Kenney v. Rhode Island Cannabis Control Commission et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JUSTYNA JENSEN,
Plaintiff,
v.
RHODE ISLAND CANNABIS
CONTROL COMMISSION and
KIMBERLY AHEARN, IN HER
OFFICIAL CAPACITY,
Defendants.
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C.A. No. 24-cv-191-MRD-AEM
JOHN KENNEY,
Plaintiff,
v.
RHODE ISLAND CANNABIS
CONTROL COMMISSION and
KIMBERLY AHEARN, IN HER
OFFICIAL CAPACITY,
Defendants.
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C.A. No. 24-cv-252-MRD-AEM
MEMORANDUM AND ORDER
Melissa R. DuBose, United States District Judge.
On June 10, 2026, the Governor of Rhode Island signed into law Senate Bill
3313 (“SB 3313”) which amended the provisions of the Rhode Island Cannabis Act
(“Act”) that Plaintiffs Jensen and Kenney challenged as violating the Dormant
Commerce Clause.1 	In response to SB 3313 becoming law, Defendants filed an
1 On April 8, 2026, this Court granted Plaintiffs’ Motions for Preliminary
Injunction after finding that certain provisions of the Rhode Island Cannabis Act
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Expedited Motion to Dissolve the Preliminary Injunction and For Indicative Ruling
Under Rule 62.1 wherein they request that this Court dissolve the preliminary
injunction, allowing the Cannabis Control Commission to proceed with the new
application process under the amended Cannabis Act. 	Dkt. 191, ECF No. 50; Dkt.
252, ECF No. 50. Plaintiff Kenney supports the Defendants’ request to dissolve the
injunction, but Plaintiff Jensen opposes dissolution.2 For the following reasons, the
Defendants’ Motion to Dissolve is GRANTED.
I. 	BACKGROUND3
On April 8, 2026, this Court granted Plaintiff Justyna Jensen’s request for a
preliminary injunction which sought to 	enjoin provisions of the Rhode Island
Cannabis Act from taking effect. ECF No. 41. The Defendants appealed that decision
to the First Circuit on April 14, 2026. ECF No. 43. While that appeal was pending,
the Rhode Island General Assembly considered and passed Senate Bill 3313 and
Governor Daniel J. McKee signed it into law on June 10, 2026. 	ECF No. 50 at 3–4.
SB 3313 amended the provisions of the Act that were subject to this Court’s
preliminary 	injunction.
	Id. 	The 	amendments 	removed 	partial 	residency
violated the Dormant Commerce Clause.
	See Dkt. 24-cv-191, ECF No. 42; Dkt. 24-
cv-252, ECF No. 39.
2 Plaintiff Kenney filed a Response in Support of the Defendants’ Motion to
Dissolve (Dkt. 252, ECF No. 50) so this Memorandum and Order will focus on
Plaintiff Jensen’s arguments in Opposition to the Motion to Dissolve (Dkt. 191, ECF
No. 51).
3 The ECF citations through this Memorandum and Order correlate to
Jensen
v. Rhode Island Cannabis Control Comm’n, et al., 24-cv-191-MRD-AEM.
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requirements and social equity criteria that the Court found were likely in violation
of the Dormant Commerce Clause and Equal Protection Clause of the United States
Constitution. Summed up, the changes to the enjoined provisions are as follows:
- 	R.I. Gen Laws § 21-28.11-3(3): Removed residency requirement;
- 	R.I. 	Gen 	Laws 	§ 	21-28.11-3(23): 	Removed 	the 	entire 	section 	on
“Disproportionately Impacted Area”;
- 	R.I. Gen Laws § 21-28.11-3(34): Removed references to eligibility for
expungement under Rhode Island law, and explicitly noted that equivalent
offenses from other jurisdictions qualify;
- 	R.I. Gen Laws § 21-28.11-3(39): Removed residency requirement;
- 	R.I. Gen Laws § 21-28.11-10.2(b)(2): Removed residency requirement;
- 	R.I. Gen Laws § 21-28.11-17.2: Nullified the prior application process and
provided for a new application process.
ECF No. 50 at 7–15; ECF No. 50-1.4
On July 22, 2026, after receiving responses from Plaintiffs Jensen and Kenney
addressing the Defendants’ Expedited Motion to Dissolve the Preliminary Injunction
and For an Indicative Ruling Under Rule 62.1, this Court issued an Order indicating
that it would grant Defendants’ Motion to Dissolve if the Circuit Court of Appeals
remanded the case to this Court’s jurisdiction for that limited purpose. ECF No. 53.
On August 11, 2026, the First Circuit remanded this case “for proceedings consistent
with the indicative ruling.” 	ECF No. 54. 	After the limited remand was docketed,
Defendants re-filed Motions to Dissolve in both cases.5 	Dkt. 191, ECF No. 55; Dkt.
252, ECF No. 53.
4 The Act as amended can be viewed here: https://perma.cc/454J-P9FG
5 As stated above, Plaintiffs Jensen and Kenney responded to the Motions to
Dissolve when Defendants requested an indicative ruling. 	With the benefit of the
Plaintiffs’ responses to the initial Motions to Dissolve, the Court considers the
motions fully briefed.
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II. 	LEGAL STANDARD
When a party seeks to have a preliminary injunction dissolved, the First
Circuit recently explained that the party seeking dissolution must “demonstrate to
the district court 	that an intervening change in fact or law ‘warrant[ed] the
discontinuation’ of the preliminary injunction[].”
Washington v. United States Dep’t
of Hous. & Urb. Dev., 171 F.4th 473, 488 (1st Cir. 2026) (quoting
Concilio de Salud
Integral de Loiza, Inc. v. Pérez-Perdomo, 551 F.3d 10, 16 (1st Cir. 2008)). “A decision
to
vacate an existing preliminary injunction is . . . the effective equivalent of a
denial
of a preliminary injunction . . .”
	Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15
F.3d 1222, 1228 (1st Cir. 1994). In deciding whether to grant a motion to dissolve a
preliminary injunction, a district court should consider new evidence that emerged
after its original order to determine whether it affects the four-prong preliminary
injunction analysis.
Id.
“To be granted a preliminary injunction, a plaintiff ‘must establish’ that: (1) it
is ‘likely to succeed on the merits;’ (2) it is ‘likely to suffer irreparable harm in the
absence of preliminary relief;’ (3) ‘the balance of equities tips in [its] favor;’ and (4)
‘an injunction is in the public interest.’”
	Doe v. Trump, 157 F.4th 36, 46 (1st Cir.
2025) (quoting
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The third
and fourth factors merge when the Government is the opposing party.
	Does 1-6 v.
Mills, 16 F.4th 20, 37 (1st Cir. 2021).
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III. 	DISCUSSION
In its prior Memorandum and Order, this Court enjoined Defendants “from
enforcing R.I. Gen Laws § 21-28.11-3(3), § 21-28.11-3(23), § 21-28.11-3(34), § 21-
28.11-3(39), and § 21-28.11-10.2(b)(2) and the corresponding Rules and Regulations
adopted by the Cannabis Control Commission.” Dkt. 191, ECF No. 41 at 27. Further,
the Court “[e]njoined [CCC] from proceeding with the current application or licensing
period, including (1) holding the lottery to select applicants, and (2) processing any
applications submitted under the current licensing period, for both Adult-Use and
Social Equity licenses.”
	Id. Now, with the passage of SB 3313, which “excise[d] the
requirements and criteria enjoined by the injunction[,]” Defendants convincingly
argue that there has been “a significant legal change warranting dissolvement of the
preliminary injunction[.]” 	Dkt. 191, ECF No. 50 at 6–7. 	That said, the Court must
evaluate whether the amendments to the Act affect the four-prong preliminary
injunction analysis.
	See Knapp Shoes, Inc., 15 F.3d at 1225 (explaining that
“dissolution should depend on the same considerations that guide a judge in deciding
whether to grant or deny a preliminary injunction in the first place”).
A. 	Likelihood of Success
In granting the preliminary injunction, this Court relied on the First Circuit’s
guidance in
Northeast Patient Group v. United Cannabis Patients and Caregivers of
Maine, 45 F.4th 542, 556 (1st Cir. 2022), to find that Plaintiffs had a likelihood of
success on their Dormant Commerce Clause claim. Dkt. 191, ECF No. 41 at 16–19.
As the Circuit explained,
	Northeast Patient Group mostly considered whether
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Maine’s residency requirement ran afoul of the Dormant Commerce Clause based on
marijuana being illegal under federal law. 	45 F.4th at 546. 	Now that the Act’s
enjoined provisions have been amended, the question before this Court is whether
those amendments render the preliminary injunction moot.
See Town of Portsmouth,
R.I. v. Lewis, 813 F.3d 54, 59 (2016) (noting the Supreme Court “has consistently and
summarily held that a new state statute moots a case”).
The 	Defendants 	argue 	the 	law, 	as 	amended, 	governing 	the 	licensing
application process renders Plaintiff Jensen’s claims moot because “[t]he allegations
in the Complaint all pertain to the prior version of the statute that no longer exists;
none of the allegations pertain to the amended current version of the law.” Dkt. 191,
ECF No. 50 at 15. 	In response, Plaintiff Jensen suggests that the Defendants’
voluntary cessation does not cure the constitutional violations and so the claims are
not moot. Dkt. 191, ECF No. 51 at 8–9. Jensen maintains that the program continues
to violate the Dormant Commerce Clause “[i]f property is required for the new
application program, and the State provides an application period of only a few
months for out-of-state applicants to obtain property[.]”
	Id. at 8. Finally, Jensen
suggests that because the statute was not repealed and a new statutory scheme
created, that the Act’s amended statutes and regulations continue to fall under the
preliminary injunction.
Id. at 8–9. The Defendants have the better argument.
In
Lowe v. Gagné-Holmes, the First Circuit discussed mootness and reiterated
its long-held position that the party raising the issue has the “heavy burden of
showing mootness.” 	126 F.4th 747, 755 (1st Cir. 2025) (cleaned up). 	Discussing
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mootness and Article III’s limitation to “cases” and “controversies,” the Circuit
explained:
The 	doctrine 	of 	mootness 	enforces 	the 	mandate 	that 	an 	actual
controversy must be extant at all stages of the review, not merely at the
time the complaint is filed. [A] case is moot when the issues presented
are no longer live or the parties lack a legally cognizable interest in the
outcome 	.... 	[or] 	the 	court 	cannot 	give any 	effectual 	relief to 	the
potentially prevailing party.
Id. (cleaned up and internal citations omitted). “Dismissal is required where ‘events
have transpired to render a court opinion merely advisory.’”
Id. (quoting
Mangual v.
Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003)). 	That said, there are exceptions to
mootness, and the one Plaintiff Jensen argues applies here is the voluntary cessation
doctrine.
	See Dkt. 191, ECF No. 51 at 8. 	For this doctrine to apply, a party must
show that “‘a defendant voluntar[ily] ceases the challenged practice in order to moot
the plaintiff’s case and there exists a reasonable expectation that the challenged
conduct will be repeated’ after the suit’s ‘dismissal.’”
Lowe, 126 F.4th at 756 (quoting
Boston Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st Cir. 2021)) (alteration and emphasis
in original).
Applied here, the Court finds that the Defendants have carried their “heavy
burden” of showing that Plaintiff Jensen’s claims are moot and that the voluntary
cessation doctrine does not apply. 	Beginning with mootness, Plaintiff Jensen’s
Motion for Preliminary Injunction requested that this Court “issue a preliminary
injunction to prevent Defendants from taking any further steps to enforce R.I. Gen.
Laws § 21-28.11-10.2(b)(2); R.I. Gen. Laws § 21-28.11-3(3); R.I. Gen. Laws § 21-28.11-
3(23); R.I. Gen. Laws § 21-28.11-3(34); R.I. Gen. Laws § 21-28.11-3(39).” 	Dkt. 191,
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ECF No. 9 at 36. That request was premised on the argument that the prior version
of the Act violated both the Dormant Commerce Clause and Equal Protection Clause
because it favored Rhode Island residents over out-of-state residents for adult use
retail and social equity cannabis licenses.
Id. at 13–32. This Court agreed and issued
an injunction consistent with Plaintiff Jensen’s request.
See generally Dkt. 191, ECF
No. 41.
However, as the Defendants explain, “[t]he General Assembly, through the
passage of Senate Bill 3313, has now made the effects of the injunction permanent by
amending the Cannabis Act to remove such [residency] requirements and [social
equity] criteria.” Dkt. 191, ECF No. 50 at 7. Plaintiff Jensen’s two arguments against
mootness— (1) that the application program violates the Dormant Commerce Clause
if property must be secured to apply for a license and (2) that the Act was amended
and not repealed—fail to convince this Court otherwise. Taken in reverse order, that
the Act was amended and not repealed puts form over substance. 	Plaintiff Jensen
cites no authority supporting that repeal is required, and this Court’s focus is on the
substance of the amended Act, not the process by which the General Assembly
codified the effects of the injunction.
As to the first argument, Jensen suggests that the program continues to violate
the Dormant Commerce Clause because property is required for the new application
program and out-of-state applicants may not have enough time to secure such
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property.6 Dkt. 191, ECF No. 51 at 8. This argument fails for many reasons. First,
the property requirement was part of the first version of the Act, went unchallenged
by Plaintiff Jensen, and was left untouched by the General Assembly.
See Dkt. 191,
ECF No. 52 at 6–8. Further, Plaintiff Jensen’s Complaint, which was filed over two
years ago, notes that she intended to apply for a license. Dkt. 191, ECF No. 1 ¶ 26.
In other words, she has had years, not months, to scour the Rhode Island market in
search of a suitable property. 	She has also had at least four months to search for
property since this Court entered its injunction. 	Beyond that, Jensen never sought
to enjoin the property requirement part of the Act and cannot, at this point, seek to
do so in response to a Motion to Dissolve the Injunction. 	Lastly, Jensen relies on
Variscite NY Four, LLC v. New York State Cannabis Control Bd. for the proposition
that “[a] state may violate the dormant Commerce Clause by requiring applicants to
have property to participate in the application program, particularly if the application
program is only open for a matter of months and state residents have reason to obtain
property before the application program is announced.” 	Dkt. 191, ECF No. 51 at 8
(citing 152 F.4th 47, 53 (2d Cir. 2025)). However (and setting aside that this case is
not controlling in this jurisdiction), the Second Circuit rejected this argument, finding
that 	an 	incidental 	burden 	on 	an 	interstate 	marijuana 	market 	is 	not 	“clearly
excessive.”
Variscite NY Four, LLC, 152 F.4th at 65. Contrary to Jensen’s assertion,
6 Despite declaring her intent to apply for a license, ECF No. 10 ¶ 4, the Court
has no information about Jensen’s efforts, or lack thereof, at securing property in
anticipation of applying for an adult-use or social equity cannabis license.
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that same logic dooms her argument that the amended Act continues to violate the
Dormant Commerce Clause.
Turning to Jensen’s voluntary cessation exception argument, Dkt. 191, ECF
No. 51 at 9, the Court concludes it fares no better than the others. The First Circuit
discussed the voluntary cessation exception in
Town of Portsmouth, R.I. v. Lewis, 813
F.3d 54 (1st Cir. 2016). The case involved the Town of Portsmouth’s lawsuit against
state and federal agencies alleging that tolls violated provisions of the Federal-Aid
Highway Act.
Id. The Town filed for summary judgment in November 2013 and the
General Assembly enacted legislation in June 2014 that prohibited toll collection.
Id.
at 58. The Defendants then successfully moved to dismiss all claims as having been
rendered moot by the new statute.
	Id. 	As the appellate court explained, “[b]ecause
the state legislature [] prohibited toll collection, ‘[t]he controversy [] is at this point
neither immediate nor real.’”
	Id. at 59 (quoting
ACLU of Mass v. U.S. Conf. of
Catholic Bishops, 705 F.3d 44, 54 (1st Cir. 2013)). The Circuit rejected the plaintiff’s
reliance on the voluntary cessation exception because “there [wa]s no basis upon
which to conclude that the state legislature repealed the tolls in order to make the
present litigation moot.”
Id.
In this case, there is no evidence that the General Assembly, members of a
wholly different branch of government from these Defendants, amended the Act in
order to moot Plaintiff Jensen’s claims or this injunction.
See Lowe, 126 F.4th at 756.
Further, the First Circuit has endorsed the idea that “[g]enerally, [courts] presume
that a state legislature enacts laws in good faith . . . not with the improper motive of
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mooting pending litigation.”
	Town of Portsmouth, R.I., 813 F.3d at 59 (first citing
Miller v. Johnson, 515 U.S. 900, 916 (1995) then citing
Lamar Advert. of Penn, LLC
v. Town of Orchard Park, New York, 356 F.3d 365, 376 (2d Cir. 2004)). Finally, and
perhaps dispositive of this argument, is the First Circuit’s notation that “although
the Supreme Court has not hesitated to invoke the voluntary cessation exception
when considering the conduct of private, municipal, and administrative defendants,
it has not applied the exception to state legislatures.”
Id. Instead, the Supreme Court
“has consistently and summarily held that a new state statute moots a case, without
further inquiry.
Id. (collecting cases).
To support her contention that the voluntary cessation exception applies here,
Jensen relies on
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982). 	In
that case, a state court ordered the city to issue a license for Aladdin’s Castle to
operate an amusement park, and in issuing the license it reduced an age restriction
(on unaccompanied children in the amusement park) from seventeen to seven.
Id. at
287. 	Then, “less than a month after the city had complied with the state-court
injunction by issuing the license to Aladdin, the city adopted a new ordinance
repealing Aladdin’s exemption, thereby reinstating the 17-year age requirement.”
Id.
In finding that the case was not moot, the Court explained:
In this case the city’s repeal of the objectionable language would not
preclude it from reenacting precisely the same provision if the District
Court’s judgment were vacated. The city followed that course with
respect to the age restriction, which was first reduced for Aladdin from
17 to 7 and then, in obvious response to the state court’s judgment, the
exemption was eliminated. There is no certainty that a similar course
would not be pursued if its most recent amendment were effective to
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defeat federal jurisdiction. We therefore must confront the merits of the
vagueness holding.
Id. at 289. That is different from the facts before this Court because nothing suggests
that the Rhode Island General Assembly would repeal SB 3313 if this Court vacated
the injunction on mootness grounds. 	While this lawsuit may have served as the
catalyst for the General Assembly to reexamine provisions of the Cannabis Act to
help expedite enactment of the law, it cannot be said that the amendments were
passed to moot out this case.
	See Diffenderfer v. Gomez–Colon, 587 F.3d 445, 452
(1st 	Cir. 	2009) 	(holding 	in 	part 	“[new] 	legislation 	is 	generally 	considered 	an
intervening, independent event and not voluntary action, particularly when the
governmental entity taking the appeal, as here, is not part of the legislative branch”).
The General Assembly’s passage of SB 3313 removed provisions deemed likely
to violate the Constitution and because of that, the controversy at issue in the
preliminary injunction is no longer immediate or real. Therefore, Plaintiff Jensen no
longer has a likelihood of success on the merits of her Constitutional claims.
B. 	Remaining Injunction Factors
It is well established that “[t]he
sine qua non of th[e] four-part [preliminary
injunction] inquiry is likelihood of success on the merits.”
	New Comm. Wireless
Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). 	“[I]f the moving party
cannot demonstrate that he is likely to succeed in his quest, the remaining factors
become matters of idle curiosity.”
	Id. 	Based on this, the Court need not examine
irreparable harm, the balance of equities, or the public interest.
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IV. 	CONCLUSION
The Court concludes that the passage of SB 3313 moots out its previous Order
granting Plaintiff Jensen’s request for a preliminary injunction and enjoining various
provisions of the Act. Therefore, the prior preliminary injunction is DISSOLVED and
the Defendants are free to implement the law as they see fit, including accepting
applications, holding a lottery, and issuing adult-use recreational and social equity
cannabis licenses.
IT IS SO ORDERED.
_________________________________
Melissa R. DuBose
United States District Judge
August 14, 2026
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