Court Opinions – Nov 18, 2019

Consistent with a medical marijuana policy developed by the Colorado Department of Public Health and Environment after receiving input from staff of the Colorado Medical Board, the CDPHE referred John Does 1–9 to the board for investigation of unprofessional conduct regarding the certification of patients for the use of medical marijuana. 

The doctors then filed an action, contending, among other things, that the referral policy was void because it was developed in violation of the Colorado Open Meetings Law and both the referral policy and the referrals to the board constituted final agency actions under the State Administrative Procedure Act, and the CDPHE did not follow the procedures outlined therein, rendering both the Referral Policy and the referrals void. 

Having not prevailed on these arguments in the Court of Appeals, the doctors renewed their contentions in the Supreme Court. The court concluded that an entire state agency cannot be a “state public body” within the meaning of the Open Meetings Law and therefore the doctors have not established that the CDPHE violated the law; the referral policy is an interpretive rather than a legislative rule and falls within an exception to the APA and was not subject to the APA’s rulemaking requirements; and the act of referring the doctors to the board did not constitute final agency action and therefore was not reviewable under the APA. 

The court rejected the respondent’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. The Supreme Court affirmed the judgment of the Court of Appeals. 

 

 

Colorado Medical Board v. McLaughlin 

Scott McLaughlin is a physician licensed to practice medicine in Colorado. As part of his practice, he evaluates patients to see if they have a qualifying condition that would benefit from the use of medical
marijuana.

In May 2014, the Colorado Department of Public Health and Environment implemented Medical Marijuana Policy No. 2014-01, referred to as the referral policy, which provides that the CDPHE will use its statistical reviews of physician medical marijuana recommendations to determine whether reasonable cause exists to refer a physician to the Colorado Medical Board for investigation. The CDPHE referred McLaughlin to the board for investigation. The board served a subpoena on McLaughlin, ordering him to produce his complete medical records for certain identified patients, and informed McLaughlin that this subpoena was part of an investigation into his medical marijuana recommendations for a possible violation of the Colorado Medical Practice Act. 

The board further advised McLaughlin that its investigation was based on a complaint that the board had received about him from the CDPHE pursuant to the referral policy. 

McLaughlin refused to comply with the subpoena, arguing that the referral policy was adopted in violation of the Colorado Constitution, the State Administrative Procedure Act and the Open Meetings Law.  

The Supreme Court was asked to determine whether an investigative subpoena issued by the Board can have a lawfully authorized purpose if the investigation was prompted by a complaint made by the CDPHE pursuant to a policy that violated the OML or the APA. 

Consistent with Doe v. Colorado Department of Public Health & Environment, the court concluded that the CDPHE, as a state agency, is not a “state public body” under the OML and therefore could not violate that statute and the CDPHE did not violate the APA in developing the policy at issue or in referring doctors to the board under that policy. For this reason alone, the court rejected 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. 

Even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, however, the Supreme Court concluded 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. 

Accordingly, the court reversed the judgment of the division and remanded for further proceedings. 

Boland v. Colorado Medical Board 

In this companion case to Colorado Medical Board v. McLaughlin, the court was again asked to determine whether an investigative subpoena issued by the Colorado Medical Board can have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment pursuant to a policy that violated the OML or the state APA.

The court concluded that because the CDPHE, as a state agency and not a “state public body,” could not violate the Open Meetings Law and did not violate the APA in developing the policy at issue or in referring doctors to the board under that policy, the petitioner’s argument was unpersuasive. 

Even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, however, the Supreme Court concluded 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. 

Accordingly, the court affirmed the judgment of the division and remanded for further proceedings. 

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