‘I don’t think that’s democracy.’ Judge blocks media access to Michigan marijuana hearings

Viridis Laboratories collects cannabis samples to be tested for potency and purity in June 2021 at Michigan Pure Med in Marshall, Michigan.Mike Mulholland file photo | MLive.com

Michigan’s largest-ever marijuana recall is at the center of a court matter that the public is forbidden from attending.

The case focuses on Cannabis Regulatory Agency accusations that Viridis Laboratories, one of the largest marijuana safety testing labs in the state, produced inaccurate test results related to potentially harmful contaminants, and inflated THC potency data. Viridis has denied the claims and filed its own lawsuit against the CRA, accusing the regulator of abusing its power and unfairly targeting the safety lab.

Related: Lab fights back after becoming focus of $230 million recall

The dispute is before Administrative Law Judge Stephen Goldstein, who in his Feb. 16 scheduling order said “all hearings in this matter shall be closed to the public and all media sources.”

There was no explanation for the decision. MLive’s request to cover the hearings has been denied.

Hearings were held May 15 and 16 and are scheduled for Tuesday, May 23, and Wednesday, May 24.

Judges don’t typically close court hearings to the public without a request from one or both of the parties; administrative court hearings involving government agencies are open to the public.

“Without having the proceedings being published, it’s possible a lot of things may remain hidden from public view and I don’t think that’s democracy,” said marijuana insider Rick Thompson, who is the executive director of the National Organization for the Reform of Marijuana Laws (NORML) of Michigan,

Attorney General Dana Nessel’s office is representing the CRA.

“We did not request that the hearings be closed to the media, but we defer to the tribunal on this issue,” AG spokesman Danny Wimmer said. “The tribunal has the legal authority to regulate the course of the hearing.”

Viridis CEO Greg Michaud said the lab “supports public access to these hearing” but is abiding to the rules and procedures set by the judge.

“We believe there should be a full public accounting and transparency around the CRA’s actions leading up to the botched recall of 2021 and after,” Michaud said. “Unfortunately, the state has fought tooth and nail to keep relevant evidence under wraps every step of the way.”

Spokesman David Harns said the CRA “has always valued transparency with our cannabis industry stakeholders and that will continue to be the case now and into the future.”

Lisa McGraw, who lobbies for government transparency and access on behalf of the Michigan Press Association, said the court decision to close the hearings “doesn’t pass the transparency smell test.”

“The answer is vague,” she said. “They’re doing the people’s work, so why can’t the people see what it is?”

Furthermore, McGraw said this deals with consumer protection issues that are of public interest.

“We’re paying them to do the job,” she said, “so we should be able to know how they do the job.”

Related: Historic marijuana recall tied to 18 health complaints

The Michigan Office of Administrative Hearings and Rules employs administrative law judges tasked with, among other duties, administering “contested hearings” when there is a dispute between a licensee and a regulatory agency. In this case, the CRA and Viridis. While the hearings are conducted similar to those in civil, criminal and probate courts -- there’s a judge, witnesses, evidence and attorney statements -- the court records are handled differently. It’s difficult to learn what cases the administrative court is hearing, since there is not public access online or designated record’s office with a public access terminal to review cases.

Many administrative hearings, at least since the coronavirus pandemic began, have been conducted remotely using Zoom. MLive has requested and received media access for multiple other previous contested hearings.

In addition to the public health aspects of the case, Thompson said this is also a matter of government transparency.

“In my opinion, anytime a private citizen or a corporation sues the government for misdeeds, we should be able to view those proceedings,” Thompson said. “Otherwise, how else will we know exactly in which areas the government was deficient?

“This whole case stems around accusations that numbers that appear on cannabis labels are not accurate and from a consumer perspective, that’s hugely important.”

Related: Super potent weed spurs distrust

The CRA recalled an estimated $230 million of marijuana products tested by Viridis in November 2021 after an audit revealed Viridis labs cleared product that was subsequently found to be contaminated with aspergillus, a potentially harmful mold that can cause lung infection. Other audit findings included allegations Viridis didn’t use incubation logs, which are necessary to properly determine yeast and mold contamination. Another CRA complaint said Viridis testing accounted for a disproportionately high number of THC potency results when compared to other labs.

Related: Controversial Michigan marijuana testing lab says potency results are legit.

Viridis has claimed its testing methods are proprietary and revealing details could harm its business.

While administrative hearings are public, they’re rarely attended, said attorney David A. Kallman who regularly represents clients at administrative hearings.

“For 40 years I’ve been doing administrative hearings and I’m struggling to remember even one time when anybody from the public or media was even there,” Kallman said. “My gut reaction would be: they should be open to the public. It’s a public body. It’s involving issues that are of interest to the public ... I’m really kind of shocked at it.”

An attorney representing the Michigan Press Association, of which MLive is a member, said the judge has wide discretion to close hearings.

Goldstein in his order barring media cited Michigan law, which states, the “administrative law judge may exercise discretion with regard to the exclusion of parties, their attorneys or authorized representatives or other persons, and may adjourn hearings when necessary to avoid undue disruption of the proceedings.”

The judge also referenced Michigan Office of Administrative Hearings and Rules Media Coverage and Equipment Use During Administrative Hearing Policy that says: “the presiding Judge has the discretion to admonish anyone who disrupts proceedings, and to order the removal of anyone who does not comply with the tribunal’s request for proper hearing room behavior.”

It’s not clear how the presence of the public or media, when the hearing is conducted remotely via conference call and Zoom, even allows for undue disruption or disruptive behavior.

“Depending on how the Zoom is set up, even if you did start shouting out questions or something like that, the person running the Zoom could just mute you or boot you out of the room,” said McGraw. “So they have almost more control in that situation than they would have in a courtroom.”

McGraw said government transparency is an “overall problem that we have in this state.

“We’re looking so bad, nationwide, transparency-wise, right now,” she said.

MLive has sent a letter to the presiding judge asking him to reconsider his media ban on future hearings in the case and has filed a pending Freedom of Information Act request for audio recordings of the closed hearings.