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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043
0E226 - I31
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
RENEA MURNAHAN-TURNER
Case No. 18 CV 003043
Plaintiff,
Judge Holbrook
v.
STATE OF OHIO BOARD OF
PHARMACY
Defendant
REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS
I. Introduction
Defendant State of Ohio Board of Pharmacy (“the Board”) has asked this Court to grant
judgment against Plaintiff Renea Murnahan-Turner pursuant to Civ. R. 12(C) because Ms.
Murnahan-Turner does not have standing to challenge the medical marijuana dispensary
application process because she did not complete an application. The Board also pointed out that
Ms. Murnahan-Turner does not actually challenge the constitutionality of any statutory
provisions; she is instead asking for the Court to simply rewrite the statute. Finally, the Board
showed that Ms. Murnahan-Turner’s criticisms were inconsistent with what the statutes actually
say
Ms. Murnahan-Turner only provides a substantive response to one of the three defenses
that the Board raised. And even there, Ms. Murnahan-Turner does not directly respond to the
argument against standing — that Ms. Murnhan-Turner failed to complete any applications —
instead she shifts the goalposts. In her complaint, Ms. Murnahan-Turmer asked the Court toFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043
OE226 - I32
block implementation of the entire program until it was remade with the changes that she
wanted. In her response to the motion, Ms. Murnahan-Turner is now apparently happy enough
with the program that she merely just wants this Court to award her five dispensaries. This was
not the relief requested in the complaint. And, even if it was, such a request would be barred by
her failure to comply with the mandatory state process for seeking a license. Nor does her
complaint sufficiently allege facts that she would have qualified, much less that she would have
prevailed in the competitive scoring process.
Ms. Murnahan-Turner simply does not respond to the argument that the courts lack
authority to overrule a statute unless it violates the Ohio or federal constitution. Nor does Ms
Murnahan-Turner respond to the fact that she simply misreads numerous statutes.
IL. Ms. Murnahan-Turner Lacks Standing.
Ms. Murnahan-Turner Has No Direct and Concrete Injury. In the complaint, Ms.
Murnahan-Turner argued, in effect, that she was seeking to rectify what she sees as problems in
House Bill 523 in order to save Ohio “billions of dollars in damage control.” To accomplish this
goal, Ms. Murnahan-Turner wanted the Court to stop the entire licensing process until the entire
program was transferred to the Department of Health and/or the Liquor Control Board, and
numerous other changes would occur.
Tn the complaint, Ms. Murnahan-Turner’s approach was altruistic. In her latest pleading,
not so much. Now she insists that she has standing because she wants the court to award her five
medical marijuana dispensaries — even though she, by her own admission, did not actually
complete any applications nor pay the $5,000 fee per application.
The simple fact is that her request to be awarded five dispensaries was not in the
complaint. It is black-letter law that “standing is to be determined as of the commencement of
suit.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, J 24
2Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043
OE226 - 133
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-571, fn. 5 (1992)). Courts should
disregard “post-filing events that supply standing.” /d. at §26 (quoting 13A Wright, Miller &
Cooper, Federal Practice and Procedure 9, {3531 (2008) (brackets omitted)). Thus, she cannot
obtain standing by citing to a type of relief that was not requested in the complaint.!
Let us be clear, Ms. Murnahan-Turner did not allege in the complaint that she had
completed any applications with the Board to operate any medical marijuana dispensaries. The
opposite is true — Ms. Murnahan-Turner admitted that she did not “complete a single one.”
Complaint at {11
Ms. Murnahan-Turner has not shown that she has suffered any direct or concrete injury
that is different from that suffered by anyone else who did not submit an application to operate a
dispensary
Ms. Murnahan-Turner Has Not Shown Any Plausible Injury. \n the motion for
judgment on the pleadings, the Board noted that Ms. Murnahan-Turner has not alleged facts that
demonstrate “a realistic danger arising from the challenged action.” Hamilton v. Ohio Dept. of
Health, 2015-Ohio-4041, 4 19 (10th Dist.). Ms. Murnahan-Turner’s claim that there would be
“Billions of dollars in damage control” is purely speculative
Ms. Murnahan-Turner has not directly responded to this argument. Instead, she vaguely
insists that many of the applicants who sought dispensaries are really out-of-state entities seeking
to make money in Ohio (which apparently she views as a form of corruption). What Ms.
Murnhan-Turner is really arguing is that the General Assembly should have made different
policy decisions about who would be eligible to operate a medical marijuana dispensary. As
noted in the complaint, this Court lacks authority to overrule a statute unless it finds it to be
’ As will be detailed in the opposition to Ms. Murnahan-Turner’s motion for judgment on the pleadings, Ms.
Murnahan-Turner has not alleged that she meets any of the highly stringent requirements to obtain a medical
marijuana dispensary license.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043
OE226 - I34
unconstitutional
The Relief Will Not Redress The Injury. The Board pointed out that Ms. Murnahan-
Turner’s proposed remedy — “to stop the rules, regulations, eligibility scoring process and
Releasing preliminary list of Dispensaries Medical Marijuana Licenses” — will not redress the
supposed injuries that she identifies
Ms. Murnhan-Turner has not directly responded to this argument, but instead continues to
rail against what she feels are mistakes in the implementation of the medical marijuana program
in Ohio.
Til. Ms. Murnahan-Turner Continues to Misstate Ohio Law and Seeks For This Court
To Overrule Statutes Based Only On Policy Differences.
In the motion for judgment on the pleadings, the Board pointed out that black-letter law
establishes that a court cannot change a statute merely because of policy disagreements; Ms.
Murnahan-Turmer was mixing up what the law actually says with what she thinks would be a
better approach.
In her opposition Ms. Murnahan-Turner revisits policy disputes that were resolved by the
General Assembly. Pharmacists and out-of-state applicants are not forbidden from applying to
operate a medical marijuana dispensary; women are not considered an economically
disadvantaged group. But she does not respond to the fact that she is not raising any
constitutional claims.
In addition, Ms. Murnahan-Turner’s response intermixes what happened with the
Department of Commerce (“Commerce”) and the Board. (Ms. Murnhan-Turner has two lawsuits
against the Commerce pending in Franklin County; with one before Judge O’Donnell (case
Number 18-CV-3042) and one before Judge Frye (18-CV-3043)). So when Ms. Murnahan-
Turner says the state had a scorer with a criminal conviction — that was Commerce, not the0E226 - 135
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043
Board. When Ms. Murnahan-Turner talks about the 200 point grading scale that is also
Commerce. The same is true with her claim that out-of-state residents had an 84 point bonus of
some sort — this argument is both wrong (there was no such bonus) and, regardless, she is
complaining about Commerce
IV. Conclusion
For the foregoing reasons, this Court should grant judgment on the pleadings and dismiss
this action
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
/s HENRY APPEL
HENRY APPEL (0068479)
YVONNE TERTEL (0019033)
Principal Assistant Attorneys General
Health & Human Services Section
30 East Broad Street, 26th Floor
Columbus, Ohio 43215
Phone: (614) 466-8600
Fax: (866) 441-4738
Henry.Appel@ohioattorneygeneral.gov
Yvonne. Tertel@ohioattorneygeneral.gov
Counsel for State of Ohio Board of Pharmacy
CERTIFICATE OF SERVICE
A copy of the foregoing opposition was served upon all counsel of record and pro se
parties by operation of this Court’s electronic filing system:
/s HENRY APPEL
HENRY APPEL (0068479)
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043 0E226 - I31 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO RENEA MURNAHAN-TURNER Case No. 18 CV 003043 Plaintiff, Judge Holbrook v. STATE OF OHIO BOARD OF PHARMACY Defendant REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS I. Introduction Defendant State of Ohio Board of Pharmacy (“the Board”) has asked this Court to grant judgment against Plaintiff Renea Murnahan-Turner pursuant to Civ. R. 12(C) because Ms. Murnahan-Turner does not have standing to challenge the medical marijuana dispensary application process because she did not complete an application. The Board also pointed out that Ms. Murnahan-Turner does not actually challenge the constitutionality of any statutory provisions; she is instead asking for the Court to simply rewrite the statute. Finally, the Board showed that Ms. Murnahan-Turner’s criticisms were inconsistent with what the statutes actually say Ms. Murnahan-Turner only provides a substantive response to one of the three defenses that the Board raised. And even there, Ms. Murnahan-Turner does not directly respond to the argument against standing — that Ms. Murnhan-Turner failed to complete any applications — instead she shifts the goalposts. In her complaint, Ms. Murnahan-Turmer asked the Court toFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043 OE226 - I32 block implementation of the entire program until it was remade with the changes that she wanted. In her response to the motion, Ms. Murnahan-Turner is now apparently happy enough with the program that she merely just wants this Court to award her five dispensaries. This was not the relief requested in the complaint. And, even if it was, such a request would be barred by her failure to comply with the mandatory state process for seeking a license. Nor does her complaint sufficiently allege facts that she would have qualified, much less that she would have prevailed in the competitive scoring process. Ms. Murnahan-Turner simply does not respond to the argument that the courts lack authority to overrule a statute unless it violates the Ohio or federal constitution. Nor does Ms Murnahan-Turner respond to the fact that she simply misreads numerous statutes. IL. Ms. Murnahan-Turner Lacks Standing. Ms. Murnahan-Turner Has No Direct and Concrete Injury. In the complaint, Ms. Murnahan-Turner argued, in effect, that she was seeking to rectify what she sees as problems in House Bill 523 in order to save Ohio “billions of dollars in damage control.” To accomplish this goal, Ms. Murnahan-Turner wanted the Court to stop the entire licensing process until the entire program was transferred to the Department of Health and/or the Liquor Control Board, and numerous other changes would occur. Tn the complaint, Ms. Murnahan-Turner’s approach was altruistic. In her latest pleading, not so much. Now she insists that she has standing because she wants the court to award her five medical marijuana dispensaries — even though she, by her own admission, did not actually complete any applications nor pay the $5,000 fee per application. The simple fact is that her request to be awarded five dispensaries was not in the complaint. It is black-letter law that “standing is to be determined as of the commencement of suit.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, J 24 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043 OE226 - 133 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-571, fn. 5 (1992)). Courts should disregard “post-filing events that supply standing.” /d. at §26 (quoting 13A Wright, Miller & Cooper, Federal Practice and Procedure 9, {3531 (2008) (brackets omitted)). Thus, she cannot obtain standing by citing to a type of relief that was not requested in the complaint.! Let us be clear, Ms. Murnahan-Turner did not allege in the complaint that she had completed any applications with the Board to operate any medical marijuana dispensaries. The opposite is true — Ms. Murnahan-Turner admitted that she did not “complete a single one.” Complaint at {11 Ms. Murnahan-Turner has not shown that she has suffered any direct or concrete injury that is different from that suffered by anyone else who did not submit an application to operate a dispensary Ms. Murnahan-Turner Has Not Shown Any Plausible Injury. \n the motion for judgment on the pleadings, the Board noted that Ms. Murnahan-Turner has not alleged facts that demonstrate “a realistic danger arising from the challenged action.” Hamilton v. Ohio Dept. of Health, 2015-Ohio-4041, 4 19 (10th Dist.). Ms. Murnahan-Turner’s claim that there would be “Billions of dollars in damage control” is purely speculative Ms. Murnahan-Turner has not directly responded to this argument. Instead, she vaguely insists that many of the applicants who sought dispensaries are really out-of-state entities seeking to make money in Ohio (which apparently she views as a form of corruption). What Ms. Murnhan-Turner is really arguing is that the General Assembly should have made different policy decisions about who would be eligible to operate a medical marijuana dispensary. As noted in the complaint, this Court lacks authority to overrule a statute unless it finds it to be ’ As will be detailed in the opposition to Ms. Murnahan-Turner’s motion for judgment on the pleadings, Ms. Murnahan-Turner has not alleged that she meets any of the highly stringent requirements to obtain a medical marijuana dispensary license.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043 OE226 - I34 unconstitutional The Relief Will Not Redress The Injury. The Board pointed out that Ms. Murnahan- Turner’s proposed remedy — “to stop the rules, regulations, eligibility scoring process and Releasing preliminary list of Dispensaries Medical Marijuana Licenses” — will not redress the supposed injuries that she identifies Ms. Murnhan-Turner has not directly responded to this argument, but instead continues to rail against what she feels are mistakes in the implementation of the medical marijuana program in Ohio. Til. Ms. Murnahan-Turner Continues to Misstate Ohio Law and Seeks For This Court To Overrule Statutes Based Only On Policy Differences. In the motion for judgment on the pleadings, the Board pointed out that black-letter law establishes that a court cannot change a statute merely because of policy disagreements; Ms. Murnahan-Turmer was mixing up what the law actually says with what she thinks would be a better approach. In her opposition Ms. Murnahan-Turner revisits policy disputes that were resolved by the General Assembly. Pharmacists and out-of-state applicants are not forbidden from applying to operate a medical marijuana dispensary; women are not considered an economically disadvantaged group. But she does not respond to the fact that she is not raising any constitutional claims. In addition, Ms. Murnahan-Turner’s response intermixes what happened with the Department of Commerce (“Commerce”) and the Board. (Ms. Murnhan-Turner has two lawsuits against the Commerce pending in Franklin County; with one before Judge O’Donnell (case Number 18-CV-3042) and one before Judge Frye (18-CV-3043)). So when Ms. Murnahan- Turner says the state had a scorer with a criminal conviction — that was Commerce, not the0E226 - 135 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 09 4:55 PM-18CV003043 Board. When Ms. Murnahan-Turner talks about the 200 point grading scale that is also Commerce. The same is true with her claim that out-of-state residents had an 84 point bonus of some sort — this argument is both wrong (there was no such bonus) and, regardless, she is complaining about Commerce IV. Conclusion For the foregoing reasons, this Court should grant judgment on the pleadings and dismiss this action Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General /s HENRY APPEL HENRY APPEL (0068479) YVONNE TERTEL (0019033) Principal Assistant Attorneys General Health & Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215 Phone: (614) 466-8600 Fax: (866) 441-4738 Henry.Appel@ohioattorneygeneral.gov Yvonne. Tertel@ohioattorneygeneral.gov Counsel for State of Ohio Board of Pharmacy CERTIFICATE OF SERVICE A copy of the foregoing opposition was served upon all counsel of record and pro se parties by operation of this Court’s electronic filing system: /s HENRY APPEL HENRY APPEL (0068479)