CO Supreme Court Releases Open Meetings Law Decision
The court ruled in favor of department of public health and environment

by Julia Cardi

The Colorado Supreme Court released a batch of decisions Tuesday about the Colorado Department of Public Health and Environment, and among them decided an entire agency can’t be a “state public body” according to Colorado’s Open Meetings Law. The holding addresses a dispute over a specific CDPHE policy about referring physicians for investigation by the Colorado Medical Board based on their patterns of certifying patients for medical marijuana, which a group of unnamed physicians claimed violated the sunshine law and Administrative Procedure Act.

In two related opinions, the Supreme Court addressed claims from two physicians that subpoenas issued to investigate their practices under the policy didn’t have lawful purposes because they arose from an illegally adopted policy. Two Court of Appeals panels previously came to opposite decisions.

Justice Richard Gabriel wrote all three opinions. The main case, Doe v. Colorado Department of Public Health and Environment, also decided the policy isn’t subject to the APA’s rule making requirements, and the referrals of the physicians aren’t subject to judicial review under the APA.

“…We conclude that the CDPHE, as a state agency, is not a ‘state public body’ under the OML, and therefore the Doctors have not established that the CDPHE violated the OML when it adopted the Referral Policy,” Gabriel wrote.

Running through all three cases is a policy the CDPHE implemented in order to have criteria for referring physicians to the Colorado Medical Board for investigation, prompted by a group of physicians who had unusually high rates of certifying patients for medical marijuana. The department adopted the policy without any public meetings or hearings.

The Denver District Court agreed with the physician John Does that the policymaking process violated the Open Meetings Law and granted their summary judgment motion to find the policy void. But the Court of Appeals ultimately overturned the district court in the John Does’ case. The panel reversed the summary judgment decision, finding the CDPHE isn’t a “state public body” subject to the Open Meetings Law.

And in the pair of cases against the Colorado Medical Board, physicians James Boland and Scott McLaughlin said subpoenas issued by the board to investigate their practices as a result of referrals from the CDPHE under the policy should be void because the policy was adopted illegally.

Two Court of Appeals panels made opposite decisions, and released them the same day on March 22, 2018, while the John Does’ case was still pending in the Court of Appeals. One agreed with McLaughlin and reversed the Denver District Court’s enforcement of the subpoena. The other panel sided with the Colorado Medical Board, and upheld enforcement of the subpoena for Boland’s records. So the Supreme Court reversed the decision in favor of McLaughlin and uphold the court’s decision in Boland’s case.

Based on the findings in the main case that the CDPHE didn’t violate the OML or APA when it adopted its policy, the Supreme Court found in favor of the Colorado Medical Board in the two companion cases.

“For this reason alone, we necessarily reject Scott McLaughlin’s argument that the investigative subpoena lacked a lawfully authorized purpose because it was based on a policy that violated the OML and the APA,” Gabriel wrote in Colorado Medical Board v. McLaughlin. “Even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, however, we still would conclude that the Board’s investigative subpoena had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose.”

The language of the Open Meetings Law covers meetings between two or more members of any “state public body” at which they discuss public business or may take formal action. In turn, the law’s definition of a state public body includes “any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency.”

This language is where the Supreme Court jumps into the minute analysis of specific statutory words and phrases that is the signature of appellate courts. The phrase “of any state agency,” Gabriel wrote,” modifies the specific types of bodies that come right before the phrase. He reasoned if the definition did not include the “of any state agency” language, “the provision would define ‘state public body’ to include any board, committee, or commission regardless of whether these bodies had any connection to the state,” he wrote.

Doe v. CDPHE presented something of a mismatch between the question the Supreme Court agreed to hear and the issue at the heart of the case. The court granted cert on whether the CDPHE is a “state public body” subject to the Open Meetings Law, but that framing seems to imply the law would either apply or not apply to the department as a whole.

But the John Doe physicians didn’t argue the Open Meetings Law should apply to anything that happens at the CDPHE, such as employees discussing developments among themselves outside a formal setting. At the heart of the dispute is a whether the CDPHE’s process for adopting the specific policy violated the Open Meetings Law and Administrative Procedure Act.