Ex parte Alabama Medical Cannabis Commission PETITION FOR WRIT OF MANDAMUS (In re: Jemmstone Alabama, LLC v. Alabama Medical Cannabis Commission) (Montgomery Circuit Court: CV-23-901800).

Rel: October 4, 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
SPECIAL TERM, 2024
________________________

CL-2024-0463
________________________

Ex parte Alabama Medical Cannabis Commission

PETITION FOR WRIT OF MANDAMUS

(In re: Jemmstone Alabama, LLC

v.

Alabama Medical Cannabis Commission)

(Montgomery Circuit Court: CV-23-901800)

On Application for Rehearing

PER CURIAM.

The opinion of August 23, 2024, is withdrawn, and the following is

substituted therefor.

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

petitioned this court to issue a writ of mandamus ordering the
CL-2024-0463

Montgomery Circuit Court ("the circuit court") to dismiss case number

CV-23-901800, a civil action commenced by Jemmstone Alabama, LLC,

and to vacate a temporary restraining order that, it alleges, was not

entered in that case. We grant the petition in part and deny the petition

in part.

Background

The AMCC is the state agency charged with administering the

Wesley "Ato" Hall Compassion Act ("the Act"), Ala. Code 1975, § 20-2A-1

et seq., which regulates the Alabama medical-cannabis industry. See

Redbud Remedies, LLC v. Alabama Med. Cannabis Comm'n, [Ms. CL-

2023-0352, Mar. 29, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024). The

AMCC is composed of 14 members and employs an executive director and

an assistant director. See Ala. Code 1975, § 20-2A-20. Among other

duties, the AMCC is responsible for licensing integrated facilities. 1 See

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.
2
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Ala. Code 1975, § 20-2A-50 et seq. The decision to grant or to deny an

application for an integrated-facility license is made by a majority vote of

the members of the AMCC present and voting at a meeting. See § 20-2A-

20(h).

Jemmstone applied to the AMCC for one of five available

integrated-facility licenses. 2 Through a series of meetings, culminating

with a meeting on December 12, 2023, the AMCC, by the vote of its

members, awarded the integrated-facility licenses to applicants other

than Jemmstone. On December 27, 2023, Jemmstone commenced a civil

action in the circuit court ("the Jemmstone action"), pursuant to Ala.

Code 1975, § 41-22-10,3 a part of the Alabama Administrative Procedure

"(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."

2Section 20-2A-67(b) provides: "[The AMCC] may issue no more
than five integrated facility licenses."

3Section 41-22-10 provides:

3
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Act ("the AAPA"), Ala. Code 1975, § 41-22-1 et seq., requesting a

judgment declaring that the integrated-facility-licensing decisions made

by the AMCC through its members were void and requesting an

injunction to prevent any action to enforce those licensing decisions; that

civil action was assigned case number CV-23-901800.

In the caption of the complaint filed in the Jemmstone action,

Jemmstone named the AMCC as the sole defendant. In the body of the

complaint, however, Jemmstone indicated that it was also suing the

individual members of the AMCC in their official capacities and

identified each member by name and instructed the circuit-court clerk to

serve the AMCC's members. The summons provided that the AMCC's

"The validity or applicability of a rule may be
determined in an action for a declaratory judgment or its
enforcement stayed by injunctive relief in the circuit court of
Montgomery County, unless otherwise specifically provided
by statute, if the court finds that the rule, or its threatened
application, interferes with or impairs, or threatens to
interfere with or impair, the legal rights or privileges of the
plaintiff. The agency shall be made a party to the action. In
passing on such rules the court shall declare the rule invalid
only if it finds that it violates constitutional provisions or
exceeds the statutory authority of the agency or was adopted
without substantial compliance with rulemaking procedures
provided for in this chapter."
4
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members could be served by certified mail addressed to the office of the

AMCC's executive director. See Ala. Code 1975, § 20-2A-20(l).4

On December 29, 2023, the circuit court granted Jemmstone's

motion to consolidate the Jemmstone action with case number CV-23-

231; the circuit court had previously designated case number CV-23-231

to be the "master case" for administering the mass litigation arising out

of the AMCC's integrated-facility-licensing process. On January 3, 2024,

the circuit court entered a temporary restraining order in the master case

("the TRO"), stating as a preamble to the order that "[t]his [d]ocument

[a]lso [r]elates to ... [the Jemmstone action]." The TRO purports to enjoin

the AMCC and its members from "taking any action in furtherance of

December 12, 2023[,] awards of licenses in the Integrated Facility license

category, including without limitation the issuance of any licenses."

4Section 20-2A-20(l) provides:

"In any action or suit brought against the members of the
commission in their official capacity in a court of competent
jurisdiction, to review any decision or order issued by the
commission, service of process issued against the commission
may be lawfully served or accepted by the director on behalf
of the commission as though the members of the commission
were personally served with process."

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On March 6, 2024, the AMCC and the AMCC's members filed a

motion to dismiss the master case and the Jemmstone action. The AMCC

and the AMCC's members argued that the master case should be

dismissed as a void proceeding because the circuit court lacked subject-

matter jurisdiction over a civil action commenced against only the

AMCC, which, they argued, was immune from suit due to State or

sovereign immunity. See Art. I, § 14, Ala. Const. 2022 ("That the State

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

equity."). As to the Jemmstone action, the AMCC and the AMCC's

members asserted that that civil action was also a void proceeding due to

the doctrine of State or sovereign immunity, contending that the AMCC

was the only named defendant in the Jemmstone action because

Jemmstone had not included the names of the AMCC's members in the

caption of the complaint as required by Rule 10(a), Ala. R. Civ. P. 5

In the motion to dismiss, the AMCC and the AMCC's members also

moved the circuit court to vacate the TRO. The AMCC and the AMCC's

members primarily argued that the TRO was invalid because it was

5Rule 10(a) provides, in pertinent part, that "[i]n the complaint the

title of the action shall include the names of all the parties ...."
6
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entered in void proceedings, i.e., the master case and the Jemmstone

action. Alternatively, the AMCC and the AMCC's members contended

that, even if the Jemmstone action was not a void proceeding, the TRO

had not been entered in that case pursuant to Rule 58(c), Ala. R. Civ. P.

On May 16, 2024, the circuit court denied the motion to dismiss. In

its order denying the motion to dismiss, the circuit court determined that

Jemmstone had properly named the members of the AMCC as co-

defendants in the body of the complaint filed in the Jemmstone action,

thereby invoking the subject-matter jurisdiction of the circuit court. The

circuit court also concluded that the TRO had been entered in the

Jemmstone action so that it was effective, thereby denying the motion to

vacate that order. On June 20, 2024, the AMCC, but not the AMCC's

members, 6 filed a petition for the writ of mandamus challenging the May

16, 2024, order. 7

6The caption of the petition identifies only the AMCC as "the
petitioner" and, in the body of the petition, only the AMCC argues for and
requests mandamus relief. Rule 21(b), Ala. R. App. P., provides, in
pertinent part, that "[a]ll parties below other than the petitioner shall
also be deemed respondents for all purposes."
7We conclude that the petition is timely because it challenges the

jurisdiction of the circuit court to maintain the Jemmstone action and to
enforce the TRO in that action. See Ex parte K.R., 210 So. 3d 1106, 1112
(Ala. 2016).
7
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Issues

The AMCC argues that the circuit court erred in denying its motion

to dismiss the Jemmstone action for lack of subject-matter jurisdiction

and in denying its motion to vacate the TRO.

Standard of Review

"A petition for a writ of mandamus is the appropriate
means to review the denial of an administrative agency's
motion to dismiss a complaint in a circuit court for lack of
subject-matter jurisdiction. See Ex parte Builders &
Contractors Ass'n of Mississippi Self-Insurer's Fund, 980 So.
2d 1003, 1006 (Ala. Civ. App. 2007) (mandamus review of
denial of motion to dismiss for lack of subject-matter
jurisdiction)."

Ex parte Alabama Medicaid Agency, 298 So. 3d 522, 523-24 (Ala. Civ.

App. 2020). A petition for the writ of mandamus may also be used to

review a motion to vacate a temporary restraining order. See Ex parte

Hurst, 914 So. 2d 840 (Ala. 2005).

We apply the following standard of review to the agency's petition:

" ' Mandamus is a drastic and extraordinary
writ, to be issued only where there is (1) a clear
legal right in the petitioner to the order sought; (2)
an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the
lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court.' "

8
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Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003)

(quoting Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).

Analysis

The Motion to Vacate the TRO

As this court has previously determined, the AMCC, as a state

agency, is immune from suit pursuant to Article I, § 14, of the Alabama

Constitution of 2022, which provides that "[t]he State of Alabama shall

never be made a defendant in any court of law or equity" and establishes

the doctrine of State or sovereign immunity. See Redbud Remedies, LLC

v. Alabama Med. Cannabis Comm'n, [Ms. CL-2023-0352, Mar. 29, 2024]

___ So. 3d ___ (Ala. Civ. App. 2024). This immunity extends to civil

actions for declaratory and injunctive relief brought pursuant to Ala.

Code 1975, § 41-22-10.8 See Ex parte Alabama Med. Cannabis Comm'n,

[Ms. CL-2024-0073, June 21, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024).

8Sovereign immunity does not preclude the AMCC from being
named as a respondent in an administrative appeal under Ala. Code
1975, § 41-22-20. See Verano Alabama, LLC v. Alabama Med. Cannabis
Comm'n, [Ms. CL-2023-0831, Apr. 19, 2024] ___ So. 3d ___, ___ n.7 (Ala.
Civ. App. 2024). Section 41-22-20(k), Ala. Code 1975, authorizes a circuit
court to grant appropriate equitable relief in an administrative appeal.
Nothing in our opinion should be construed as addressing the power of a
circuit court to grant injunctive relief pursuant to § 41-22-20(k).

9
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As such, the circuit court lacked the power to issue an injunction against

the AMCC in the Jemmstone action, and, to the extent that the TRO

purports to enjoin the AMCC, the TRO is void. 9 See Ex parte Alabama

Dep't of Hum. Res., 999 So. 2d 891, 898 (Ala. 2008) (holding that order

entered by Mobile Circuit Court purporting to enjoin the Department of

Human Resources was void because of doctrine of sovereign immunity).10

The AMCC has a clear legal right to an order vacating the TRO insofar

as it purports to enjoin the AMCC, but that relief could not be granted in

the Jemmstone action. As the AMCC argued to the circuit court, the TRO

was not entered in the Jemmstone action on January 3, 2024.

Rule 58(c), Ala. R. Civ. P., governs the procedure for entry of an

order or judgment and provides, in pertinent part:

"Upon rendition of an order or a judgment as provided in
subdivision (a)(1-4) of this rule [i.e., Rule 58, Ala. R. Civ. P.],

9We express no opinion as to the propriety of the injunction against

the AMCC's members, who have not petitioned this court for mandamus
relief.
10The AMCC did not argue this point to the circuit court or to this

court in its petition for the writ of mandamus, but this court is bound to
recognize when a trial court lacks subject-matter jurisdiction, and we are
not limited to the arguments of a petitioner in deciding that point. See
Ex parte Thompson Tractor Co., 227 So. 3d 1234, 1239 (Ala. Civ. App.
2017); see also Ex parte Progressive Specialty Ins. Co., 31 So. 3d 661, 663
n.2 (Ala. 2009).

10
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the clerk shall forthwith enter such order or judgment in the
court record. An order or a judgment shall be deemed 'entered'
within the meaning of these Rules and the Rules of Appellate
Procedure as of the actual date of the input of the order or
judgment into the State Judicial Information System. An
order or a judgment rendered electronically by the judge
under subdivision (a)(5) of this rule shall be deemed 'entered'
within the meaning of these Rules and the Rules of Appellate
Procedure as of the date the order or judgment is
electronically transmitted by the judge to the electronic-filing
system."

On January 3, 2024, the circuit court input the TRO into the State

Judicial Information System ("the SJIS") only in case number CV-23-231,

i.e., the master case, and did not input the TRO into the SJIS for the

Jemmstone action. See Kornegay v. Kornegay, 369 So. 3d 1052, 1061

(Ala. Civ. App. 2022) (holding that the entry of an order in the SJIS under

one case number did not qualify as an entry of the order in a related case).

In its order denying the motion to vacate the TRO, the circuit court

reasoned that it had intended for the TRO to be entered in the

Jemmstone action, as indicated by its statement in the TRO that the TRO

"relates" to the Jemmstone action. However, Rule 58(c) was designed to

establish a singular and unambiguous method for entry of an order or

judgment. See Committee Comments to Amendment to Rule 58 Effective

September 19, 2006. An order or judgment may be entered in a case

11
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pursuant to Rule 58(c) only by being input into the SJIS for that case.

Kornegay, supra. A court does not effectively enter an order or judgment

in a case by referencing the style of that case in its order or judgment or

by inputting the order or judgment in the SJIS of another case. See Ex

parte Peake, 357 So. 3d 1192 (Ala. Civ. App. 2021) (holding that a

judgment with a caption containing the style of two different cases was

effectively entered in only one of the cases because the judgment was

input into the SJIS of only that one case). We, thus, conclude that the

TRO was not entered in the Jemmstone action within the meaning of

Rule 58(c).

The fact that the Jemmstone action was consolidated with the

master case does not alter the analysis.

"[A] trial court may specify that all filings be made in only
one case, see Rule 42(a), Ala. R. Civ. P. (indicating that, once
actions are consolidated, a trial court 'may make such orders
concerning proceedings therein as may tend to avoid
unnecessary costs or delay'). However, and most pertinent to
the present petition, although consolidated, 'each action
retains its separate identity and thus requires the entry of a
separate judgment.' League [v. McDonald, 355 So. 2d 695,
697 (Ala. 1978)] (emphasis added). Therefore, judgments or
orders must be entered separately in each consolidated case
in order to resolve the issues in each case."

12
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Ex parte Glassmeyer, 204 So. 3d 906, 908-09 (Ala. Civ. App. 2016) (second

emphasis added).

When the AMCC filed its motion to vacate the TRO in the

Jemmstone action, the TRO had been entered in only the master case.11

Accordingly, the AMCC could obtain relief from the TRO only by filing the

appropriate motion in the master case.12 The AMCC could not move the

circuit court to vacate the TRO in the Jemmstone action in which the order

had not yet been entered. Accordingly, although the circuit court erred in

concluding that the TRO had been entered in the Jemmstone action, it did

not err in ultimately denying the AMCC's motion to vacate the TRO, which

was improperly filed in that case. We, therefore, deny the petition for the

writ of mandamus insofar as it requests an order compelling the circuit

court to grant its motion to vacate the TRO.

11The parties have informed this court that the circuit court
subsequently entered the TRO in the Jemmstone action on June 26, 2024.
The AMCC has filed an appeal and a petition for the writ of mandamus
challenging the TRO and the order leading to the entry of the TRO in the
Jemmstone action. In ruling on this petition, we address only the
propriety of the May 16, 2024, order entered in the Jemmstone action.
12On July 11, 2024, the circuit court vacated the TRO entered in the

master case.
13
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Motion to Dismiss for Lack of Subject-Matter Jurisdiction

In its mandamus petition, the AMCC argues that the complaint

filed in the Jemmstone action did not invoke the subject-matter

jurisdiction of the circuit court because the AMCC was the lone defendant

named in the caption of the complaint and the only defendant properly

served with summons. "[W]hen a State agency is the sole defendant in a

complaint, the circuit court in which the complaint is filed lacks subject-

matter jurisdiction over the complaint ...." Ex parte Wilcox Cnty. Bd. of

Educ., 285 So. 3d 765, 783 (Ala. 2019). A circuit court that lacks

jurisdiction over an action against a lone state agency that is immune

from suit due to State or sovereign immunity must dismiss the action as

being void ab initio. See Ex parte Alabama Peace Officers' Standards &

Training Comm'n, 275 So. 3d 527 (Ala. 2018). However, the immunity of

a state agency does not apply only when it is named as the lone defendant

in a complaint. When a complaint names multiple defendants, including

an immune state agency, the circuit court lacks subject-matter

jurisdiction over the claims against the state agency, which must be

dismissed as a party to the case. See Alabama Dep't of Transp. v. Harbert

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Int'l, Inc., 990 So. 2d 831, 841 (Ala. 2008), abrogated on other grounds by

Ex parte Moulton, 116 So. 3d 1119 (Ala. 2013).

In this case, the AMCC and the AMCC's members moved the circuit

court to dismiss the Jemmstone action in its entirety. The circuit court

denied that motion, reasoning that, despite the AMCC's members having

been omitted from the caption of the complaint, they were properly

included as defendants in the Jemmstone action and, thus, the circuit

court had subject-matter jurisdiction over the case. The AMCC now

petitions this court to enter an order compelling the circuit court to

dismiss the Jemmstone action, including the claims against the AMCC's

members. However, the AMCC is a distinct entity separate from its

members, and, in mandamus proceedings, a petitioner cannot assert the

rights of third parties. See Ex parte Izundu, 568 So. 2d 771, 772 (Ala.

1990). The AMCC may assert only its own right to a dismissal. Whether

the claims against the AMCC's members should also be dismissed is not

within the scope of these mandamus proceedings.

To dispose of the AMCC's mandamus petition, this court need not

ascertain whether the AMCC's members were properly named in the

complaint and properly served with the complaint. As explained above,

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the AMCC has a clear legal right to be dismissed from the Jemmstone

action, whether it is the lone defendant or one of multiple defendants

along with the AMCC's members, because the circuit court lacks subject-

matter jurisdiction over the claims for declaratory and injunctive relief

that Jemmstone has leveled against the AMCC.

We acknowledge that § 41-22-10 provides that "[t]he agency shall

be made a party to the action." In Prime Lithotripter Operations, Inc. v.

LithoMedTech of Alabama, LLC., 855 So. 2d 1085, 1093 (Ala. Civ. App.

2001), aff'd sub nom. Ex parte State Health Planning & Development

Agency, 855 So. 2d 1098 (Ala. 2002), this court construed the term

"agency" to refer to the state agency that promulgated the rule challenged

in the action commenced under § 41-22-10. In Ex parte Alabama State

Board of Chiropractic Examiners, 11 So. 3d 221 (Ala. Civ. App. 2007),

this court further held that claims for declaratory and injunctive relief

under § 41-22-10 against a state agency that had promulgated an

allegedly invalid rule were not barred by Article I, § 14, of the Alabama

Constitution of 1901, which contains the identical language as Article I,

§ 14, of the Alabama Constitution of 2022. However, our supreme court

has since clarified that a state agency may not be made a defendant in

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an action for declaratory and injunctive relief. See Russo v. Alabama

Dep't of Corr., 149 So. 3d 1079, 1081 (Ala. 2014). Thus, in Alabama

Department of Public Health v. Noland Health Services, Inc., 267 So. 3d

873 (Ala. Civ. App. 2018), this court held that a state agency cannot be

sued for declaratory and injunctive relief under § 41-22-10. In a special

writing in Noland Health Services, Inc., Judge Donaldson noted that the

legislature cannot waive sovereign immunity so the language in § 41-22-

10 requiring a state agency to be made a party to the action was invalid.

This court adopted that reasoning in Redbud Remedies, supra, when we

ruled that sovereign immunity barred an action commenced under § 41-

22-10 against the AMCC. Now, the law is clear that, based on Article I,

§ 14, of the Alabama Constitution of 2022, a state agency cannot be made

a party to an action commenced under § 41-22-10.

Jemmstone argues, however, that the reasoning in Russo, Noland

Health Services, Inc., and Redbud Remedies, has not been applied in a

situation in which a state agency is named as a co-defendant in an action

commenced under § 41-22-10. In all three of those cases, the state agency

was named as the sole defendant and, in each case, it was determined

that the declaratory-judgment action should have been dismissed for lack

17
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of subject-matter jurisdiction because the lone defendant was immune

from suit due to the doctrine of sovereign immunity. Jemmstone posits,

therefore, that, despite the holdings in those cases, a state agency may

be validly named as a co-defendant in an action commenced under § 41-

22-10, a proposition that this court has not directly addressed. See Keith

v. LeFleur, 256 So. 3d 1206 (Ala. Civ. App. 2018) (declining to consider

the issue due to the lack of a legal argument).

We conclude that the plain and unambiguous language of Article I,

§ 14, of the Alabama Constitution of 2022, precludes a state agency from

being named as a co-defendant in an action commenced under § 41-22-

10. Section 14 specifically states that "[t]he State of Alabama shall never

be made a defendant in any court of law or equity," which means exactly

what it says, see City of Bessemer v. McClain, 957 So. 2d 1061 (Ala. 2006)

(holding that plain meaning of constitutional provision cannot be

ignored), and, thus, the state, including its agencies, may not be made a

defendant in any capacity in a civil action. As our supreme court held in

Alabama Department of Transportation v. Harbert International, Inc., in

an action in which a state agency is improperly joined as a co-defendant,

the state agency must be dismissed as a party to the case because of

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sovereign immunity. To the extent that § 41-22-10 could be read as

allowing a state agency to be named as a co-defendant, that

interpretation conflicts with Article I, § 14. "When the Constitution and

a statute are in conflict, the Constitution controls ...." Parker v. Amerson,

519 So. 2d 442, 446 (Ala. 1987). Thus, the AMCC is not a valid party to

the underlying action.

The dismissal of the AMCC as a co-defendant does not necessarily

deprive the circuit court of jurisdiction over the Jemmstone action. An

action commenced under § 41-22-10 may be maintained solely against

the AMCC's members. See Hancock v. Buckner, 50 So. 3d 1083, 1085

(Ala. Civ. App. 2010) (holding that the absence of a state agency did not

deprive the trial court of subject-matter jurisdiction over an action

commenced under § 41-22-10 that named the appropriate state official as

the defendant). Thus, the validity of the underlying action does not

depend on the presence of the AMCC, but, instead, turns solely on the

question of whether Jemmstone properly identified and served the

AMCC's members, an issue we leave undecided in this case for the

reasons set forth above.

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Because sovereign or State immunity precludes the AMCC from

being a party to an action commenced under § 41-22-10, the circuit court

should have dismissed the AMCC from the Jemmstone action, and its

failure to do so warrants mandamus relief. Therefore, we grant the

petition in part and order the circuit court to enter an order dismissing

the AMCC as a party to the Jemmstone action.13

Conclusion

We grant the AMCC's petition for the writ of mandamus in part and

order the circuit court to dismiss the AMCC as a party to the Jemmstone

action. We also deny the petition insofar as it seeks an order compelling

the circuit court to vacate the TRO, which was not pending in the

Jemmstone action when the circuit court entered the May 16, 2024,

order.

APPLICATION OVERRULED; OPINION OF AUGUST 23, 2024,

WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED IN

PART AND DENIED IN PART; WRIT ISSUED.

All the judges concur.

13We express no opinion on the effect of the dismissal of the AMCC

as a party to the Jemmstone action on any of its other pending appeals
or petitions for the writ of mandamus arising out of that case.
20