Kenney v. Rhode Island Cannabis Control Commission

• Court: Court of Appeals for the First Circuit
• Decided: November 25, 2025
• Docket: 25-1173
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 25-1173

JOHN KENNEY,

Plaintiff, Appellant,

v.

RHODE ISLAND CANNABIS CONTROL COMMISSION; and KIMBERLY AHERN, in the official capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Melissa R. DuBose, U.S. District Judge]

Before

Gelpí, Lynch, and Howard, Circuit Judges.

Aaron L. Weisman and Pannone Lopes Devereaux & O'Gara LLC on brief for appellant.

Chelsea Baittinger, Special Assistant Attorney General, Rhode Island, and Peter F. Neronha, Rhode Island Attorney General, on brief for appellees.

November 25, 2025 LYNCH, Circuit Judge. This appeal is a companion case

to Jensen v. Rhode Island Cannabis Control Commission (No.

25-1132). It involves a challenge to the district court's

dismissal on ripeness grounds of Kenney's dormant Commerce Clause

challenges to the Rhode Island Cannabis Act ("Act"), R.I. Gen.

Laws § 21-28.11-1, et seq. We refer the reader to our opinion in

Jensen issued on this date. We reverse the district court's

dismissal order and remand for the reasons given in Jensen.

John Kenney, a Florida resident, states that he seeks a

Rhode Island retail cannabis license as a social equity applicant.

His complaint alleges that he is a "social equity recipient under

District of Columbia law," which we take to mean the recipient of

a social equity cannabis license in the District of Columbia, and

that he would otherwise qualify under the Act as a social equity

applicant because he has convictions for nonviolent marijuana

offenses in Maryland and Nevada. Kenney challenges two provisions

of the Act: (1) the Act's requirement that all applicants for

licenses must be Rhode Island residents or business entities with

a principal place of business in Rhode Island and in which at least

fifty-one percent of equity is held by Rhode Island residents, id.

§ 21-28.11-3(3), and (2) the Act's definition of a "social equity

applicant," which allows an applicant to qualify by virtue of a

past conviction "for any offense that is eligible for expungement

under this chapter," id. § 21-28.11-3(39)(ii). As in the Jensen

- 2 - case, Kenney challenges these provisions under the dormant

Commerce Clause, but unlike in Jensen, he does not bring an equal

protection challenge. Kenney claims that the Act bars him from

qualifying as a social equity applicant, despite his past

nonviolent marijuana convictions, because the Act "contemplates

Rhode Island nonviolent marijuana offenses only." Kenney sought

a declaratory judgment that these two provisions violate the

dormant Commerce Clause, and brought his suit against the Rhode

Island Cannabis Control Commission ("Commission"), the body

created by the Act to, inter alia, oversee the licensing of retail

cannabis businesses, id. § 21-28.11-4(a), and Kimberly Ahern, the

Commission's director.

Kenney filed his initial complaint on June 26, 2024, and

he filed an amended complaint on September 25, 2024. Defendants

moved to dismiss the case for failure to state a claim and for

lack of subject matter jurisdiction on November 8, 2024, which

plaintiff opposed. On February 6, 2025, the district court entered

a brief text order dismissing the case on ripeness grounds, holding

that the "Commission ha[d] yet to promulgate [final] rules and

regulations pertaining to retail cannabis business licenses" and

that it "cannot and will not speculate as to when" that would

occur. The three sentences of reasoning in the district court's

order are identical to the district court's dismissal order in the

companion case, Jensen, and the orders were entered on the same

- 3 - day. The district court entered judgment dismissing the action

without prejudice, and Kenney timely appealed the judgment.

On April 11, 2025, the Commission issued final rules and

regulations for retail cannabis business licenses to become

effective on May 1, 2025. In light of that change, in this appeal

Kenney asked that the case be remanded to the district court. This

court denied the motion without prejudice and referred the question

for reconsideration to the merits panel. As the merits panel, we

now hold the district court erroneously dismissed this case on

ripeness grounds, that these claims are not moot, and that the

plaintiff Kenney has standing.

We reverse and remand for prompt consideration and

resolution of the merits of plaintiff's claims of

unconstitutionality of the Act and his claim for declaratory

judgment. We instruct the district court to issue its rulings at

least forty-five days before the date on which the Commission

intends to issue retail licenses pursuant to the Act.

So ordered.

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