Case: 21-1719 Document: 00117916134 Page: 1 Date Filed: 08/31/2022 Entry ID: 6517249
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`NORTHEAST PATIENTS GROUP;
`HIGH STREET CAPITAL
`PARTNERS, LLC
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`v.
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`UNITED CANNABIS PATIENTS
`AND CAREGIVERS OF MAINE,
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`Defendant-Appellant
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`MAINE DEPARTMENT OF
`ADMINISTRATIVE AND
`FINANCIAL SERVICES; and
`KIRSTEN FIGUEROA
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`UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
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`APPELLANT’S MOTION
`FOR REHEARING EN BANC
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`Docket Nos. 21-1719;
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` 21-1759
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`Plaintiffs-Appellees
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`Defendants-Appellants
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`Appellant United Cannabis Patients and Caregivers of Maine
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`(“United Cannabis”) hereby petitions pursuant to Fed. R. App. P. 35(b) for
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`rehearing en banc of the split-decision judgment entered August 17, 2022.
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`The appeal presents an exceptionally important question regarding
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`the extension of constitutional Commerce Clause protections to interstate
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`drug commerce that Congress specifically “sought to eradicate,” Gonzales v.
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`
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`NORTHEAST PATIENTS GROUP;
`HIGH STREET CAPITAL
`PARTNERS, LLC
`
`
`
`v.
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`
`
`UNITED CANNABIS PATIENTS
`AND CAREGIVERS OF MAINE,
`
`
`
`
`Defendant-Appellant
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`MAINE DEPARTMENT OF
`ADMINISTRATIVE AND
`FINANCIAL SERVICES; and
`KIRSTEN FIGUEROA
`
`
`
`
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`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
`
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`APPELLANT’S MOTION
`FOR REHEARING EN BANC
`
`Docket Nos. 21-1719;
`
`
` 21-1759
`
`
`
`
`
`
`
`
`
`
`Plaintiffs-Appellees
`
`Defendants-Appellants
`
`
`
`Appellant United Cannabis Patients and Caregivers of Maine
`
`(“United Cannabis”) hereby petitions pursuant to Fed. R. App. P. 35(b) for
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`rehearing en banc of the split-decision judgment entered August 17, 2022.
`
`The appeal presents an exceptionally important question regarding
`
`the extension of constitutional Commerce Clause protections to interstate
`
`drug commerce that Congress specifically “sought to eradicate,” Gonzales v.
`
`
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`Case: 21-1719 Document: 00117916134 Page: 2 Date Filed: 08/31/2022 Entry ID: 6517249
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`Raich, 545 U.S. 1, 19 n.29 (2005), through the Controlled Substances Act, 21
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`U.S.C. §§ 801-904 (the “CSA”). No other federal court of appeals has
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`decided this novel question.
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`Rehearing en banc is appropriate because the Court’s majority
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`opinion erred in applying the dormant Commerce Clause to protect
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`interstate marijuana activities derived from Maine’s state-exclusive market
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`based upon the novel conclusion that any market in existence—lawful or
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`illicit—is entitled to Commerce Clause protection.
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`A. The Dormant Commerce Clause Has Limited Application.
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`At issue on appeal is the constitutionality of a Maine statute requiring
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`that all officers or directors of for-profit medical marijuana dispensaries
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`operating in Maine’s intrastate medical marijuana market must be Maine
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`residents. See 22 M.R.S. § 2428(6)(H). Appellants assert that the facially
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`protectionist state statute does not offend the Commerce Clause because
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`Congress’s exercise of its plenary commerce power sought to eradicate any
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`lawful, national common market for marijuana through the CSA.
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`The dormant Commerce Clause presumes that any “state law
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`discriminat[ing] against out-of-state goods or nonresident economic
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`actors,” impedes the national markets of interstate commerce unless the
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`2
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`Case: 21-1719 Document: 00117916134 Page: 3 Date Filed: 08/31/2022 Entry ID: 6517249
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`challenged law “is narrowly tailored to advance a legitimate local
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`purpose,” Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449,
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`2461 (2019). This presumption exists to “preserve[] a national market for
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`goods and services,” New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273
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`(1988), because “many subjects of potential federal regulation under that
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`power inevitably escape congressional attention because of their local
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`character and their number and diversity,” City of Philadelphia v. New Jersey,
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`437 U.S. 617, 623 (1978) (internal quotations omitted).
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`
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`At bottom, the dormant Commerce Clause’s purpose is to protect
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`“the Commerce Clause’s overriding requirement of a national common
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`market.” Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333,
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`350 (1977) (internal quotations omitted).
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`B.
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`Extending Dormant Commerce Clause Protections to Federal
`Contraband Circumvents Congress’s Regulation of Commerce.
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`The Court’s majority opinion errs in its conclusion that the dormant
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`Commerce Clause applies to protect any national market, even if that
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`market is illicit. See Op. at 10-11. No court has previously applied the
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`dormant Commerce Clause in such manner to promote and preserve illicit
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`3
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`Case: 21-1719 Document: 00117916134 Page: 4 Date Filed: 08/31/2022 Entry ID: 6517249
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`markets that were the very target of Congress’s exercise of the plenary
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`commerce power.
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`The majority opinion bases its application of the dormant Commerce
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`Clause on its observation that an interstate market for federal contraband,
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`in fact, continues to exist, “as the persistence of interstate black markets of
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`various kinds all too clearly demonstrates.” Op. at 10-11. And, the Court
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`notes, “nothing in the record in this case indicates that, due to the CSA,
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`there is no interstate market in medical marijuana.” Op. at 11.
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`Such analysis applies the dormant Commerce Clause based upon an
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`observation that Congress’s effort to eradicate marijuana from interstate
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`commerce was not completely effective, evinced by the continued existence
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`of illicit black markets. Such application of the dormant Commerce Clause
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`based upon performance of congressional regulation rather than the intent
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`of congressional regulation would allow the dormant Commerce Clause to
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`circumvent Congress’s plenary power to regulate the nation’s commerce.
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`In fact, the interstate marijuana market is not one that “escape[d]
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`congressional attention,” City of Philadelphia v. New Jersey, 437 U.S. at 623,
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`thereby warranting dormant Commerce Clause protection in lieu of
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`express congressional regulation. Rather, Congress’s adoption of the CSA
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`4
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`Case: 21-1719 Document: 00117916134 Page: 5 Date Filed: 08/31/2022 Entry ID: 6517249
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`evinces its “decisions [to] exclude[e] Schedule I drugs entirely from the
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`market, “ Gonzales v. Raich, 545 U.S. at 26. Persistence of an interstate black
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`market for marijuana despite Congress’s adoption of the CSA therefore
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`cannot negate Congress’s underlying
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`intent to eradicate
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`interstate
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`marijuana commerce. See id.
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`The majority’s opinion applies the dormant Commerce Clause based
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`upon its conclusion that Congress’s effort to eradicate marijuana from
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`interstate commerce was not completely effective, evinced by the
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`continued existence of illicit black markets. Application of the Commerce
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`Clause, however, is tied to Congress’s intent to regulate an article of
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`commerce, not performance outcomes of Congress’s attempted regulation.
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`In contrast,
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`the dissenting opinion recognizes
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`that dormant
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`Commerce Clause protections cannot be construed to extend to the
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`marijuana market already regulated by Congress. “[T]he national market
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`for marijuana is unlike the markets for liquor licenses or egg products in
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`one crucial regard: it is illegal.” Op. at 39. Consequently, “the test we have
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`developed for the mine-run of dormant Commerce clause cases [cannot]
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`apply automatically or with equal vigor when the market in question is
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`illegal as a matter of federal law.” Id.
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`5
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`Case: 21-1719 Document: 00117916134 Page: 6 Date Filed: 08/31/2022 Entry ID: 6517249
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`While many states have adopted medical marijuana markets despite
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`the federal prohibition, this conglomeration of siloed state markets cannot
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`give rise to the type of national common market that triggers the dormant
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`Commerce Clause’s application. Each state market operates separately and
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`apart from every other state market in order to avoid any interstate
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`exchange of federal contraband. Each state sells marijuana manufactured
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`exclusively in that state and sold exclusively in that state. Thus, Congress’s
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`recognition of the separate state marijuana markets in the Rohrabacher-
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`Farr Amendments added to the federal budget in recent years cannot be
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`construed as an authorization of interstate marijuana commerce, as the
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`majority opinion asserts. See Op. at 17.
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`Because no national common market for marijuana commerce
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`lawfully exists, Maine’s regulation of its intrastate marijuana market cannot
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`and does not run afoul of the dormant Commerce Clause. For the
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`aforementioned reasons, Appellant United Cannabis Patients and
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`Caregivers of Maine respectfully petitions pursuant to Fed. R. App. P. 35(b)
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`for rehearing en banc of the split-decision judgment entered August
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`17, 2022.
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`6
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`Case: 21-1719 Document: 00117916134 Page: 7 Date Filed: 08/31/2022 Entry ID: 6517249
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`Dated: August 31, 2022
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`/s/ James G. Monteleone
`James G. Monteleone
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`Attorney for Appellant United Cannabis
`Patients and Caregivers of Maine
`
`BERNSTEIN SHUR
`100 Middle Street/P.O. Box 9729
`Portland, Maine 04014
`207-774-1200
`jmonteleone@bernsteinshur.com
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 31, 2022, I electronically filed this document
`with the Clerk of the Court using the CM/ECF system that will send
`notification of such filing to all attorneys of record.
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`/s/ James G. Monteleone
`James G. Monteleone
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`7
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