Following up on our January 2024 post discussing the constitutionality of OLCC’s immunity statute in the cannabis regulatory context with some breaking news on the subject. On May 8, 2024, an Oregon Circuit Court judge agreed that the immunity granted by ORS 475C.477 to the employees of Oregon’s cannabis regulatory agencies is unconstitutional, because the operation of the statute would deny the plaintiffs any remedy.
The court held that to deny a remedy to the plaintiffs would violate the Remedy Clause of Article I, Section 10 of Oregon’s Constitution, which provides that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
As far as we are aware, this case represents the first challenge to the immunity statute. And while it’s important to stress that a ruling of one Circuit Court judge isn’t binding on other Circuit Court judges, it can be persuasive to other judges in this state. In any event, the case is likely to be appealed, although it is unclear at the time of this writing whether the state’s lawyers will seek to appeal the ruling immediately or wait until after a trial occurs. A ruling by the Oregon Court of Appeals either affirming or reversing the Circuit Court’s ruling will be binding on all Circuit Court judges.
However, the ruling in this case is likely going to have immediate effects for Oregon’s cannabis industry – at least one judge has signaled that OLCC employees who commit torts while arguably exercising their regulatory authority do not have a get out of court free card. Hopefully, this will make OLCC inspectors and directors more circumspect when they exercise their official functions, and exercise ordinary care not to harm citizens’ rights to their persons, property, and reputation. This ruling underscores the maxim that nobody is above the law.
You can contact Kevin Jacoby at kevin@jacobylawllc.com or schedule a consultation by calling (503) 208-4470.
