Colorado Supreme Court Opinions

November 12, 2019

2019 CO 92 No. 18SC621, Doe v. Colorado Department of Public Health and Environment

Consistent with Medical Marijuana Policy No. 2014-01 (the  Referral Policy), which the Colorado Department of Public Health and Environment (CDPHE) developed after receiving input from staff of the Colorado Medical Board (the Board), the CDPHE referred John Does 1–9 (the Doctors) to the Board for investigation of unprofessional conduct regarding the certification of patients for the use of medical marijuana. The Doctors then filed the present action, contending, among other things, that (1) the Referral Policy was void because it was developed in violation of the Colorado Open Meetings Law (OML), CRS § 24-6-402, and (2) both the Referral Policy and the referrals to the Board constituted final agency actions under the State Administrative Procedure Act (APA), CRS §§ 24-4-101 to -108, and the CDPHE did not follow the procedures outlined therein, thereby rendering both the Referral Policy and the referrals void.

The Supreme Court concluded that (1) an entire state agency cannot be a “state public body” within the meaning of the OML, and therefore the Doctors have not established that the CDPHE violated the OML; (2) the Referral Policy is an interpretive rather than a legislative rule, and therefore it falls within an exception to the APA and was not subject to the APA’s rulemaking requirements; and (3) 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 of Appeals’ judgment was affirmed.

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2019 CO 93 No. 18SC330, Colorado Medical Board v. McLaughlin—

The Supreme Court was asked to determine whether an investigative subpoena issued by the Colorado Medical Board (the 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 (CDPHE) pursuant to a policy that violated the Open Meetings Law (OML) or the State Administrative Procedure Act (APA).

In Doe v. Colorado Department of Public Health & Environment, 2019 CO 92, __ P.3d __, decided the same day, the Court concluded that (1) the CDPHE, as a state agency, is not a “state public body” under the OML and therefore could not violate that statute, and (2) 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 necessarily rejected 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. However, the Court concluded that even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, 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 Court of Appeals’ judgment was reversed and the case was remanded for further proceedings consistent with this opinion.

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2019 CO 94 No. 18SC331, Boland v. Colorado Medical Board

In this companion case to Colorado Medical Board v. McLaughlin, 2019 CO 93, __ P.3d __, decided the same day, the Court was asked to determine whether an investigative subpoena issued by the Colorado Medical Board (the 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 (CDPHE) pursuant to a policy that violated the Open Meetings Law (OML) or the State Administrative Procedure Act (APA).

For the reasons articulated in McLaughlin, ¶¶ 22 to 37, the Court concluded that because the CDPHE, as a state agency and not a “state public body,” could not violate the OML and did not violate the APA in developing the policy at issue or in referring doctors to the Board under that policy, petitioner’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 is based on a flawed premise and is therefore unpersuasive. However, the Court concluded that even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, 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 Court of Appeals’ judgment was affirmed and the case was remanded for further proceedings consistent with this opinion.

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November 12, 2019

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