licensing any particular individual medical cannabis grower,
as opposed to another. The Commission has an interest in selecting qualified medical
cannabis growers and regulating medical cannabis growers; as a result, the Commission,
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in actuality, has a conflict of interest with respect to the representation of the Growers in a
lawsuit in which the Growers seek to maintain their status as pre-approval awardees and
the Commission seeks to assure that the selection process is lawfully implemented. In
other words, the Growers’ interest is in making sure that they maintain their pre-approval
status and receive medical cannabis grower licenses, and the Commission’s interest is in
assuring that the selection process comports with applicable law. The Growers have an
interest in achieving the outcome in which they are the recipients of medical cannabis
grower licenses as opposed to other growers; the Commission does not share this interest.
In short, the Growers have easily met the burden of showing that the Commission’s
representation may be inadequate—which is not a burden to demonstrate that the
Commission’s representation is, in fact, inadequate. Washington Grove, 408 Md. at 102,
968 A.2d at 591 (“The burden of showing that existing representation may be inadequate
is a minimal one.” (Citation omitted)). Essentially, under the “interest-analysis” test, the
Growers have shown that their interest is not fully represented or advocated by either AMM
or the Commission. AMM clearly has interests that are adverse to the Growers. And, the
Commission has interests that are not similar to that of the Growers, i.e., the Commission’s
interest is in conducting the medical cannabis grower licensing process lawfully, whereas
the Growers’ interest is in protecting their status and investment as pre-approval awardees.
In sum, the Growers were entitled to intervention as of right because the four
requirements for intervention as of right under Maryland Rule 2-214(a)(2) were satisfied—
the motion to intervene was timely filed, the Growers’ have an interest relating to the
property or transaction that is the subject of the action, the disposition of the action may
- 48 -
impair or impede the Growers’ ability to protect that interest, and the Growers’ interest is
not adequately represented by the existing parties.26
The Growers contend that CJ § 3-405(a)(1) and Maryland Rule 2-211(a) confer
indispensable party status on them in a declaratory judgment action. 27 On the other hand,
26
In light of the conclusion that the Growers were entitled to intervention as of right
under Maryland Rule 2-214(a)(2) and, as explained infra, to be made parties under CJ § 3-
405(a)(1), the Court need not reach whether the Growers were also entitled to permissive
intervention. Nonetheless, we also conclude that the circuit court abused its discretion in
denying permissive intervention for the Growers. Generally, permissive intervention is
warranted where the person seeking to intervene files a timely motion and has a claim or
defense with a question of law or fact in common with the case, and where intervention
would not unduly delay or prejudice the adjudication of the parties’ rights. See Md. R. 2-
214(b). Here, all three of these circumstances exist. Petitioners’ motion to intervene was
timely. The Growers plainly have a claim with questions of law and fact in common with
this case. AMM contends that the Commission violated the law with respect to considering
racial and ethnic diversity during the medical cannabis grower licensing process. The
Growers have a claim that they have a property interest in the case and that their pre-
approvals for medical cannabis grower licenses were properly issued under the relevant
statutes and regulations. The respective claims involve common questions of law and fact.
And, intervention would not unduly delay or prejudice the adjudication of the parties’
rights. Although granting permissive intervention could perhaps result in delay, the delay
would not be unreasonable or prejudice the adjudication of the parties’ rights.
27
The Growers contend that, in addition to intervention being required under
Maryland Rule 2-214(a)(2) and that they are entitled to be made a party under CJ § 3-
405(a)(1), Maryland Rule 2-211(a) requires their joinder as parties to the action. In short,
as ordered in the July 28, 2017 per curiam order, we agree. Maryland Rule 2-211(a),
concerning required joinder of parties, provides:
Except as otherwise provided by law, a person who is subject to service of
process shall be joined as a party in the action if in the person’s absence
(1) complete relief cannot be accorded among those already parties, or
(2) disposition of the action may impair or impede the person’s ability to
protect a claimed interest relating to the subject of the action or may leave
persons already parties subject to a substantial risk of incurring multiple or
inconsistent obligations by reason of the person’s claimed interest.
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AMM argues that CJ § 3-405(a)(1) “does not provide any greater right to intervention”
than the Growers would have under Maryland Rule 2-214(a)(2). Of significance, CJ § 3-
405(a)(1) states: “If declaratory relief is sought, a person who has or claims any interest
which would be affected by the declaration, shall be made a party.”
Given that this Court has concluded that the Growers are entitled to intervention as
of right under Maryland Rule 2-214(a)(2), whether CJ § 3-405(a)(1) provides a basis for
the Growers to become a party independent of Maryland Rule 2-214(a)(2) is not
dispositive. In other words, if we were to accept AMM’s position that CJ § 3-405(a)(1)
requires the same analysis as Maryland Rule 2-214(a)(2), the result would be the same, i.e.,
the Growers would be entitled to be made a party under CJ § 3-405(a)(1), as well as to
intervention under Maryland Rule 2-214(a)(2). It is not clear, however, as AMM contends,
that case law establishes that being made a party under CJ § 3-405(a)(1) is dependent upon
the satisfaction of Maryland Rule 2-214(a)(2).
In Duckworth, 393 Md. at 529-30, 903 A.2d at 886, which predated the Civil
The court shall order that the person be made a party if not joined as required
by this section. If the person should join as a plaintiff but refuses to do so,
the person shall be made either a defendant or, in a proper case, an
involuntary plaintiff.
The requirement of Maryland Rule 2-211(a)(2)—that “disposition of the action may
impair or impede the person’s ability to protect a claimed interest relating to the
subject of the action”—is plainly satisfied for the same reasons that the third
requirement for intervention as of right under Maryland Rule 2-214(a)(2), i.e., “the
person is so situated that the disposition of the action, as a practical matter, may
impair or impede that person’s ability to protect that interest[,]” Washington Grove,
408 Md. at 69, 968 A.2d at 571, is satisfied.
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Marriage Protection Act, a group of individuals sued the clerks of certain circuit courts
who had denied them licenses for same-sex marriages. Eight members of the General
Assembly sought intervention as of right and permissive intervention in the lawsuit. See
id. at 531, 903 A.2d at 887. In Duckworth, id. at 529, 534, 903 A.2d at 886, 889, this Court
held, in pertinent part, that a trial court did not err in denying the motion to intervene that
had been filed by the group of legislators, who relied on both Maryland Rule 2-214(a) and
CJ § 3-405(a) for intervention as of right. In analyzing the issue of intervention as of right
under Maryland Rule 2-214(a)(2), this Court concluded that the legislators failed to satisfy
requirements for intervention, namely, that the proposed intervenor “claim an interest in
the subject of the action such that the disposition of the action may impair or impede the
[proposed intervenor]’s ability to protect that interest[,]” and “that [the] interest might not
be adequately represented by existing parties.” Id. at 539, 903 A.2d at 891-92.
Specifically, the Court determined that the interest of the legislators “in the litigation [wa]s
no different from the interest of the general public” and that “[t]hey would be no more
affected by an adverse decision than any resident of Maryland.” Id. at 540, 903 A.2d at
892. As to CJ § 3-405(a), this Court concluded that the legislators’ reliance on the
Declaratory Judgments Act was misplaced because the argument was not raised by the
legislators in the trial court and thus was not properly preserved for review. Id. at 542, 903
A.2d at 893. This Court noted that, alternatively, “for the reasons set forth above
[concerning intervention as of right under Maryland Rule 2-214(a)(2)], the legislators d[id]
not have an ‘interest which would be affected by the declaration’ within the meaning of
[CJ] § 3-405(a)(1)[.]” Id. at 542, 903 A.2d at 893. From our perspective, the holding in
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Duckworth does not preclude the conclusion that the Declaratory Judgments Act provides
a distinct right to intervention other than that set forth under Maryland Rule 2-214(a)(2).28
Notwithstanding AMM’s position, we conclude that CJ § 3-405(a)(1) provides an
independent basis for becoming a party in a declaratory judgment action. In Duckworth,
393 Md. at 542, 903 A.2d at 893, although this Court determined that intervention as of
right was not appropriate under Maryland Rule 2-214(a)(2), this Court stated that the
legislators did “not have an ‘interest which would be affected by the declaration’ within
the meaning of [CJ] § 3-405(a)(1)[.]” In Duckworth, this Court did not explicitly tie
becoming a party, i.e., intervention, under CJ § 3-405(a)(1) to the need to satisfy the four
requisites of intervention as of right under Maryland Rule 2-214(a)(2). Both CJ § 3-
405(a)(1) and Maryland Rule 2-214(a)(2) require that a party have an interest—under CJ
§ 3-405(a)(1), “a person who has or claims any interest which would be affected by the
declaration[] shall be made a party[,]” and under Maryland Rule 2-214(a)(2) a person must
“claim[] an interest relating to the property or transaction that is the subject of the action[,]”
Washington Grove, 408 Md. at 69, 968 A.2d at 571. This Court’s holding in Duckworth
demonstrates that there may be an overlap in analyzing whether an interest exists under CJ
28
In its brief, AMM relies on Montgomery Cty. v. Bradford, 345 Md. 175, 691 A.2d
1281 (1997) and Hartford Ins. Co. v. Birdsong, 69 Md. App. 615, 519 A.2d 219 (1987) to
support the assertion that the Declaratory Judgments Act does not provide a greater right
to intervention than Maryland Rule 2-214(a)(2). Contrary to AMM’s contention, Hartford,
69 Md. App. at 617-19, 519 A.2d at 220-21, involved a personal injury action in which
plaintiffs sought damages resulting from an automobile accident. Bradford, 345 Md. at
177-78, 691 A.2d at 1282, on the other hand, involved an action for declaratory judgment;
however, the interplay between CJ § 3-405(a) and Maryland Rule 2-214(a)(2) is not
discussed in the case.
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§ 3-405(a)(1) and Maryland Rule 2-214(a)(2), but the holding does not remotely suggest
that Maryland Rule 2-214(a)(2)’s requirements must be satisfied to establish intervention
under CJ § 3-405(a)(1).
Indeed, in Duckworth, 393 Md. at 542, 903 A.2d at 893, the Court determined that
the issue of intervention under CJ § 3-405(a) was not properly preserved and before the
Court for review. Thus, the Court’s comment concerning intervention under CJ § 3-405(a),
in the context of the issue not being before the Court, was dicta. Given the Court’s remarks,
however, a fair inference is that the Court recognized a separate basis for intervention under
CJ § 3-405(a)—tellingly, the Court indicated that the issue was not before the Court,
treating it as a separate issue from that of Maryland Rule 2-214(a)(2).
Given that CJ § 3-405(a)(1)’s application is more specific than that of Maryland
Rule 2-214(a)(2)—CJ § 3-405(a)(1) applies only to declaratory judgment actions and
Maryland Rule 2-214(a)(2) applies to all civil actions—it is logical to conclude that CJ §
3-405(a)(1) provides an independent basis for intervention. Stated otherwise, CJ § 3-
405(a)(1) is relevant only in a specific class of cases where declaratory judgment is at issue;
in contrast, Maryland Rule 2-214(a)(2) is applicable in any type of civil case in which a
person seeks to intervene as of right, i.e., in cases involving contracts, torts, family law
matters, and the like. To determine that CJ § 3-405(a)(1) does not provide an independent
basis for intervention would render CJ § 3-405(a)(1)’s language that “a person who has or
claims any interest that would be affected by the declaration[] shall be made a party”
superfluous. Based on a plain reading of CJ § 3-405(a)(1), the ground for intervention
under the statute is that a person either has or claims an interest that would be affected by
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the declaration sought in the action. In other words, CJ § 3-405(a)(1), by its plain language,
does not require satisfaction of all of the requisites of Maryland Rule 2-214(a)(2). Put
simply, to warrant intervention under CJ § 3-405(a)(1), a person need only show that they
have or claim an interest that would be affected by the declaration. To hold otherwise
would be to read into CJ § 3-405(a)(1) language that does not exist. In short, the Growers
were entitled to intervention under Maryland Rule 2-214(a)(2) because they satisfied the
four requisites, and under CJ § 3-405(a)(1) because they clearly claimed an interest that
would be affected by the declaration sought by AMM.29
In contrast to our holding with respect to the Growers, we conclude that the circuit
court properly denied intervention as of right and permissive intervention as to the Patients
and the Trade Association Petitioners. Although Petitioners’ motion to intervene was
timely filed, the Patients’ and the Trade Association Petitioners’ interests are too attenuated
to satisfy the requirements for intervention as of right under Maryland Rule 2-214(a)(2).
The interest claimed by the Patients, who advise that they suffer from epilepsy, is that they
assert that, at some point in the future, a qualifying physician will find them to be qualifying
patients and prescribe the use of medical cannabis, which may benefit them. The interest
claimed by the Trade Association Petitioners is that they advocate for prompt access to
medical cannabis, patient rights, and the interests of the Growers. In our view, the
29
We are mindful of Petitioners’ claim, made in the motion to dismiss, that this
action is not properly brought as a declaratory judgment action and should be treated as a
petition for judicial review. Nothing in this discussion about the right to intervene under
CJ § 3-405(a)(1) is intended to supercede the circuit court’s ability to determine the issue
raised in the motion to dismiss on remand.
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generalized and theoretical interests claimed by the Trade Association Petitioners and
Patients are simply not adequate to satisfy the second requirement for intervention as of
right under Maryland Rule 2-214(a)(2), namely, that “the person claims an interest relating
to the property or transaction that is the subject of the action[.]” Washington Grove, 408
Md. at 69, 968 A.2d at 571 (citations omitted). The Patients and the Trade Association
Petitioners may have an interest in seeing Maryland’s medical cannabis industry become
operational as soon as possible, but that does not mean that the interest is sufficiently or
specifically related to the transaction that is the subject of the action—namely, the
Commission’s lawful administration of the process utilized in issuing pre-approvals and
licenses for medical cannabis growers—to warrant intervention. Although the Patients’
and the Trade Association Petitioners’ interest may overall be in having the medical
cannabis industry becoming operational without undue delay, it cannot be said with any
degree of certainty that the outcome of this lawsuit might cause them to incur any kind of
special damage differing from that suffered by the general public. See Duckworth, 393
Md. at 540, 903 A.2d at 892.
We also conclude that the Patients and the Trade Association Petitioners do not
fulfill the third requirement for intervention as of right under Maryland Rule 2-214(a)(2)
because the Patients and the Trade Association Petitioners are not “so situated that the
disposition of the action, as a practical matter, may impair or impede th[eir] ability to
protect that interest.” Washington Grove, 408 Md. at 69, 968 A.2d at 571. As stated, the
Trade Association Petitioners’ interest is simply in advocating for the advancement of
access to medical cannabis; whatever the disposition of the case, the Trade Association
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Petitioners’ ability to protect their interest will not be impaired or impeded. The Patients’
ability to protect their interest is not impaired or impeded by the disposition of the case.
At most, the disposition of the case in AMM’s favor—which could result in an order that
the Commission reconduct the pre-approval process for medical cannabis grower licenses
under the provisions of HG § 13-3306(a)(9)(i)1—may result in delaying the date when the
medical cannabis industry becomes operational in Maryland; however, the disposition of
the case would not mean that medical cannabis would not become available to qualifying
patients in Maryland.
Because we conclude that the Patients and the Trade Association Petitioners do not
satisfy the second and third requirements for intervention as of right under Maryland Rule
2-214(a)(2), we do not address the fourth requirement, i.e., whether their interests are not
adequately represented by existing parties to the action. We also determine that the Patients
and the Trade Association Petitioners do not have or claim an interest which would be
affected by the outcome of the declaratory judgment action within the meaning of CJ § 3-
405(a)(1), and thus they do not qualify for intervention under CJ § 3-405(a)(1). The circuit
court correctly denied intervention as of right under Maryland Rule 2-214(a)(2) as to the
Patients and the Trade Association Petitioners, and the Patients and the Trade Association
Petitioners were not entitled to be made a party under CJ § 3-405(a)(1).
In addition, we conclude that the circuit court did not abuse its discretion in denying
permissive intervention to the Patients and the Trade Association Petitioners. We do not
discern that the Patients’ and the Trade Association Petitioners’ claims raise a question of
law or fact in common with the action, where the action concerns the constitutionality of
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the Commission’s process and issuance of pre-approvals for medical cannabis grower
licenses, and the Patients’ and the Trade Association Petitioners’ interests are, as explained,
attenuated and generalized interests in having the medical cannabis industry operational in
Maryland sooner rather than later. Cf. Simpson v. Consol. Constr. Servs., Inc., 143 Md.
App. 606, 636, 795 A.2d 754, 771 (The Court of Special Appeals held that the trial court
properly denied permissive intervention and found that there was no question of law or fact
in common where the case at issue “involved claims of negligence, professional liability,
breach of warranty, and breach of contract arising from [] road failures[,]” and where the
proposed intervenors “sought to intervene in that case for an entirely unrelated reason—to
enforce their writs of garnishment by challenging the propriety of [a] settlement
agreement.”), aff’d in part and rev’d in part on other grounds, 372 Md. 434, 813 A.2d 260
(2002).
II. Remand to the Circuit Court
Having concluded that the circuit court erred in denying intervention as to the
Growers, we next address the case’s remand to the circuit court, as ordered in the July 28,
2017 per curiam order.
In the motion to dismiss in the circuit court, Petitioners raised several issues,
including that the doctrine of laches applies and bars AMM’s claims, that this is an
administrative mandamus action that was untimely filed, and that, if reviewed at all, the
action must be considered, not as a complaint for declaratory judgment, but as a request
for on-the-record judicial review of the Commission’s actions under the substantial
evidence test. Specifically, Petitioners contend that the doctrine of laches bars AMM’s
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claims against the Commission because AMM delayed in filing suit to Petitioners’
detriment, and that this Court, on its own, i.e., “sua sponte,” may address the issue of the
applicability of the doctrine of laches. Alternatively, Petitioners request that, should this
Court decline to address the issue of the doctrine of laches and dismiss the case, the case
be remanded to the circuit court to address the issues raised in the motion to dismiss.
In the Commission’s brief, in a footnote, after observing that Petitioners “have
requested that the Court remand the action to the circuit court with directions to dismiss
the action as barred by laches[,]” the Commission advises that it “agrees” with Petitioners
“that the record supports dismissal on the basis of [the doctrine of] laches.”
AMM responds that the circuit court did not address the issue as to the doctrine of
laches as the motion to dismiss became moot once the circuit court denied Petitioners’
motion to intervene, i.e., AMM argues that the issue as to the doctrine of laches is not
before this Court because it was not raised in or decided by the circuit court. As to the
merits, AMM asserts that its claims against the Commission accrued only once the
Commission issued pre-approvals for medical cannabis grower licenses, and not at some
earlier time, such as, for example, when the Commission adopted COMAR 10.62.08.05.
As such, AMM contends that, for the purpose of assessing the applicability of the doctrine
of laches, any delay should be measured from the Commission’s August 15, 2016 issuance
of pre-approvals. AMM argues that the seventy-seven days between issuance of the pre-
approvals and the filing of the complaint was not unreasonable, and that any delay did not
prejudice the Growers. As to a remand of the case to consider the issues raised in
Petitioners’ motion to dismiss, AMM responds that, like the issue as to the doctrine of
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laches, the issues as to administrative mandamus and judicial review are not before this
Court because the circuit court did not address the issues.
We conclude that a remand of the case to the circuit court with instructions to
consider, in the first instance, the issues that Petitioners raised in their motion to dismiss is
warranted. Simply put, the circuit court’s reasoning for not addressing the arguments
raised in Petitioners’ motion to dismiss is no longer valid. At the February 21, 2017
hearing, after denying the motion to intervene, the circuit court denied Petitioners’ motion
to dismiss as moot upon determining that Petitioners were nonparties. Specifically, the
circuit court stated: “And those same former proposed intervenors filed a Motion to
Dismiss. And again for the same reasons the Court will find the Motion to Dismiss filed
in AMM . . . by the proposed intervenors is moot now that they are not parties to this
action.” In light of our reversal of the circuit court’s denial of the motion to intervene as
to the Growers, the basis for the circuit court’s denial of the motion to dismiss has become
a nullity. In other words, because we hold that the Growers were entitled to intervention
as of right and that the circuit court erred in denying intervention as of right as to the
Growers, the circuit court’s rationale for not addressing the merits of Petitioners’ motion
to dismiss no longer exists. As such, it is appropriate to remand the case to the circuit court
for the circuit court to address the merits of the arguments raised in Petitioners’ motion to
dismiss, including the applicability of the doctrine of laches, whether the action is an action
for administrative mandamus, i.e., a petition for judicial review, which was untimely filed,
and, if it is not dismissed, whether the complaint should be treated as a petition for judicial
review, not a complaint for declaratory judgment, subject to an on-the-record review under
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the substantial evidence test.
In addition, we observe that the denial of a motion to dismiss filed by a party would
not have been immediately appealable under any theory. For example, in State v. Jett, 316
Md. 248, 251, 558 A.2d 385, 386 (1989), a case involving the State’s appeal from the
denial of a motion to dismiss a tort claim asserted against it, this Court explained:
The order denying the State’s motion to dismiss is not a final judgment
on the merits of the litigation. We have long recognized, however, a narrow
class of orders, referred to as collateral orders, which are offshoots of the
principal litigation in which they are issued and which are immediately
appealable as final judgments without regard to the posture of the case. For
an order to be appealable under the collateral order doctrine it must (1)
conclusively determine the disputed question, (2) resolve an important issue,
(3) be completely separate from the merits of the action, and (4) be
effectively unreviewable on appeal from a final judgment.
(Citations and internal quotation marks omitted). See also City of Dist. Heights v. Denny,
123 Md. App. 508, 514, 519, 719 A.2d 998, 1001, 1003 (1998) (The Court of Special
Appeals stated that, “[b]ecause the denial of a motion to dismiss is not a final judgment, it
is ordinarily not subject to interlocutory review”; the Court noted, however, that an order
may be immediately appealable under the collateral order doctrine.). Here, even if
Petitioners had been parties, the circuit court’s denial of Petitioners’ motion to dismiss as
moot would not have been appealable either as an interlocutory order from which an appeal
may be noted, as set forth in CJ § 12-303, or under the collateral order doctrine, which
requires, among other things, that the order to be appealed conclusively determine the
disputed question. Because the circuit court denied the motion to dismiss, reasoning that
it was moot by virtue of Petitioners remaining nonparties, the circuit court did not address
any of the merits of the motion to dismiss, or rule conclusively one way or the other with
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respect to any disputed question.
We will not, sua sponte, address Petitioners’ argument concerning the applicability
of the doctrine of laches. As to the doctrine of laches and when the defense may be raised,
in Liddy v. Lamone, 398 Md. 233, 242-43, 919 A.2d 1276, 1282-83 (2007), this Court
explained:
Laches is one of the affirmative defenses recognized and expressly
listed in Md. Rule 2-323. Generally, it must be pled, but it can be invoked
by a court on its own initiative. See, e.g., Ipes v. Board of Fire Comm’rs of
Baltimore, 224 Md. 180, 183, 167 A.2d 337, 339 (1961) (recognizing that
laches is a proper ground for refusing to issue a writ of mandamus);
Baltimore County v. Glendale Corp., 219 Md. 465, 468, 150 A.2d 433, 435
(1959) (noting that, although it is essential to raise the defense of laches in
the pleadings, “equity may decline relief for a stale claim after the facts are
fully developed”); Warburton v. Davis, 123 Md. 225, 231, 91 A. 163, 165
(1914) (recognizing that a court, in a proper case and on its own motion, may
refuse to grant relief to a complainant who on the final hearing appears to
have been guilty of laches, although the defense was not interposed by the
defendant), citing Syester v. Brewer, 27 Md. 288, 319 (1867).
(Footnotes omitted). In other words, although ordinarily the doctrine of laches must be
pled as an affirmative defense, a court may, on its own initiative, invoke the doctrine of
laches where appropriate. Here, Petitioners raised an issue as to the doctrine of laches in
the motion to dismiss in the circuit court; we decline to exercise any discretion to
instantaneously address the merits of the issue concerning the doctrine of laches where the
circuit court has not yet made a determination as to the doctrine’s applicability.30
30
To be sure, in Canavan v. Md. State Bd. of Elections, 430 Md. 533, 534, 61 A.3d
828 (2013), in a per curiam order, this Court ordered that a trial court’s judgment be
“affirmed summarily by a unanimous Court on the bases of laches and untimeliness, as
discussed in the [trial c]ourt’s Memorandum Opinion dated January 22, 2013 and the
amended Order dated February 20, 2013.” (Footnote omitted). However, it is clear from
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As a final point, we note that we do not offer any opinion regarding the merits of
the issues that Petitioners raised in their motion to dismiss nor do we offer an opinion as to
the merits of the complaint for declaratory judgment, i.e., whether the State properly
considered racial and ethnic diversity in the pre-approval process for medical cannabis
grower licenses. We simply determine that the Growers are entitled to intervention; and
that, as a natural consequence of the reversal of the circuit court’s denial of the motion to
intervene as to the Growers, the circuit court must examine the motion to dismiss that the
circuit court originally denied as moot on the ground that Petitioners (including the
Growers) were nonparties.
III. Conclusion
In sum, we determine that the Growers were entitled to intervention as of right under
Maryland Rule 2-214(a)(2), to be made a party under 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 as to the Growers. In contrast, we conclude that the circuit court
did not err or abuse its discretion in denying intervention as of right or permissive
intervention as to the Patients and the Trade Association Petitioners, and that the Patients
and the Trade Association Petitioners were not entitled to be made a party under CJ § 3-
405(a)(1). We determine that the circuit court is to address, in the first instance, the issues
raised in Petitioners’ motion to dismiss, which was denied as moot on the basis of the
the language of the per curiam order that the trial court in that case had discussed and
decided the issue of the applicability of the doctrine of laches, and that this Court was not
deciding the matter in the first instance and summarily disposing of the case on the basis
of the doctrine of laches without the benefit of the trial court’s reasoning.
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circuit court’s erroneous denial of the motion to intervene as to the Growers. Thus, for
these reasons, on July 28, 2017, we issued the per curiam order: (1) reversing the circuit
court’s judgment with respect to the denial of intervention of the Growers and remanding
the case to the circuit court with instructions to grant intervention as of right to the Growers;
(2) affirming the circuit court’s judgment with respect to the denial of intervention of the
Patients and the Trade Association Petitioners; (3) remanding the case to the circuit court
for further proceedings including determination of the issue of the applicability of the
doctrine of laches; (4) lifting the stay issued by this Court on June 2, 2017; and (5) ordering
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.
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