State ex rel. Miss. Dep't of Health & Senior Servs. v. Slusher
| Decision Date | 18 May 2021 |
| Docket Number | WD84247 |
| Parties | STATE OF MISSOURI ex rel. MISSOURI DEPARTMENT OF HEALTH and SENIOR SERVICES, Appellant, v. RENEE T. SLUSHER, Commissioner, Administrative Hearing Commission, Respondent. |
| Court | Missouri Court of Appeals |
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.
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 eachother." 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 receivethe 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.
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. (citationomitted). "A writ of prohibition is discretionary, however, and there is no right to have the writ issued." Id. (internal quotation marks and citations omitted).
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 asviewed 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'sDivision could be compelled to produce in discovery information concerning hotline reports that Section...
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