COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT
CIVIL ACTION NO.: 1981CV03035

)
REVOLUTIONARY CLINICS II, INC., )
)
Plaintiff, )
)
v. )
)
CITY OF CAMBRIDGE, )
)
Defendant. )
)

PLAINTIFF REVOLUTIONARY CLINICS II, INC.’S

MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure and Superior Court

Rule 9A, Plaintiff Revolutionary Clinics II, Inc. (“Rev Clinics”) hereby moves for summary

judgment as to all counts in its Complaint. Summary judgment should be granted in Rev Clinics’

favor, and Defendant City of Cambridge’s Cannabis Business Permitting Ordinance (the

“Ordinance”) should be declared unlawful under the Home Rule Amendment to the

Massachusetts Constitution (see art. 89, § 6, of the Amendments to the Massachusetts

Constitution), because Cambridge’s Ordinance is inconsistent with, and directly conflicts with,

both the laws of the Commonwealth of Massachusetts and the Massachusetts Constitution.

In September 2019, Defendant City of Cambridge enacted the racially-discriminatory

Ordinance that stripped Registered Marijuana Dispensaries (“RMDs”), including Rev Clinics, of

their statutory right to convert their medical-marijuana businesses to co-located medical- and

adult-use businesses on a “priority” and “expedited” basis. The Ordinance bans RMDs from

operating adult-use businesses in the City for at least two years, while simultaneously providing
an exclusive preference during that two-year period to a single category of permit applicant,

known as “Economic Empowerment Applicants,” that is defined by the applicant’s race and

excludes certain races from permit eligibility. Cambridge’s Ordinance is unlawful and violates

the Home Rule Amendment to the Massachusetts Constitution in four fundamental ways, each of

which is an independent basis for declaring the Ordinance illegal.

Specifically, as to the first three constitutional violations, the Ordinance: (1) conflicts

with RMDs’ express statutory rights, granted by the Legislature, to convert their businesses to

co-located medical- and adult-use businesses on a “priority” and “expedited” basis, (2) frustrates

the purpose of G.L. c. 94G and the regulations promulgated thereunder by delaying RMDs’

ability to convert their businesses and by creating a second layer of licensing requirements, and

(3) was adopted in excess of the limited regulatory authority granted to municipalities under G.L.

c. 94G, § 3 for the oversight of adult-use cannabis businesses.

In addition, the Ordinance violates the equal protection clause of the Massachusetts

Constitution (Art. 106) because it determines eligibility for a government benefit (i.e., a local

cannabis permit) on the basis of race, while utterly failing to meet the exacting “strict scrutiny”

test imposed on racially-motived government action, which requires specific showings of: (1)

past discrimination in the subject industry (here, the previously non-existent adult-use cannabis

industry), (2) that the government body seeking to adopt the race-based remedy participated in

the past discrimination, and (3) that the remedy is “narrowly tailored” to the goal of rectifying

the specific historic discrimination by that government entity. See, e.g., Richmond v. J.A.

Croson, Co., 488 U.S. 469 (1989) (holding race-based public contracting scheme violated equal

protection because the city could not identify discrimination in the Richmond construction

industry, or any discrimination in the industry that the city participated in, and the city’s scheme

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was not narrowly tailored toward remedying any specific historic discrimination); Wessmann v.

Gittens, 160 F.3d 790 (1st Cir. 1998) (holding a race-based admissions policy violated equal

protection because defendants failed to identify the alleged discrimination they were seeking to

remedy with adequate specificity and because the remedial policy was far too broad).

This Motion is supported by the Memorandum of Law and Statement of Material Facts

submitted herewith, as well as the Second Affidavit of Keith Cooper and the Affidavits of

Zachary W. Berk, Gregory Waterworth, Codie Sanchez, H. Edward Carr, Jr., Alfred Boylan, and

Jeff MacMonagle, included in the Joint Appendix submitted herewith.

REVOLUTIONARY CLINICS II, INC.,

By its attorneys,

/s/ Joseph D. Lipchitz

Jeffrey S. Robbins (BBO #421910)
Jeffrey.Robbins@saul.com
Joseph D. Lipchitz (BBO# 632637)
Joseph.Lipchitz@saul.com
Zachary W. Berk (BBO #663575)
Zachary.Berk@saul.com
SAUL EWING ARNSTEIN & LEHR LLP
131 Dartmouth Street, Suite 501
Boston, MA 02116
Dated: August 7, 2020 Tel: (617) 723-3300

CERTIFICATE OF SERVICE

I, Zachary W. Berk, hereby certify that on August 7, 2020, the within document was
served upon all counsel of record, pursuant to Superior Court Rule 9A, by e-mail in accordance
with the Supreme Judicial Court’s Order Concerning Email Service in Cases Under Rule 5(b) of
Mass. Rules of Civil Procedure.

/s/ Zachary W. Berk

Zachary W. Berk

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 CERTIFICATION PURSUANT TO SUPERIOR COURT RULE 9C

I, Zachary W. Berk, hereby certify that a Superior Court Rule 9C conference was not held
with regard to this Motion for Summary Judgment because the parties discussed, and agreed to, a
summary judgment briefing schedule with the Court during the July 10, 2020 hearing on
Plaintiff’s Renewed Motion for Preliminary Injunction.

/s/ Zachary W. Berk

Zachary W. Berk

RULE 9A(c) REQUEST FOR HEARING

This Motion has already been scheduled by the Court for hearing on September 24, 2020.
To the extent it remains necessary, Plaintiff Revolutionary Clinics II, Inc. hereby reiterates its
request for a hearing on this Motion pursuant to Superior Court Rule 9A(c)(2) and notes that it
has a presumptive right to a hearing under Superior Court Rule 9A(c)(3).

/s/ Zachary W. Berk

Zachary W. Berk