Ex parte Alabama Medical Cannabis Commission (In re: Alabama Always, LLC v. Alabama Medical Cannabis Commission)(Montgomery Circuit Court: CV-23-231).

Rel: June 21, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
________________________

CL-2024-0073
________________________

Ex parte Alabama Medical Cannabis Commission

PETITION FOR WRIT OF MANDAMUS

(In re: Alabama Always, LLC

v.

Alabama Medical Cannabis Commission)

(Montgomery Circuit Court: CV-23-231)

PER CURIAM.

The Alabama Medical Cannabis Commission ("the AMCC") has

petitioned this court to issue a writ of mandamus directed to the
CL-2024-0073

Montgomery Circuit Court ("the circuit court") compelling the circuit

court to vacate two orders that it entered in case number CV-23-231 on

January 3 and January 30, 2024, respectively. We dismiss the petition

as moot.

Background

In 2021, the Alabama Legislature passed the Darren Wesley "Ato"

Hall Compassion Act ("the Act"), Ala. Code 1975, § 20-2A-1 et seq. The

Act establishes the AMCC as a state agency with the primary

responsibility for awarding and issuing licenses relating to the

production of medical cannabis within Alabama. See Ala. Code 1975, §

20-2A-20, § 20-2A-22(b), and § 20-2A-50. In 2022, the AMCC made an

"initial offering" of the various medical-cannabis licenses authorized by

the Act, see § 20-2A-50(a) (providing, in pertinent part, that "licenses

shall be granted to integrated facilities, as well as to independent entities

in the following categories: Cultivator, processor, dispensary, secure

transporter, and testing laboratory"), and solicited applications for those

licenses.

On June 12, 2023, the AMCC initially awarded all the medical-

cannabis licenses available in the initial offering; however, the AMCC

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rescinded those awards. On August 10, 2023, the AMCC made a second

attempt at awarding all the available licenses, but it also rescinded those

awards. On December 1 and December 12, 2023, the AMCC again

awarded all the available licenses. Alabama Always, LLC ("Alabama

Always"), applied for one of the five available integrated-facility licenses,

see Ala. Code 1975, § 20-2A-67(b),1 but the AMCC did not award Alabama

Always a license at any point.

On June 22, 2023, after the AMCC's first attempt to award all the

available licenses, Alabama Always commenced a civil action against the

1Section 20-2A-67(a), Ala. Code 1975, provides:

"An integrated facility license authorizes all of the following:

"(1) The cultivation of cannabis.

"(2) The processing of cannabis into medical
cannabis, including proper packaging and labeling
of medical cannabis products.

"(3) The dispensing and sale of medical
cannabis only to a registered qualified patient or
registered caregiver.

"(4) The transport of cannabis or medical
cannabis between its facilities.

"(5) The sale or transfer of medical cannabis
to a dispensary."
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AMCC by filing in the circuit court a complaint seeking declaratory and

injunctive relief pursuant to § 41-22-10, Ala. Code 1975, a part of the

Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, §

41-22-1 et seq., and the Alabama Open Meetings Act, Ala. Code 1975, §

36-25A-1, et seq. The complaint named solely the AMCC as a defendant.

Alabama Always sought a judgment declaring that the AMCC had

invalidly awarded the medical-cannabis licenses by using unauthorized

and unlawful procedures. Alabama Always requested that the circuit

court enjoin the issuance of the licenses and require the AMCC to

reconsider the awards utilizing what it believed was the proper

procedure.

The clerk of the circuit court assigned case number CV-23-231 to

the complaint filed by Alabama Always. Subsequently, the circuit court

entered orders in case number CV-23-231 to allow numerous parties to

intervene in the case. On September 12, 2023, the circuit court

designated case number CV-23-231 as "the master case" for processing

multiple actions that had been commenced and were pending against the

AMCC in that court. The circuit court subsequently entered orders

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consolidating the various cases involving the AMCC with the master

case.

On November 29, 2023, Alabama Always dismissed its complaint

against the AMCC, without prejudice, based on a mediated settlement.

On December 8, 2023, Alabama Always commenced in the circuit court a

second action against the AMCC, which was assigned case number CV-

23-901727. On December 27, 2023, Alabama Always filed a motion in

case number CV-23-901727 to obtain permission to propound discovery

upon the AMCC to determine how the AMCC had formulated its

licensing decisions and whether those decisions had been unlawfully

made in secret meetings in violation of the Alabama Open Meetings Act.

On that same date, Insa Alabama, LLC ("Insa"), another unsuccessful

medical-cannabis-license applicant who had earlier intervened in the

master case, filed a similar motion in the master case. On January 3,

2024, the AMCC filed an objection to the motions for discovery, but the

circuit court entered an order in the master case on that same date

permitting limited discovery ("the January 3 order").

On January 5, 2024, the AMCC filed a motion in the master case

requesting that the circuit court reconsider the January 3 order; it also

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moved the circuit court to enter a protective order limiting the scope of

discovery. On January 9, 2024, Alabama Always filed an amended

complaint in the master case. While the AMCC's January 5 motions were

pending, the circuit court entered an order in the master case on January

13, 2024, allowing Jemmstone Alabama, LLC ("Jemmstone"), Bragg

Canna of Alabama, LLC ("Bragg"), and Verano Alabama, LLC ("Verano"),

which were other unsuccessful medical-cannabis-license applicants and

parties which had intervened in the master case or had brought their own

actions against the AMCC, to join in discovery. On January 23, 2024, the

AMCC filed a supplemental motion in the master case to include a motion

to dismiss all the complaints that had been filed against it and to expand

on its motion to reconsider and its motion for a protective order. On

January 30, 2024, the circuit court entered an order in the master case

denying the AMCC's motion to dismiss, motion to reconsider, and motion

for a protective order ("the January 30 order").

On January 31, 2024, the AMCC filed a petition for the writ of

mandamus in this court. In its petition, the AMCC argues that the circuit

court erred in entering the January 3 and the January 30 orders because,

it says, the claims in the master case should have been dismissed for the

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failure of Alabama Always to exhaust its administrative remedies, see

Ala. Code 1975, § 41-22-20(a), 2 because the requested discovery did not

relate to the pending claims in the master case, see Rule 26, Ala. R. Civ.

P., and because the circuit court did not comply with the preliminary-

hearing requirement of the Alabama Open Meetings Act, see Ala. Code

1975, § 36-25-9.3 Alabama Always, Insa, Jemmstone, Bragg, and Verano,

among others,4 responded to the mandamus petition. On February 5,

2024, most of those entities moved to dismiss the mandamus petition;

this court denied that motion on February 14, 2024.

After reviewing the mandamus petition, this court questioned

whether the January 3 and the January 30 orders had been entered in a

2Section 41-22-20(a), Ala. Code 1975, provides, in pertinent part: "A

person who has exhausted all administrative remedies available within
the agency, other than rehearing, and who is aggrieved by a final decision
in a contested case is entitled to judicial review under [the AAPA]."

3Section 36-25A-9(c), Ala. Code 1975, allows a court to order
discovery in a case alleging a violation of the Alabama Open Meetings
Act only after a preliminary hearing has been conducted in which the
plaintiff has met the burden of proving that an improper meeting
occurred.

43 Notch Roots, LLC, and Truelieve AL, LLC, which are other
parties to the master case, have also responded to the mandamus
petition.
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void proceeding. It appeared to this court that the circuit court did not

have subject-matter jurisdiction in the master case based on the doctrine

of State or sovereign immunity. On February 29, 2024, this court ordered

the parties to file letter briefs addressing the effect of this court's decision

in Alabama Department of Public Health v. Noland Health Services, Inc.,

267 So. 3d 873 (Ala. Civ. App. 2018) (holding that a circuit court lacks

subject-matter jurisdiction to adjudicate a claim for declaratory relief

under § 41-22-10 filed against a state agency entitled to sovereign

immunity), on our jurisdiction over the AMCC's mandamus petition. The

parties filed responsive letter briefs on March 7, 2024.

On March 11, 2024, this court entered a stay of the mandamus

proceedings in this court pending the outcome of any motions to dismiss

that had been filed in the master case. On May 16, 2024, the circuit court

entered an order resolving several motions seeking dismissal of several

of the complaints that had been filed in the master case. On May 17,

2024, the parties, as ordered by this court, filed letter briefs addressing

the effect of the circuit court's May 16, 2024, order on this court's

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jurisdiction over the petition for the writ of mandamus filed by the

AMCC. 5

Analysis

Article I, § 14, of the Alabama Constitution of 2022 provides "[t]hat

the State of Alabama shall never be made a defendant in any court of law

or equity." "The wall of immunity erected by § 14 is nearly impregnable."

Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002). The

sovereign immunity established in § 14 extends to the arms and agencies

of the state, see Ex parte Tuscaloosa Cnty., 796 So. 2d 1100, 1103 (Ala.

2000), and "affords the State and its agencies an 'absolute' immunity

from suit in any court," Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala.

2004) (citing Ex parte Mobile Cnty. Dep't of Hum. Res., 815 So. 2d 527,

530 (Ala. 2001)). As a state agency, the AMCC is immune from being

named as a defendant in a court of law or equity pursuant to § 14 of our

state constitution.

5On May 3, 2024, this court also ordered the parties to file letter

briefs regarding an April 1, 2024, order entered by the circuit court
dismissing the amended complaint filed by Alabama Always in the
master case. The parties' letter briefs also addressed that order.
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In this case, Alabama Always commenced the master case by filing

a complaint naming the AMCC as the lone defendant. That complaint

did not invoke the jurisdiction of the circuit court.

"The jurisdictional bar of § 14 simply 'preclud[es] a court from
exercising subject-matter jurisdiction' over the State or a
State agency. Lyons v. River Road Constr., Inc., 858 So. 2d
257, 261 (Ala. 2003). Thus, a complaint filed solely against the
State or one of its agencies is a nullity and is void ab initio. Ex
parte Alabama Dep't of Transp. (In re Russell Petroleum, Inc.
v. Alabama Dep't of Transp.), 6 So. 3d 1126 (Ala. 2008) .... Any
action taken by a court without subject-matter jurisdiction --
other than dismissing the action -- is void. State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1029 (Ala. 1999)."

Alabama Dep't of Corr. v. Montgomery Cnty. Comm'n, 11 So. 3d 189, 191-

92 (Ala. 2008).

In Redbud Remedies, LLC v. Alabama Medical Cannabis

Commission, [Ms. CL-2023-0352, Mar. 29, 2024] ___ So. 3d ___ (Ala. Civ.

App. 2024), this court, relying heavily on Alabama Department of Public

Health v. Noland Health Services, Inc., supra, held that the doctrine of

sovereign immunity precludes the filing of a complaint against the AMCC

for declaratory and injunctive relief pursuant to § 41-22-10 of the AAPA.

We likewise hold in this case that the doctrine of sovereign immunity

precludes the filing of a complaint against the AMCC for declaratory and

injunctive relief under the Alabama Open Meetings Act. "[B]y virtue of
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said § 14, under no circumstances and in no sort of suit can the State ever

be made a defendant in any court ...." Boaz Nursing Home, Inc. v.

Recovery Inns of America, Inc., 289 Ala. 144, 147, 266 So. 2d 588, 590

(1972). Apparently out of recognition of the doctrine of sovereign

immunity, § 36-25A-9(a) of the Alabama Open Meetings Act provides that

a complaint seeking relief under that statute "shall name in their official

capacity all members of the governmental body remaining in attendance

at the alleged meeting held in violation of [Title 36, Chapter 25A]."

As noted, Alabama Always did not name the individual AMCC

commissioners in its original complaint. Alabama Always did attempt to

amend its complaint on October 6, 2023, to name, as additional

defendants, the individual commissioners in their official capacities, but

that amendment was ineffective to remedy the jurisdictional defect in the

original complaint. A purported amendment to a complaint that is

barred by the doctrine of sovereign immunity is itself a nullity. Alabama

Dep't of Corr. v. Montgomery Cnty. Comm'n, 11 So. 3d at 193 (" 'A defect

in subject matter jurisdiction cannot be cured by reissuance of process,

passage of time, or pleading amendment.' " (quoting Porter v.

Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 427 (2008))).

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Accordingly, the original complaint remained unchanged and was subject

to the jurisdictional bar of sovereign immunity.

"This constitutionally guaranteed principle of sovereign immunity,

acting as a jurisdictional bar, precludes a court from exercising subject-

matter jurisdiction. Without jurisdiction, a court has no power to act and

must dismiss the action." Alabama State Docks Terminal Ry. v. Lyles,

797 So. 2d 432, 435 (Ala. 2001). When an action is barred by the doctrine

of sovereign immunity, any orders entered by the court other than an

order of dismissal are void. See Redbud, ___ So. 3d at ___. A court

without subject-matter jurisdiction over a civil action cannot enter any

valid orders allowing other parties to intervene in the action or providing

for consolidation of the action with other cases. See Solomon v. Liberty

Nat'l Life Ins. Co., 953 So. 2d 1211, 1222 (Ala. 2006). Thus, we conclude

that the purported joinder of other parties and claims in the master case

through invalid intervention orders was ineffective and that the

purported consolidation of other cases with the master case 6 did not alter

6At any rate, a valid consolidation order does not change the nature

of the consolidated cases because each case maintains its separate
identity. " ' "[I]n consolidated actions ... the parties and pleadings in one
action do not become parties and pleadings in the other." ' Ex parte
Flexible Prods. Co., 915 So. 2d 34, 50 (Ala. 2005) (quoting Teague v.
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the nature of the master case in any manner that would overcome the

action being barred by the doctrine of sovereign immunity.

In Ex parte Cooper, [Ms. SC-2023-0056, Aug. 25, 2023] ___ So. 3d

___ (Ala. 2023), our supreme court considered a petition for the writ of

mandamus filed by John R. Cooper, in his official capacity as the Director

of the Alabama Department of Transportation ("ALDOT"). In the

underlying action, the Baldwin County Bridge Company, LLC ("BCBC"),

filed suit against Cooper seeking an injunction halting construction of a

bridge that ALDOT had hired Scott Bridge Company, Inc., to build over

the Intracoastal Waterway in Baldwin County. The Montgomery Circuit

Court entered an order compelling Cooper to respond to certain discovery

requests propounded to him by BCBC; however, Cooper asserted, the

ordered responses were protected by executive privilege. Cooper filed a

petition for the writ of mandamus with the Alabama Supreme Court,

which determined that the injunction action against Cooper was barred

by the doctrine of sovereign immunity. The supreme court determined

that, because the doctrine of sovereign immunity precluded the

Motes, 57 Ala. App. 609, 613, 330 So. 2d 434, 438 (Civ. 1976))." Solomon
v. Liberty Nat'l Life Ins. Co., 953 So. 2d 1211, 1222 (Ala. 2006).
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injunction claim and required its dismissal, the discovery order and the

petition for the writ of mandamus arising from the discovery order were

both moot.

In this case, the doctrine of sovereign immunity barred Alabama

Always from commencing the master case against the AMCC. Therefore,

the only valid action that the circuit court could have taken and can take

now is to dismiss the master case. The January 3 and January 30 orders

entered in the master case are void, and the petition for the writ of

mandamus arising from those orders is moot. 7

7In its mandamus petition, the AMCC asserts that, although
Alabama Always filed its motion for discovery in case number CV-23-
901727, the circuit court entered the January 3 and January 30 orders
only in the master case. Therefore, the AMCC filed its mandamus
petition in reference to only the master case. However, the January 30
order indicates on its face that it "relates" to other cases, including case
number CV-23-901727 and case number CV-23-901800, an action
commenced by Jemmstone on December 27, 2023. On April 1, 2024, the
circuit court dismissed case number CV-23-901727 on the motion of
Alabama Always, see Rule 41(a), Ala. R. Civ. P.; if the January 3 and
January 30 orders were entered in that case, the dismissal has rendered
them ineffective. See Ex parte Baumgardner-Pickle, 355 So. 3d 329, 332
(Ala. Civ. App. 2021) (holding that voluntary dismissal returns parties to
original position as if action had never been brought). However, if the
January 3 and January 30 orders were entered in the Jemmstone action
-- case number CV-23-901800 -- which the circuit court found it had in its
May 16, 2024, order -- those orders may be effective in that case. We
express no opinion on that point, however, because the AMCC did not file
a petition for the writ of mandamus directed toward that civil action. See
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Conclusion

Based on Ex parte Cooper, supra, and the foregoing reasoning, we

conclude that the January 3 and January 30 orders entered in the master

case are void orders arising from an action that is barred by the doctrine

of sovereign immunity. We direct the circuit court to dismiss the master

case and to vacate all orders entered in that case including the January

3 and January 30 orders. We dismiss this mandamus petition as moot.

PETITION DISMISSED WITH INSTRUCTIONS.

All the judges concur.

Rule 21(a)(1)(B), Ala. R. App. P. (requiring petitioner to designate the
civil-action number that is the subject of a mandamus petition in the
statement of the case).
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