Missouri Appellate Court hears arguments to open application archives for review

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The Missouri Court of Appeals Western District in Kansas City.

In a quick, 25 minute hearing, judges zeroed in on exactly what application information would be revealed to the public in arguments Monday before the Missouri Court of Appeals Western District over whether a rejected cannabis cultivation applicant should have access to the state’s full archives of cultivation applications. 

“If you say the use permitted by the constitution is the ability to appeal the denial of an application, one could envision the basic information required fairly for that purpose, to establish some inappropriate denial of an application. [It] could be tailored to eliminate names, could be tailored to eliminate a lot of information that wouldn’t have anything to do with providing a competitive edge to the party who is pursuing a claim associated with the denied application,” remarked Appellate Chief Judge Cynthia Martin during proceedings.

The court battle, part of what has become known as the Kings Garden case, but officially known as the State of Missouri v. Commissioner Renee Slusher, is an effort by Kings Garden Midwest, a cannabis applicant who did not receive a winning score during the 2019 application process, to obtain access to the state’s application archives. Kings Garden Midwest is charging that their application had answers that were identical to other applications, but theirs received lower scores than other applications, which would be not allowed, according to the state’s published scoring system.

Kings Garden Midwest’s appeal is currently pending in the state’s Administrative Hearing Commission, before Comm. Renee Slusher, and as part of their appeal, Kings Garden Midwest requested discovery access to the state’s archive of cultivation applications. With access to the archives, Kings Garden Midwest’s attorney would compare the applications and their scores, to demonstrate that the state’s scoring system is broken, and that Kings Garden Midwest should be awarded a cultivation license.

Comm. Slusher awarded Kings Garden the right to discovery last year. But then the State of Missouri appealed to the circuit court, arguing that Missouri Constitutional Amendment XIV, which created medical marijuana licenses, guaranteed confidentiality of the applications, so the state doesn’t have to hand them over. Kings Garden Midwest’s attorneys argued back that confidentiality guarantees don’t cover court proceedings.

Circuit Court Judge Jon Beetem agreed with Kings Garden Midwest, writing in his decision that, “the confidentiality provisions set forth in subsection 5 cannot apply to the discovery process during appeals of denied applicants. To ascribe that meaning to section 5 would deprive the applicants of the right to full and meaningful appeal.” 

So, Monday Missouri and Kings Garden Midwest met in the Appellate Court for oral arguments after submitting extensive written briefs.

In line with his written briefs, attorney James Layton, of Tueth Keeney Cooper Mohan & Jackstadt, appearing on behalf of the state, argued that Kings Garden would garner confidential information from the applications that could be used in Missouri and other states. And besides, when voters approved the referendum creating Amendment XIV, they had a clear understanding of the word “confidential”.

“What we’re talking about with confidentiality, is the meaning of, not lawyers, what they might have thought, but what the voters thought,” said Layton. “‘If they didn’t actually say it was not protected in discovery, it doesn’t mean it was not protected in discovery.’ That’s ascribing a knowledge to the layperson I don’t think you can ascribe to them.”

For his part, Joshua Hill of Newman, Comley & Ruth, representing Kings Garden Midwest, hammered away at the idea that discovery in court cases is often provided for confidential documents, like bank records. And even so, under these circumstances, Kings Garden was not interested in all applications, just application sections that scored higher than their own. On top of that, the Administrative Hearing Commissioner had awarded a protective order that would black out names and other irrelevant information from the applications reviewed.

“There is no limit on discovery of documentation in that provision of the constitution,” argued Hill. “The state throughout its appeal has never once claimed the information sought by my client, Kings Garden Midwest, is irrelevant. In fact it is the most relevant information. It’s information that’s necessary for them to show an appropriate challenge by the department and to show that it was unfair, arbitrary and capricious.”

The Appellate Court is expected to issue a decision by the end of the month.