Minnesota Judge Dismisses Lawsuit Claiming People Who Grow Marijuana At Home Can Sell It Under State Constitution’s ‘Peddler Provision’

“This court concludes that Plaintiffs’ claims are premature and that dismissal without prejudice, and without reaching the merits, is appropriate.”

By Peter Callaghan, MinnPost

A Ramsey County, Minnesota judge has ruled that while the cannabis plants of a quartet of home growers might be mature, the constitutional challenge they filed to allow them to sell their crop without a license is not yet ripe.

District Court Judge Edward Sheu dismissed the claim brought by three medical cannabis patients and one non-medical patient who are legally growing up to eight cannabis plants at home under the new law. In Eric Rech v. Charline Briner, the four argued that a state constitutional provision blocks the state from requiring they be licensed to sell the excess cannabis from their plants.

Art. 13, section 7, adopted as a constitutional amendment 120 years ago, says “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”

But the state attorney general argued, and Sheu agreed, that the case is premature—or in legal terms not ripe—because the state Office of Cannabis Management is in the midst of rulemaking. That means it is possible the rules could allow the type of sale of excess cannabis crop by home growers and therefore the legal challenge would not be necessary.

Is such a rule possible? A list of draft rules posted by the OCM July 31 doesn’t go there, likely because the state law legalizing recreational cannabis clearly states that sales must be licensed. And the regulators are currently going through a complex process to award what will be a limited number of licenses that will leave many hopefuls disappointed.

Still, it is possible, though unlikely, that the final rules could allow home growers to sell the cannabis they don’t need for personal use.

Jeffrey O’Brien said he filed the suit both to provide clarity to the four home growers and to finally get the state courts to recognize and interpret the peddler provision in the constitution. Previously courts have said the illegality of cannabis excluded it from the constitutional provisions. The Supreme Court has also ruled that while a license might not be required, the state can still regulate the sale of farm products for health and safety purposes.

But this is the first case asking the court to take another look at a farm product that is now legal to possess, grow and use and will soon be legal to sell. O’Brien considered it a “red herring” that OCM might allow unlicensed sales by those who grow their own cannabis on their “farm or garden.”

“There’s no way, no how, that OCM is going to let those guys grow at home and sell without a license,” O’Brien said. He has asked the plaintiffs if they want to appeal Sheu’s ruling or wait until rules are adopted and refiled a claim in district court.

O’Brien expressed disappointment that the district court has again avoided the basic constitutional issue.

“At some point a court is going to have to address it,” he said. The legal challenge was meant to get a ruling without his plaintiffs having to risk arrest for what the state could say are illegal sales. Three are medical cannabis patients who do not want to run into a criminal prosecution just to get the court to clarify the constitution.

“I don’t want to put these guys into a position where they’re facing criminal prosecution in order to get an opinion,” O’Brien said. “I don’t think that’s beneficial.”

The Sheu decision doesn’t go anywhere near the basic constitutional question: whether a constitutional amendment that emerged from a farmer selling excess melons on the streets of Minneapolis without a license must now apply to a newly legalized farm product.

“Because this court concludes it lacks subject-matter jurisdiction over Plaintiffs’ claims, because they are not yet ripe, the complaint must be dismissed without prejudice,” Sheu wrote. “Without prejudice” means the four plaintiffs are free to refile their claim later, presumably after final rules are adopted.

“This court concludes that Plaintiffs’ claims are premature and that dismissal without prejudice, and without reaching the merits, is appropriate,” the judge wrote. “Although [the cannabis law] repeatedly references a requirement for licenses, and penalties for selling cannabis without ‘a license issued under this chapter that authorizes the sale,’ those references do not refer to homegrown cannabis, nor small amounts of cannabis…and plaintiffs do not dispute, that the OCM’s rules may ultimately permit the type of conduct plaintiffs wish to engage in, namely, buying or selling excess, adult-use, homegrown cannabis without licensure. It is simply too soon to know at this point.”

The judge wrote that there currently are no legal sales of cannabis allowed—with or without a license—in Minnesota until rules are adopted. He said that the four plaintiffs appear to be seeking an advisory opinion, something the court is not empowered to provide.

“Asking the court to carve into [the cannabis law] a provision authorizing unlicensed sales of homegrown cannabis, which Defendants point out may ultimately come to fruition through the OCM’s rulemaking process, does not state a ripe claim.

“Once OCM issues rules regarding the unlicensed sale of homegrown cannabis, specifically, if the OCM determines Plaintiffs’ proposed unlicensed sales are not permitted, or if the OCM’s rules are silent on the topic, this court believes Plaintiffs’ claims would then be ripe for adjudication.”

This story was first published by MinnPost.

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