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Missouri hides more court info from public than other states

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A Missouri law passed in 2022 deletes the names of victims and witnesses in court documents, which experts say has made Missouri courts the least transparent in the nation.Among the witness names deleted are police officers.Eugene Volokh, a nationally known libertarian legal commentator, called the law “a very serious problem” under the headline “Missouri ‘Stealth Statute’ Requires Redaction of All Witness and Victim Names” in Court Records.”Paul Cassell, a former federal judge and victims rights advocate, said he didn’t know of any law like it in the nation.“I am not aware of any jurisdiction mandating such a broad prohibition on use of names,” he said in an email. “It does seem difficult to justify application of such a rule without narrowing it to circumstances where good reason may well exist for privacy (such as juveniles and sex assault cases).”Charles Mahoney, president and CEO of the Missouri Broadcasters, said he also doesn’t know of another state with such a broad redaction law. His organization is concerned the law could impede journalists’ ability to “report the full truth.”In August, the Missouri Press-Bar Commission sent a detailed letter to the Missouri Supreme Court stating it “has serious concerns about the legality, constitutionality, and practicality of this law, and… requests that the Supreme Court stay its implementation, pending study of those issues.”The court did not issue a stay or respond to the letter. The redaction regime is being implemented not only in court pleadings but also in opinions and court orders.Missouri has become the “State of Unnamed Persons,” wrote Mark Sableman, a partner at Thompson Coburn and media lawyer who has pressed the Missouri Supreme Court to hold back on implementing the law.He pointed out that opinions from the state’s appeals court are filled with status words (e.g., “victim”), relationships (“victim’s sister”; “girlfriend”; “uncle”), initials, professions (“nurse”) and office (“state attorney” and “trial counsel”).“This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers,” Sableman said. “Some recent court opinions mention scores of witnesses—but none of them, except the parties, is named.“The same is true of the names of victims, he said.“They are secret, and do not appear in court decisions” Sableman said. “This applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.”Nameless court decisions The Missouri Supreme Court building in Jefferson City (Annelise Hanshaw/Missouri Independent).Redactions sometimes result in confusing accounts in court opinions, making them hard for the public or outsiders to follow.One recent example is Jolley v. State, handed down by the Missouri Court of Appeals for the Western District on Oct. 31.Gary Jolley, serving a 30-year sentence for physically abusing members of his large family, was claiming he didn’t get adequate legal representation.One paragraph of the decision reads: “On April 29, 2022, an evidentiary hearing was held. S.W., A.B., and C.F. testified. S.W. and A.B., Jolley’s daughters, testified that while Jolley was in jail some of Jolley’s family members who testified against him at trial, including C.D., sold items of Jolley’s property and kept the proceeds. S.W. and A.B. testified that C.D. used up to three years’ worth of Jolley’s social security disability payments for her own use. S.W. and A.B. stated they were never contacted by Jolley’s attorney, but they both would have testified at trial if they were contacted.”Jolley lost the appeal.Police officers are nameless because they are witnesses. A police officer accused of changing his account of a St. Louis shooting is “Officer P” throughout Kurtis C. Watkins v. State of Missouri, a Nov. 28 decision by the Missouri Court of Appeals for the Eastern District.Watkins’ conviction rested almost entirely on “Officer P’s” testimony. The appeals court decision states, “Officer P’s testimony changed between the first and second trials from saying he was not sure that the initial shooter he saw in the alley was (Watkins), to later saying he was sure.”The first trial ended in a mistrial and Watkins was convicted in the second.Watkins alleged “ineffective assistance of trial counsel for failing to call Witness Friend, Witness J, and CoDefendant as witnesses at trial.” The trial counsel, Witness Friend, Witness J and CoDefendant are not named. Witness Friend apparently said he was with Watkins at the time of the shooting and the co-defendant said Watkins wasn’t present for the shooting.Watkins lost his appeal.Another example of the redaction of police officer names is the September 2023 decision of Foltz v. City of St. Louis.Foltz is Officer Zachariah Foltz, a former St. Louis Police Officer fired for refusing to talk to criminal investigators about what he saw in his squad car where he was present when a fellow officer allegedly had a “sexual relationship” with a 12-year-old girl.The officer accused of having the relationship is referred to as Officer SK because of the new redaction law. The names of other police officers who questioned Foltz also were redacted.One passage reads: “Officer Foltz also sent Lieutenant WB an email accusing Lieutenant WB of attempting to push him out of the department because he would not ‘lick your boot’ and sabotaging his attempts to get another job…Major MS terminated Officer Foltz…(stating) failure to cooperate in the criminal investigation violated the Code of Ethics, was contrary to the Department’s purpose of investigating crime and holding people accountable for criminal acts, and suggested to the public that the police department holds its officers to different standards than other citizens.”Critics of the redaction law say that scrubbing court decisions of police officers’ names will make it hard to hold police accountable for wrongdoing.Uncertain origins of lawThe new redaction law grew out of the January 2017 State of the Judiciary address by then-Chief Justice Patricia Breckenridge, who expressed concern that the expansion of the number of court documents available on Case.net, the online repository for court records, would lead to exponentially broader access to information that had existed in the “practical obscurity” of documents being available only at the local courthouse.She noted many statutes governing confidentiality were enacted at a time when “public” meant available in paper form at a clerk’s office, not instantly available to anyone anywhere. She said the court wanted the legislature to have the opportunity to reexamine statutes governing public case documents to determine if they reflect the will of the legislature and the people.The reference to the “practical obscurity” of public records in courthouses comes from language in a 1989 U.S. Supreme Court decision involving the federal Freedom of Information Act. First Amendment lawyers regard the language as inconsistent with a line of First Amendment decisions opening courts and court records to the public.Breckenridge’s call for legislative action was followed by a host of proposals, most of which did not pass immediately.At the end of its 2023 session, the Missouri Legislature passed an omnibus bill covering many issues and including the redaction language, some of which was taken from bills introduced by state Sen. Bill Eigel of Weldon Spring and state Rep. Adam Schnelting of St. Charles.Eigel and Schnelting were responding to a constituent, Kara Elms, who testified at a Feb. 13 hearing of the House Judiciary Committee that a young person’s name should not be in Case.net. Her son had been injured at a summer camp and the family had sued to get his medical expenses covered. She didn’t want her son’s name to be permanently entered in court records because of the mishap.There was no testimony at the hearing relating to the much broader redaction language eventually passed in May that removes the names of adult witnesses and victims.A spokeswoman for Eigel said he was responding to Elms’ concerns about children’s names in court records, but she didn’t know the origins of the broader redaction language. Schnelting refused to respond to repeated requests for comment.The original language of the legislation said nothing about redactions.Sableman writes that it appears the law was “never directly discussed or debated at committee or on the floor of either chamber.” Legislative reference services were not able to provide any record of detailed legislative consideration of the final language.One of the main legal defects in the law, says the Press-Bar Commission, is that it is part of an omnibus bill covering all sorts of subjects. Under the Missouri Constitution, the legislature can only change court rules with “a law limited to the purpose.” An omnibus bill is not a law of limited purpose.Before the law was passed and signed by the governor, redactions were limited to confidential matters relating to family law and juvenile proceedings. But the new law extends “redaction requirements into practically all cases, criminal and civil,” the Press-Bar Commission writes, “multiplying them dramatically, because all criminal cases involve victims whose names would have to be redacted, and practically all cases involve witnesses, whose names and identifying information would have to be redacted.”Among those witnesses whose names are redacted: law enforcement officials, public officials, corporate officers, expert witnesses, doctors, nurses, social workers, pharmacists, attorneys, engineers and prisoners.“The ordinary witness in the ordinary case understands that lawsuits and trials are public proceedings,” wrote the Press-Bar Commission. “Indeed, it is a basic rule of civics, taught when civics education is taught, that our judicial system may command ‘every person’s evidence’ and that it is a civic duty and responsibility for a citizen to testify when needed. Most people consider their actions in satisfying this obligation as a matter of duty and pride, not one of shame.”The Press-Bar Commission also points out that the language of the law specifically states: “The Missouri Supreme Court shall promulgate rules to administer this section.”But it hasn’t promulgated any rules.Support for redaction The ornate interior of the Missouri State Capitol building (Getty Images).Republican state Rep. Justin Hicks of Lake St. Louis has spoken out in favor of the redaction requirement, telling Missouri Lawyers Media that his concern overall is “there is an overabundance of too much personal, identifiable information out there.“This is where we’re trying to claw back on that area,” he said. “However, the new requirements also can mean a lot more work. And, with two sets of regulations that might apply to a given case, exactly what should and should not be included isn’t always clear.”Hicks, though, was recentlycriticized by an opponent in the Republican primary who posted records of a 2010 complaint against Hicks by a woman who said he choked her when he was 17. Hicks is a rising political figure in the Republican Party who received the Freshman of the Year Awards from House Speaker Dean Plocher in May.Hicks’ opponent posted the 2010 restraining order against Hicks. Court orders are among the court documents covered by the 2023 redaction law he supported. Hicks did not mention the 2010 court order when explaining his support for redaction. He could not be reached for comment.Jean Maneke, attorney for the Missouri Press Association, told Missouri Lawyers Media that the increased restrictions will make it more difficult for reporters to confirm the identity of criminal suspects, particularly those with common last names.“I won’t know if the rapist in my neighborhood is 18 or 58,” she said. “And if his name is John Smith, I’m going to have a tough time figuring out who it is.”Court closuresThe objections that the Press-Bar Commission filed against the redaction law come in the context of a growing number of closed court proceedings to which the Missouri Broadcasters and Missouri Press Association have objected.In a Dec. 13, 2022, letter to the Missouri Supreme Court, the two media groups proposed a new rule that would allow court proceedings to be closed only for “compelling” reasons and after a court hearing where the media have a chance to challenge closure.The Missouri Supreme Court has not responded to the year-old letter and proposal.The letter, written by Sableman and Maneke, lays out the legal basis for open court proceedings. The Missouri Constitution provides: “Missouri courts of justice shall be open to every person.” Missouri state law provides, “the sitting of every court shall be public and every person may freely attend same” and “all trials upon the merits shall be conducted in open court.”In addition there is a string of U.S. Supreme Court decisions recognizing First Amendment protection for open courts and court records.Yet the media lawyers cited numerous Missouri cases in which proceedings have been kept from the public:In the case of Spear v. Quinn, Volokh, the libertarian law professor from UCLA who criticized the redaction statute, was denied access to a Missouri case file where a constitutionally questionable order was issued to Google to take down material from the internet.In another case, a family wasfrustratedwhen the case of their sister’s murder was sealed for more than a year before trial, and they were prohibited from speaking about the case in which the killer received what they thought was a meager 20-year sentence.A case claiming police assaulted a customer outside a St. Louis bar, an incident widely publicized, was closed to the public.A St. Louis County judge sealed a lawsuit filed in February 2017 by a former Hazelwood Central High student’s mother who alleged her daughter was sexually assaulted by another student during school. A month after it was filed it vanished from Case.net.A former law partner’s lawsuit against prominent attorney Jerry Schlichter and his law firm was sealed from public view by Judge Jason Sengheiser after Schlichter and his firm argued it contained highly confidential material.The Missouri Supreme Court would not comment on the new redaction law or on correspondence regarding it. Nor would it comment on last year’s letter asking for new protections for open court proceedings.Beth Riggert, the court spokesperson, said the Court welcomes “thoughtful suggestions regarding its rules of practice and procedure.“Such communications are best directed to the clerk,” she said, “who then can ensure the information is directed appropriately and can be considered by the court. Any actions the court may take are expressed through its orders, typically without additional comment.”This story originally appeared in the Gateway Journalism Review.

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Poll: Support for Missouri abortion rights amendment growing

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A proposed constitutional amendment legalizing abortion in Missouri received support from more than half of respondents in a new poll from St. Louis University and YouGov.That’s a boost from a poll earlier this year, which could mean what’s known as Amendment 3 is in a solid position to pass in November.SLU/YouGov’s poll of 900 likely Missouri voters from Aug. 8-16 found that 52% of respondents would vote for Amendment 3, which would place constitutional protections for abortion up to fetal viability. Thirty-four percent would vote against the measure, while 14% aren’t sure.By comparison, the SLU/YouGov poll from February found that 44% of voters would back the abortion legalization amendment.St. Louis University political science professor Steven Rogers said 32% of Republicans and 53% of independents would vote for the amendment. That’s in addition to nearly 80% of Democratic respondents who would approve the measure. In the previous poll, 24% of Republicans supported the amendment.Rogers noted that neither Amendment 3 nor a separate ballot item raising the state’s minimum wage is helping Democratic candidates. GOP contenders for U.S. Senate, governor, lieutenant governor, treasurer and secretary of state all hold comfortable leads.“We are seeing this kind of crossover voting, a little bit, where there are voters who are basically saying, ‘I am going to the polls and I’m going to support a Republican candidate, but I’m also going to go to the polls and then I’m also going to try to expand abortion access and then raise the minimum wage,’” Rogers said.Republican gubernatorial nominee Mike Kehoe has a 51%-41% lead over Democrat Crystal Quade. And U.S. Sen. Josh Hawley is leading Democrat Lucas Kunce by 53% to 42%. Some GOP candidates for attorney general, secretary of state and treasurer have even larger leads over their Democratic rivals.

Brian Munoz

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St. Louis Public RadioHundreds of demonstrators pack into a parking lot at Planned Parenthood of St. Louis and Southwest Missouri on June 24, 2022, during a demonstration following the Supreme Court’s reversal of a case that guaranteed the constitutional right to an abortion.

One of the biggest challenges for foes of Amendment 3 could be financial.Typically, Missouri ballot initiatives with well-funded and well-organized campaigns have a better chance of passing — especially if the opposition is underfunded and disorganized. Since the end of July, the campaign committee formed to pass Amendment 3 received more than $3 million in donations of $5,000 or more.That money could be used for television advertisements to improve the proposal’s standing further, Rogers said, as well as point out that Missouri’s current abortion ban doesn’t allow the procedure in the case of rape or incest.“Meanwhile, the anti side won’t have those resources to kind of try to make that counter argument as strongly, and they don’t have public opinion as strongly on their side,” Rogers said.There is precedent of a well-funded initiative almost failing due to opposition from socially conservative voters.In 2006, a measure providing constitutional protections for embryonic stem cell research nearly failed — even though a campaign committee aimed at passing it had a commanding financial advantage.Former state Sen. Bob Onder was part of the opposition campaign to that measure. He said earlier this month it is possible to create a similar dynamic in 2024 against Amendment 3, if social conservatives who oppose abortion rights can band together.“This is not about reproductive rights or care for miscarriages or IVF or anything else,” said Onder, the GOP nominee for Missouri’s 3rd Congressional District seat. “Missourians will learn that out-of-state special interests and dark money from out of state is lying to them and they will reject this amendment.”Quade said earlier this month that Missourians of all political ideologies are ready to roll back the state’s abortion ban.“Regardless of political party, we hear from folks who are tired of politicians being in their doctor’s offices,” Quade said. “They want politicians to mind their own business. So this is going to excite folks all across the political spectrum.”

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Democrat Mark Osmack makes his case for Missouri treasurer

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Mark Osmack has been out of the electoral fray for awhile, but he never completely abandoned his passion for Missouri politics.Osmack, a Valley Park native and U.S. Army veteran, previously ran for Missouri’s 2nd Congressional District seat and for state Senate. Now he’s the Democratic nominee for state treasurer after receiving a phone call from Missouri Democratic Party Chairman Russ Carnahan asking him to run.“There’s a lot of decision making and processing and evaluation that goes into it, which is something I am very passionate and interested in,” Osmack said this week on an episode of Politically Speaking.Osmack is squaring off against state Treasurer Vivek Malek, who was able to easily win a crowded GOP primary against several veteran lawmakers including House Budget Chairman Cody Smith and state Sen. Andrew Koenig.While Malek was able to attract big donations to his political action committee and pour his own money into the campaign, Osmack isn’t worried that he won’t be able to compete in November. Since Malek was appointed to his post, Osmack contends he hasn’t proven that he’s a formidable opponent in a general election.“His actions and his decision making so far in his roughly two year tenure in that office have been questionable,” Osmack said.Among other things, Osmack was critical of Malek for placing unclaimed property notices on video gaming machines which are usually found in gas stations or convenience stores. The legality of the machines has been questioned for some time.As Malek explained on his own episode of Politically Speaking, he wanted to make sure the unclaimed property program was as widely advertised as possible. But he acknowledged it was a mistake to put the decals close to the machines and ultimately decided to remove them.Osmack said: “This doesn’t even pass the common sense sniff test of, ‘Hey, should I put state stickers claiming you might have a billion dollars on a gambling machine that is not registered with the state of Missouri?’ If we’re gonna give kudos for him acknowledging the wrong thing, it never should have been done in the first place.”Osmack’s platform includes supporting programs providing school meals using Missouri agriculture products and making child care more accessible for the working class.He said the fact that Missouri has such a large surplus shows that it’s possible to create programs to make child care within reach for parents.“It is quite audacious for [Republicans] to brag about $8 billion, with a B, dollars in state surplus, while we offer next to no social services to include pre-K, daycare, or child care,” Osmack said.Here’s are some other topics Osmack discussed on the show:How he would handle managing the state’s pension systems and approving low-income housing tax credits. The state treasurer’s office is on boards overseeing both of those programs.Malek’s decision to cut off investments from Chinese companies. Osmack said that Missouri needs to be cautious about abandoning China as a business partner, especially since they’re a major consumer of the state’s agriculture products. “There’s a way to make this work where we are not supporting communist nations to the detriment of the United States or our allies, while also maintaining strong economic ties that benefit Missouri farmers,” he said.What it was like to witness the skirmish at the Missouri State Fair between U.S. Sen. Josh Hawley and Democratic challenger Lucas Kunce.Whether Kunce can get the support of influential groups like the Democratic Senatorial Campaign Committee, which often channels money and staff to states with competitive Senate elections.

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As Illinois receives praise for its cannabis equity efforts, stakeholders work on system’s flaws

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Medical marijuana patients can now purchase cannabis grown by small businesses as part of their allotment, Illinois’ top cannabis regulator said, but smaller, newly licensed cannabis growers are still seeking greater access to the state’s medical marijuana customers.Illinois legalized medicinal marijuana beginning in 2014, then legalized it for recreational use in 2020. While the 2020 law legalized cannabis use for any adult age 21 or older, it did not expand licensing for medical dispensaries.Patients can purchase marijuana as part of the medical cannabis program at dual-purpose dispensaries, which are licensed to serve both medical and recreational customers. But dual-purpose dispensaries are greatly outnumbered by dispensaries only licensed to sell recreationally, and there are no medical-only dispensaries in the state.As another part of the adult-use legalization law, lawmakers created a “craft grow” license category that was designed to give more opportunities to Illinoisans hoping to legally grow and sell marijuana. The smaller-scale grow operations were part of the 2020 law’s efforts to diversify the cannabis industry in Illinois.Prior to that, all cultivation centers in Illinois were large-scale operations dominated by large multi-state operators. The existing cultivators, mostly in operation since 2014, were allowed to grow recreational cannabis beginning in 2019.Until recently, dual-purpose dispensaries have been unsure as to whether craft-grown products, made by social equity licensees — those who have lived in a disproportionately impacted area or have been historically impacted by the war on drugs — can be sold medicinally as part of a patient’s medical allotment.Erin Johnson, the state’s cannabis regulation oversight officer, told Capitol News Illinois last month that her office has “been telling dispensaries, as they have been asking us” they can now sell craft-grown products to medical patients.“There was just a track and trace issue on our end, but never anything statutorily,” she said.

Dilpreet Raju

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Capitol News IllinoisThe graphic shows how cannabis grown in Illinois gets from cultivation centers to customers.

No notice has been posted, but Johnson’s verbal guidance comes almost two years after the first craft grow business went online in Illinois.It allows roughly 150,000 medical patients, who dispensary owners say are the most consistent purchasers of marijuana, to buy products made by social equity businesses without paying recreational taxes. However — even as more dispensaries open — the number available to medical patients has not increased since 2018, something the Cannabis Regulation Oversight Office “desperately” wants to see changed. Johnson said Illinois is a limited license state, meaning “there are caps on everything” to help control the relatively new market.Berwyn Thompkins, who operates two cannabis businesses, said the rules limited options for patients and small businesses.“It’s about access,” Thompkins said. “Why wouldn’t we want all the patients — which the (adult-use) program was initially built around — why wouldn’t we want them to have access? They should have access to any dispensary.”Customers with a medical marijuana card pay a 1% tax on all marijuana products, whereas recreational customers pay retail taxes between roughly 20 and 40% on a given cannabis product, when accounting for local taxes.While Illinois has received praise for its equity-focused cannabis law, including through an independent study that showed more people of color own cannabis licenses than in any other state, some industry operators say they’ve experienced many unnecessary hurdles getting their businesses up and running.The state, in fact, announced last month that it had opened its 100th social equity dispensary.But Steve Olson, purchasing manager at a pair of dispensaries (including one dual-purpose dispensary) near Rockford, said small specialty license holders have been left in the lurch since the first craft grower opened in October 2022.“You would think that this would be something they’re (the government) trying to help out these social equity companies with, but they’re putting handcuffs on them in so many different spots,” he said. “One of them being this medical thing.”Olson said he contacted state agencies, including the Department of Financial and Professional Regulation, months ago about whether craft products can be sold to medical patients at their retail tax rate, but only heard one response: “They all say it was an oversight.”This potentially hurt social equity companies because they sell wholesale to dispensaries and may have been missing out on a consistent customer base through those medical dispensaries.Olson said the state’s attempts to provide licensees with a path to a successful business over the years, such as with corrective lotteries that granted more social equity licenses, have come up short.“It’s like they almost set up the social equity thing to fail so the big guys could come in and swoop up all these licenses,” Olson said. “I hate to feel like that but, if you look at it, it’s pretty black and white.”Olson said craft companies benefit from any type of retail sale.“If we sell it to medical patients or not, it’s a matter of, ‘Are we collecting the proper taxes?’ That’s all it is,” he said.State revenue from cannabis taxes, licensing costs and other fees goes into the Cannabis Regulation Fund, which is used to fund a host of programs, including cannabis offense expungement, the general revenue fund, and the R3 campaign aiming to uplift disinvested communities.For fiscal year 2024, nearly $256 million was paid out from Cannabis Regulation Fund for related initiatives, which includes almost $89 million transferred to the state’s general revenue fund and more than $20 million distributed to local governments, according to the Illinois Department of Revenue.Medical access still limitedThe state’s 55 medical dispensaries that predate the 2020 legalization law, mostly owned by publicly traded multistate operators that had been operating in Illinois since 2014 under the state’s medical marijuana program, were automatically granted a right to licenses to sell recreationally in January 2020. That gave them a dual-purpose license that no new entrants into the market can receive under current law.Since expanding their clientele in 2020, Illinois dispensaries have sold more than $6 billion worth of cannabis products through recreational transactions alone.Nearly two-thirds of dispensaries licensed to sell to medical patients are in the northeast counties of Cook, DuPage, Kane, Lake and Will. Dual-purpose dispensaries only represent about 20 percent of the state’s dispensaries.While the state began offering recreational dispensary licenses since the adult-use legalization law passed, it has not granted a new medical dispensary license since 2018. That has allowed the established players to continue to corner the market on the state’s nearly 150,000 medical marijuana patients.But social equity licensees and advocates say there are more ways to level the playing field, including expanding access to medical sales.Johnson, who became the state’s top cannabis regulator in late 2022, expressed hope for movement during the fall veto session on House Bill 2911, which would expand medical access to all Illinois dispensaries.“We would like every single dispensary in Illinois to be able to serve medical patients,” Johnson said. “It’s something that medical patients have been asking for, for years.”Johnson said the bill would benefit patients and small businesses.“It’s something we desperately want to happen as a state system, because we want to make sure that medical patients are able to easily access what they need,” she said. “We also think it’s good for our social equity dispensaries, as they’re opening, to be able to serve medical patients.”Rep. Bob Morgan, D-Deerfield, who was the first statewide project coordinator for Illinois’ medical cannabis program prior to joining the legislature, wrote in an email to Capitol News Illinois that the state needs to be doing more for its patients.“Illinois is failing the state’s 150,000 medical cannabis patients with debilitating conditions. Too many are still denied the patient protections they deserve, including access to their medicine,” Morgan wrote, adding he would continue to work with stakeholders on further legislation.Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.

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