Cecil King posted an articleDHSS state regulators cannot keep information from medical marijuana license applications secret see more
Another Legal Blow For DHSS
The Department of Health and Senior Services (DHSS), which regulates Missouri's medical marijuana program was dealt another legal blow in a ruling by the Western District Court of Appeals on Tuesday, May 18, 2021. The court said state regulators cannot keep information from medical marijuana license applications secret.
DHSS wants to keep all data from the medical marijuana applications and the resulting scores of those applicants confidential. The department has maintained that the law passed by voters in 2018, now Article XIV of the Missouri Constitution, ensures the confidentiality of license applicants and licensees information.
Kings Garden Midwest, a California-based cannabis cultivator, is one of the more than 800 denied applicants who have filed lawsuits against DHSS. In their lawsuit they argued the state’s scoring process was “arbitrary and capricious in that other applicants were awarded more points for the same and/or similar answers provided by Kings Garden.”
The company is requesting application information from other successful applicants in their challenge of DHSS' license denial. They hope to prove that DHSS had no basis for denying their license if there were no significant differences to answers on their applications versus other applications from approved licensees.
The Court of Appeals said it would be “unreasonable and absurd” to keep the applications secret from companies trying to determine why their applications to grow, distribute or sell marijuana were denied.
“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,” stated in the court's ruling.
DHSS will continue to fight this ruling all the way to the Missouri Supreme Court.
Lyndall Fraker, Director of Medical Marijuana Regulation in Missouri, estimated to a House panel in March 2021, the department will spend at least $12.4 million fighting legal challenges to applications in the coming year.
House Budget Committee Chairman Cody Smith of Carthage stated the initial license caps imposed by the department has resulted in the subsequent legal challenges and the “staggering” legal fees, higher product prices, and an unfilled demand for cannabis product that encourages the thriving black market. Cody suggested that by issuing more licenses the department could put an end to the ongoing legal costs.
Fraker disagreed during his testimony indicating additional licensees would force the state to spend more to regulate the industry. He also said an overabundant legal supply could create a black market.
Out of the more than 2100 applications received for Missouri's medical marijuana program, a total of 853 administrative appeals had been filed against the state by denied applicants. DHSS indicated that 785 remained unresolved at the beginning of the 4th quarter 2020.
Cecil King posted an articleMissouri Ballot Initiative Process Survives Legislator's Attack see more
Missouri Ballot Initiative Process Survives Legislators' Attack
Missouri's regular spring 2021 legislative session ended May 14, 2021 by sending several bills to Governor Mike Parson's desk for his signature and to be enacted into law.
While the legislative process is one filled with compromises, legislators did come to agreement on preserving 2nd Amendment gun rights in Missouri by not enforcing Federal gun laws, prohibit publishing names of lottery winners, and deregulating metal sales reporting requirements. They did kill funding for the Medicare Expansion initiative that was passed in the November 2020 election by a 53.27% voter approval.
What is most notable for cannabis industry professionals are the bills that were not sent to the Governor. The House started the “War on the Initiative Process” by passing legislation to make citizen-initiated ballot initiatives more difficult, more expensive, and completely unusable by Missouri citizens.
The voter advocacy group Show Me Integrity, who proclaims itself as “a cross-partisan movement for more effective, ethical government of, by, and for the people of Missouri & beyond” worked hard to defeat the proposed ballot bills. Through a supporting coalition of activists across Missouri, they mounted a “Protect the Ballot Initiative: Advocacy Day & Rally” on April 28, 2021 on the steps of the Missouri Capitol.
"Whether you're here for health care or taxes or the fundamental freedom of every Missourian, we all know that the ballot initiative process is the way that we can keep that check on the Legislature to make sure they are doing the will of the people back home," Benjamin Singer, Show Me Integrity's executive director, told the crowd.
Their voices may have been heard in the legislators' chambers because none of the ballot bills advanced. In a report to the Missouri Cannabis Industry Association Board of Directors, Steve Faber, Regulations Chairman reported Rep. Mike Henderson's, (R) District 117 sponsored Bill, HJR 20 was “laid over” by the Senate.
A tactic most used by both chambers is to put bills on the “informal calendar” when they don't gain enough traction to advance through the legislative process. When queried by the MCIA Board about the legal implications and what the term “laid over” means, Faber responded “I have no idea.” The consensus was it could be just another term to describe the place where unwanted bills go to die.
The Missouri House originated the two most egregious bills that would have ended the ballot initiative process in Missouri. In effect, the legislation would shorten the period of time in which you can gather signatures, increase the required number of signatures by more than 40%, and raise the required threshold for votes at the ballot box from a simple majority to a two-thirds supermajority to pass.
Rep. Mike Henderson's, Bill, HJR 20 passed the House with a vote of 111-46 on March 11, 2021. It increased the required number of valid Missouri voter signatures from 8% to 10%. Henderson's bill demanded signatures from all eight congressional districts instead of the existing requirement from just six congressional districts.
Bill HB333 shortened the time people would have to gather signatures, and granted the Attorney General the power to declare a petition unconstitutional without the due process of a court hearing. The Secretary of State would be allowed an unprecedented 150-word summary instead of 50 words to write a potentially biased ballot description about the initiative. If a court finds the Secretary’s language to be illegally misleading, then any signatures gathered before that court decision would be invalidated—punishing citizens for the Secretary’s illegal actions. In addition to these blatant power grabs, HB33 would also charge citizens $500 just for filing a petition.
Missouri's medical marijuana Amendment 2 which passed in 2018 with a 65.59% approval would have never made it into law if these restrictive constitutional amendments were in place. Any future cannabis adult-use citizen initiative may not get on the ballot and pass in 2022 if Missouri Legislators have their way.
The coalition of advocacy groups included the Missouri Voter Protection Coalition, Planned Parenthood Advocates of Missouri, League of Women Voters of Missouri, Missouri NORML, Show Me Integrity, Missouri House Democrats, Missouri Democratic Party Progressive Caucus, Empower Missouri, and PROMO Missouri.