Illinois Craft Cannabis Association (“ICCA”) v. The State of Illinois, Governor J.B. Pritzker, the Illinois Department of Agriculture and its director, Jerry Costello II, Case No. 2020 CH 06247
Since our last update on the ICCA’s lawsuit against the State of Illinois, much has happened, but unfortunately nothing has changed. The delays continue for the hundreds of Craft Grower, Infuser and Transporting applicants for licenses under the Illinois Cannabis Regulation and Tax Act (“CRTA”).
The CRTA mandates that licenses were to be awarded to successful applicants by July 1, 2020. Through a series of Executive Orders issued monthly by Governor Pritzker to address issues raised by COVID-19, the July 1 deadline was indefinitely suspended, with no new date identified. ICCA filed this lawsuit to compel issuance of those licenses through an immediate Writ of Mandamus and to otherwise provide relief for the various requirements under the CRTA that continue to wreak havoc on applicants as a result of the delays.
Under the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(1), Governor Pritzker can issue the pandemic-related Executive Orders, but he may only usurp legislative authority and suspend a statutory deadline if his Executive Order includes sufficient evidence that “strict compliance” with the relevant law, in this case the CRTA’s July 1, 2020 deadline for issuing the licenses, would in any way “prevent, hinder or delay necessary action, including emergency purchases, by the Illinois Emergency Management Agency, in coping with the disaster.”
ICCA’s initial motion for immediate Writ of Mandamus argued that his first Executive Order 2020-45, in June 2020, suspending the licenses indefinitely, did not show that “strict compliance” with issuing the licenses would “prevent, hinder or delay” the State’s ability to cope with the pandemic. Thus, it was unsupported and an abuse of his executive authority. Further, the Illinois legislature was clear on its deadline of July 1, 2020 and the Governor could not unilaterally interfere with that mandated aspect of the CRTA.
On the evening of December 24, 2020 (usually a celebrated evening!) Cook County Circuit Court Judge Walker denied ICCA’s motion for an immediate Writ of Mandamus to compel the issuance of the craft licenses. The ruling was based entirely on the then-recent December 11, 2020 Executive Order 2020-74, issued by Governor Pritzker in an attempt to fix the deficiencies of his original Executive Order 2020-45 from June. While Judge Walker agreed with the ICCA that 2020-45 was insufficient, he further held that the revised Executive Order 2020-74 could support the suspension of the CRTA mandated deadline for licenses, even though it still failed to state how issuing the licenses would hinder the Governor’s ability to deal with the pandemic. Judge Walker denied ICCA’s request because he said the necessary connection could be implied from the language of the revised Executive Order 2020-74. Whether the separation of powers protection can be ignored to allow Governor Pritzker (the Executive branch) to unilaterally amend a statute enacted by the Illinois Legislature, through implication where specific language does not exist in Executive Order 2020-74 and whether that order can act as a retroactive fix to a previously insufficient order are questions that have not been directly addressed by Illinois courts yet.
Shortly thereafter, Judge Walker denied ICCA’s request for leave to immediately appeal his ruling. ICCA served discovery requests on the defendants, who filed a motion to stay their discovery responses on the day they were due to be produced. Judge Walker denied the defendants’ request for a stay. ICCA decided that because much had happened since the lawsuit was filed, it made sense to file an Amended Complaint to more clearly address the ongoing Executive Orders and how the defendants continue to violate the CRTA and cause continuing damage to all applicants, as well as harm to the State of Illinois. The Amended Complaint was filed on April 21, 2021. While the licenses may ultimately be issued before the litigation is complete, the disturbing takeaway is that the damage has already been done.
If you are a Craft Grower, Infuser or Transporter, or just interested in the industry, keep a close eye on the new cannabis-related legislation expected to come out of Springfield in May. And don’t hesitate to reach out to HMB Legal with any questions or ideas.
You can read more about the lawsuit on ICCA’s website.