The Colorado Supreme Court on Tuesday released a trio of decisions dealing with the Colorado Department of Public Health and Environment. Within the decisions, the court 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 2014 CDPHE policy about how the Colorado Medical Board should refer physicians for investigation based on their patterns of certifying patients for medical marijuana. A group of unnamed physicians claimed the policymaking process violated the sunshine law and Administrative Procedure Act.
In two related opinions, the Supreme Court addressed claims from two physicians that subpoenas issued by the Colorado Medical Board 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, known as Medical Marijuana Policy No. 2014-01, without any public meetings or hearings.
The Denver District Court agreed with the John Doe physicians that the policymaking process violated the Open Meetings Law and granted their summary judgment motion to void the policy. But the Court of Appeals ultimately overturned the summary judgment in the John Does’ case, ruling the CDPHE isn’t a “state public body” subject to the Open Meetings Law. 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.”
Chris Jackson, a Sherman & Howard member, said he believes the court made the right decision. He said applying the Open Meetings Law to whole state agencies raises issues with defining terms within the law, such as how to figure out what constitutes a quorum of members that would trigger an open meeting.
“The Open Meetings Law doesn’t map on well to huge organizations like that. It really is intended to be relatively small, discrete bodies or committees.”
The Colorado Municipal League submitted an amicus brief in Doe v. CDPHE. General Counsel David Broadwell said the case is relevant to the Colorado Municipal League because the definition of a “local public body” is similar to a “state public body.” Although he said the Supreme Court’s ruling doesn’t surprise him, he said an opposite ruling making a whole state agency subject to the Open Meetings Law would have “trickle[d] down to the municipal level.”
A local public body includes “any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function…”
Attorney Carmen Decker, who represented seven of the physician John Does as well as the two physicians in the cases against the Colorado Medical Board, did not return a request for comment on three Supreme Court decisions. It’s unclear whether the physicians could bring new claims alleging violation of the Open Meetings Law based on the specific policymaking process for Medical Marijuana Policy 2014-01.
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 they were issued based on an illegally adopted policy.
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.
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 ruled in favor of the Colorado Medical Board in the two companion cases.
So the Supreme Court reversed the decision in favor of McLaughlin and upheld the Court of Appeals decision in Boland’s case.
“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,” Justice Gabriel wrote in Colorado Medical Board v. McLaughlin, “Because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose.”
Boland’s medical license is listed as active but restricted. A Colorado Medical Board order dated March 15 put Boland’s medical license on probation for three years for unprofessional conduct related to his practices between July and December 2010 evaluating patients for medical marijuana.
According to the order, among other findings, Boland did not document full assessments of medical conditions for patients’ whom he certified for medical marijuana, which meant he did not establish a genuine physician/patient relationship.
McLaughlin’s medical license is listed as active, but the details of a formal complaint filed March 19 with the Office of Administrative Courts are not accessible on the Department of Regulatory Agencies’ website.
A call to the Medical Board to find out whether the actions on the two physicians’ licenses are related to the investigations rising from the 2014 CDPHE policy, and whether the subpoenas were ever enforced, was not returned by press time.
In an email, a CDPHE communications specialist confirmed the agency did not refer physicians to the Colorado Medical Board for investigation for the policy’s criteria while the litigation over it was pending, but the agency can now refer physicians under the policy if necessary.
“Should we have reason to refer a physician for criteria that was litigated and as outlined the policy, we will resume our standard practice of referring physicians to the medical board for further investigation,” she wrote.
In an email, a CDPHE communications specialist confirmed the agency did not refer physicians to the Colorado Medical Board for investigation for the policy’s criteria while the litigation over it was pending, but the agency can now refer physicians under the policy if necessary.
“Should we have reason to refer a physician for criteria that was litigated and as outlined the policy, we will resume our standard practice of referring physicians to the medical board for further investigation,” she wrote.
—Julia Cardi