In the Missouri Court of Appeals Western District
STATE OF MISSOURI ex rel. ) MISSOURI DEPARTMENT OF HEALTH ) and SENIOR SERVICES, ) WD84247 Appellant, ) v. ) ) FILED: May 18, 2021 RENEE T. SLUSHER, Commissioner, ) Administrative Hearing Commission, ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY THE HONORABLE JOHN E. BEETEM, JUDGE
BEFORE DIVISION FOUR: CYNTHIA L. MARTIN, CHIEF JUDGE, PRESIDING, LISA WHITE HARDWICK AND W. DOUGLAS THOMSON, JUDGES
The Missouri Department of Health and Senior Services (“the Department”)
appeals the circuit’s court’s judgment quashing its preliminary writ of prohibition
and denying the Department’s petition for a permanent writ of prohibition. The
Department contends that it cannot be compelled to disclose data submitted by
medical marijuana license applicants because the Missouri Constitution requires it
to keep that information confidential. For reasons explained herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY In November 2018, Missourians, through initiative, enacted Article XIV of
the Missouri Constitution. Article XIV authorizes and regulates medical
marijuana. The article directs the Department to administer the state’s medical
marijuana program, including granting or denying “state licenses . . . for the
cultivation, manufacture, dispensing, sale, testing, tracking, and transportation of
marijuana for medical use as provided by law.” Art. XIV, § 1.3(1)(a). The article
provides for the Department to make available to the public license application
forms to operate medical marijuana cultivation facilities, medical marijuana
testing facilities, medical marijuana dispensary facilities, and medical marijuana-
infused products manufacturing facilities. Art. XIV, §1.3(6).1 The article allows the
Department to restrict the aggregate number of licenses granted in each category
of medical marijuana cultivation, medical marijuana-infused products
manufacturing, and medical marijuana dispensary facilities. Art. XIV, § 1.3(15),
(16), (17).
To evaluate license applicants, 19 CSR 30-95.025(4) directs the Department
to determine whether applicants meet minimum standards described in the
regulation. When more qualified applicants apply than there are available
licenses in a facility category, both the regulation and article provide for the
Department to “use a system of numerically scoring ten (10) additional evaluation
criteria to rank the applications in each such license . . . category against each
1 The article also directs the Department to make available to the public application forms for qualifying patient identification cards, qualifying patient cultivation identification cards, and primary caregiver identification cards. Art. XIV, § 1.3(7).
2 other.” 19 CSR 30-95.025(4); Art. XIV, § 1.3(1)(h). In further discussing how the
numerical scoring of evaluation criteria is to be conducted, the regulation
reiterates that “[e]ach type of facility . . . application will be scored and ranked
against the other applications of the same type.” 19 CSR 30-95.025(4)(C)2.A. The
article and regulation provide that an applicant may appeal the denial of a license
to the Administrative Hearing Commission (“AHC”). Art. XIV, § 1.3(23); 19 CSR
30-95.025(6). After the exhaustion of administrative review, the denial is subject
to judicial review. Id.
Kings Garden Midwest, LLC (“Kings Garden”) applied for two medical
marijuana cultivation facility licenses. The Department denied both applications.
Kings Garden appealed the denials to the AHC. One of the allegations in Kings
Garden’s appeal was that its applications were subjected to an arbitrary and
capricious scoring process in which other applicants received different scores for
answers that were the same or substantially the same as the answers that Kings
Garden submitted. To prove this claim, Kings Garden requested in discovery that
the Department provide complete and unredacted copies of successful cultivation
license applications.
The Department objected to the request, claiming that disclosure of this
information would violate its constitutional mandate to maintain the
confidentiality of information submitted by applicants and licensees. Kings
Garden filed a motion to compel and agreed to limit its request to only those
questions on the successful applications for which Kings Garden did not receive
3 the full 10-point score. AHC Commissioner Renee T. Slusher granted the motion
to compel and ordered the Department to produce substantially all of the
documents that Kings Garden requested. Commissioner Slusher gave the
Department the option to redact applicants’ identifying information. She also
entered a protective order covering the produced documents.
The Department filed a petition for writ of prohibition asking the circuit
court to bar enforcement of Commissioner Slusher’s order compelling it to
produce the information. The circuit court entered a preliminary order in
prohibition ordering Commissioner Slusher to “refrain from all action in the
premises until further order.” After briefing and argument, the court quashed the
preliminary writ and denied the Department’s petition for a permanent writ. The
court stayed the judgment for the later of 40 days or the final resolution of a
timely appeal. The Department appeals.
STANDARD OF REVIEW
When the circuit court issues a preliminary order but later denies a
permanent writ of prohibition, “the proper remedy is an appeal.” State ex rel.
Ashby Road Partners, LLC v. State Tax Comm’n, 297 S.W.3d 80, 83 (Mo. banc
2009). “Prohibition is an original remedial writ brought to confine a lower court to
the proper exercise of its jurisdiction.” Id. (citation omitted). A writ of prohibition
is appropriate to prevent “an abuse of judicial discretion, to avoid irreparable
harm to a party, or to prevent an abuse of extra-jurisdictional power.” Id. (citation
4 omitted). “A writ of prohibition is discretionary, however, and there is no right to
have the writ issued.” Id. (internal quotation marks and citations omitted).
ANALYSIS
In its sole point on appeal, the Department contends that the circuit court
erred in quashing the preliminary writ and denying its petition for a permanent
writ of prohibition because it claims that Commissioner Slusher acted outside of
her authority by compelling the disclosure of the requested applicant data to
Kings Garden. The Department argues that it cannot be compelled to disclose
data submitted by medical marijuana license applicants because the Missouri
Constitution requires it to maintain the confidentiality of that information.
The interpretation of a constitutional provision is a question of law, which
we review de novo. Gerken v. Sherman, 276 S.W.3d 844, 848 (Mo. App. 2009).
“Constitutional provisions are subject to the same rules of construction as statutes
except that consideration should be given to the broader purposes and scope of
constitutional provisions.” Brown v. Morris, 290 S.W.2d 160, 167 (Mo. banc 1956).
In ascertaining the meaning of a constitutional provision, “the court must first
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In the Missouri Court of Appeals Western District
STATE OF MISSOURI ex rel. ) MISSOURI DEPARTMENT OF HEALTH ) and SENIOR SERVICES, ) WD84247 Appellant, ) v. ) ) FILED: May 18, 2021 RENEE T. SLUSHER, Commissioner, ) Administrative Hearing Commission, ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY THE HONORABLE JOHN E. BEETEM, JUDGE
BEFORE DIVISION FOUR: CYNTHIA L. MARTIN, CHIEF JUDGE, PRESIDING, LISA WHITE HARDWICK AND W. DOUGLAS THOMSON, JUDGES
The Missouri Department of Health and Senior Services (“the Department”)
appeals the circuit’s court’s judgment quashing its preliminary writ of prohibition
and denying the Department’s petition for a permanent writ of prohibition. The
Department contends that it cannot be compelled to disclose data submitted by
medical marijuana license applicants because the Missouri Constitution requires it
to keep that information confidential. For reasons explained herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY In November 2018, Missourians, through initiative, enacted Article XIV of
the Missouri Constitution. Article XIV authorizes and regulates medical
marijuana. The article directs the Department to administer the state’s medical
marijuana program, including granting or denying “state licenses . . . for the
cultivation, manufacture, dispensing, sale, testing, tracking, and transportation of
marijuana for medical use as provided by law.” Art. XIV, § 1.3(1)(a). The article
provides for the Department to make available to the public license application
forms to operate medical marijuana cultivation facilities, medical marijuana
testing facilities, medical marijuana dispensary facilities, and medical marijuana-
infused products manufacturing facilities. Art. XIV, §1.3(6).1 The article allows the
Department to restrict the aggregate number of licenses granted in each category
of medical marijuana cultivation, medical marijuana-infused products
manufacturing, and medical marijuana dispensary facilities. Art. XIV, § 1.3(15),
(16), (17).
To evaluate license applicants, 19 CSR 30-95.025(4) directs the Department
to determine whether applicants meet minimum standards described in the
regulation. When more qualified applicants apply than there are available
licenses in a facility category, both the regulation and article provide for the
Department to “use a system of numerically scoring ten (10) additional evaluation
criteria to rank the applications in each such license . . . category against each
1 The article also directs the Department to make available to the public application forms for qualifying patient identification cards, qualifying patient cultivation identification cards, and primary caregiver identification cards. Art. XIV, § 1.3(7).
2 other.” 19 CSR 30-95.025(4); Art. XIV, § 1.3(1)(h). In further discussing how the
numerical scoring of evaluation criteria is to be conducted, the regulation
reiterates that “[e]ach type of facility . . . application will be scored and ranked
against the other applications of the same type.” 19 CSR 30-95.025(4)(C)2.A. The
article and regulation provide that an applicant may appeal the denial of a license
to the Administrative Hearing Commission (“AHC”). Art. XIV, § 1.3(23); 19 CSR
30-95.025(6). After the exhaustion of administrative review, the denial is subject
to judicial review. Id.
Kings Garden Midwest, LLC (“Kings Garden”) applied for two medical
marijuana cultivation facility licenses. The Department denied both applications.
Kings Garden appealed the denials to the AHC. One of the allegations in Kings
Garden’s appeal was that its applications were subjected to an arbitrary and
capricious scoring process in which other applicants received different scores for
answers that were the same or substantially the same as the answers that Kings
Garden submitted. To prove this claim, Kings Garden requested in discovery that
the Department provide complete and unredacted copies of successful cultivation
license applications.
The Department objected to the request, claiming that disclosure of this
information would violate its constitutional mandate to maintain the
confidentiality of information submitted by applicants and licensees. Kings
Garden filed a motion to compel and agreed to limit its request to only those
questions on the successful applications for which Kings Garden did not receive
3 the full 10-point score. AHC Commissioner Renee T. Slusher granted the motion
to compel and ordered the Department to produce substantially all of the
documents that Kings Garden requested. Commissioner Slusher gave the
Department the option to redact applicants’ identifying information. She also
entered a protective order covering the produced documents.
The Department filed a petition for writ of prohibition asking the circuit
court to bar enforcement of Commissioner Slusher’s order compelling it to
produce the information. The circuit court entered a preliminary order in
prohibition ordering Commissioner Slusher to “refrain from all action in the
premises until further order.” After briefing and argument, the court quashed the
preliminary writ and denied the Department’s petition for a permanent writ. The
court stayed the judgment for the later of 40 days or the final resolution of a
timely appeal. The Department appeals.
STANDARD OF REVIEW
When the circuit court issues a preliminary order but later denies a
permanent writ of prohibition, “the proper remedy is an appeal.” State ex rel.
Ashby Road Partners, LLC v. State Tax Comm’n, 297 S.W.3d 80, 83 (Mo. banc
2009). “Prohibition is an original remedial writ brought to confine a lower court to
the proper exercise of its jurisdiction.” Id. (citation omitted). A writ of prohibition
is appropriate to prevent “an abuse of judicial discretion, to avoid irreparable
harm to a party, or to prevent an abuse of extra-jurisdictional power.” Id. (citation
4 omitted). “A writ of prohibition is discretionary, however, and there is no right to
have the writ issued.” Id. (internal quotation marks and citations omitted).
ANALYSIS
In its sole point on appeal, the Department contends that the circuit court
erred in quashing the preliminary writ and denying its petition for a permanent
writ of prohibition because it claims that Commissioner Slusher acted outside of
her authority by compelling the disclosure of the requested applicant data to
Kings Garden. The Department argues that it cannot be compelled to disclose
data submitted by medical marijuana license applicants because the Missouri
Constitution requires it to maintain the confidentiality of that information.
The interpretation of a constitutional provision is a question of law, which
we review de novo. Gerken v. Sherman, 276 S.W.3d 844, 848 (Mo. App. 2009).
“Constitutional provisions are subject to the same rules of construction as statutes
except that consideration should be given to the broader purposes and scope of
constitutional provisions.” Brown v. Morris, 290 S.W.2d 160, 167 (Mo. banc 1956).
In ascertaining the meaning of a constitutional provision, “the court must first
undertake to ascribe to the words the meaning which the people understood them
to have when the provision was adopted.” Mo. Prosecuting Attorneys v. Barton
Cty., 311 S.W.3d 737, 741 (Mo. banc 2016) (citation omitted). We interpret the
words in the constitutional provision “to give effect to their plain, ordinary, and
natural meaning.” Wright-Jones v. Nasheed, 368 S.W.3d 157, 159 (Mo. banc
2012). “[D]ue regard is given to the primary objectives of the provision in issue as
5 viewed in harmony with all related provisions, considered as a whole.” Mo.
Prosecuting Attorneys, 311 S.W.3d at 742 (citation omitted). We “must assume
that every word contained in a constitutional provision has effect, meaning, and is
not mere surplusage.” State v. Honeycutt, 421 S.W.3d 410, 415 (Mo. banc 2013).
The constitutional provision at issue is Article XIV, Section 1.3(5), which
provides:
The department shall maintain the confidentiality of reports or other information obtained from an applicant or licensee containing any individualized data, information, or records related to the licensee or its operation, including sales information, financial records, tax returns, credit reports, cultivation information, testing results, and security information and plans, or revealing any patient information, or any other records that are exempt from public inspection pursuant to state or federal law. Such reports or other information may be used only for a purpose authorized by this section. Any information released related to patients may be used only for a purpose authorized by federal law and this section, including verifying that a person who presented a patient identification card to a state or local law enforcement official is lawfully in possession of such card.
The Department argues that the intent of the voters in enacting this provision was
to mandate that it keep all information filed in medical marijuana license
applications strictly confidential and immune from disclosure under any
circumstances, including, as in this case, in response to a discovery request in the
appeal of a license denial.
To support its argument, the Department relies on State ex rel. Department
of Social Services, Division of Children Services v. Tucker, 413 S.W.3d 646 (Mo.
banc 2013), a case in which the Supreme Court examined whether the Children’s
6 Division could be compelled to produce in discovery information concerning
hotline reports that Section 210.150, RSMo Supp. 2012, mandated be kept
confidential. The Court began its analysis in Tucker by looking at whether any of
the statute’s stated exceptions to its general rule of confidentiality applied. Id. at
647-48. After determining that no exception applied to allow disclosure of the
information, the Court then stated that the statutorily mandated confidentiality “is
not overcome by demonstrating relevance or the absence of a traditional
evidentiary privilege.” Id. at 648. The Court explained that, while “the
confidentiality mandated by section 210.150 does not establish a legal privilege,”
it does mandate that the Children’s Division “keep confidential an entire body of
information.” Id. at 649. Thus, the Court ruled that the information was not
discoverable, and the circuit court abused its discretion in ordering its disclosure.
Id.
The crucial distinction between Tucker and this case is that, while none of
the exceptions to confidentiality set forth in Section 210.150 applied to allow
disclosure of the statutorily mandated confidential information in that case, Article
XIV, Section 1.3(5) expressly allows the constitutionally mandated confidential
information in this case to be “used” for a purpose authorized by the section. The
second sentence of Article XIV, Section 1.3(5) states, “Such reports or other
information may be used only for a purpose authorized by this section.” In that
sentence, “this section” refers to Section 1.3. Subsection (23) of Section 1.3 gives
denied license applicants the right to appeal the Department’s denial to the AHC
7 and, following the exhaustion of administrative remedies, the right to seek judicial
review. Because an appeal to the AHC and the courts is authorized by Section 1.3,
the plain language of Section 1.3(5) allows the confidential information to be used
for the purpose of an appeal of a license denial. Furthermore, because Section
1.3(5) does not limit the use of the information in an appeal of a license denial, the
information is subject to discovery as provided in 1 CSR 15-3.420, the regulation
governing discovery in contested cases before the AHC.
In its appeal to the AHC, Kings Garden is seeking to discover information
from successful applications to prove that its applications were subjected to an
arbitrary and capricious scoring process in which successful applicants received
different scores for answers that were the same or substantially the same as the
answers that Kings Garden submitted. Article XIV, Section 1.3(1)(h) and the
Department’s regulations expressly direct the Department to score and rank
qualified applications against each other to decide which licenses to grant or
deny. Because applications are not judged solely on their own merits but are
ranked competitively against other applications, the only way to determine
whether the Department denied Kings Garden’s applications in an arbitrary or
capricious manner is to compare its applications against information from those
of successful applicants. To interpret Section 1.3(5) as not allowing the discovery
of information from the successful applications in the appeals process would lead
to the unreasonable and absurd result that unsuccessful applicants pursuing an
appeal – and, in turn, the AHC and the courts – would be denied access to
8 information that was an integral part of the Department’s decision to deny their
applications. Without all of the information that formed the basis of the
Department’s decision, no meaningful review of that decision can occur. “Courts
should avoid constructions of the Missouri Constitution that are unreasonable or
would lead to absurd results.” Mo. Chamber of Commerce & Indus. v. Mo. Ethics
Comm’n, 581 S.W.3d 89, 92 (Mo. App. 2019). 2
Because the plain language of Section 1.3(5) allows the confidential
information to be used for purposes of an appeal of the Department’s decision to
deny a license, Commissioner Slusher did not err in granting Kings Garden’s
motion to compel and ordering the production of certain confidential information
pursuant to a protective order.3 Consequently, the circuit court did not err in
denying the Department’s petition for a writ of prohibition. Point denied.
CONCLUSION
The judgment is affirmed.
____________________________________ LISA WHITE HARDWICK, JUDGE
2 The Department contends that allowing denied license applicants to discover information from successful applications in the appeals process will open the door to the disclosure of medical marijuana patients’ confidential information in domestic, personal injury, tort, worker’s compensation, and other cases. We disagree. The use of any of this confidential information in the types of cases cited by the Department would not be for a purpose authorized by Section 1.3, as those cases are not an appeal of the denial of a license, license renewal, or identification card pursuant to Section 1.3(23). Moreover, Section 1.3(5) provides extra protection for the disclosure of patient information, as it expressly states that “[a]ny information released related to patients may be used only for a purpose authorized by federal law and this section.” (Emphasis added.) 3 The Department does not challenge the scope of the order on the motion to compel or the scope of the protective order.
9 ALL CONCUR.