and County of Denver District Court No. 15CV30883 Honorable
Ross B.H. Buchanan, Judge
Cynthia H. Coffman, Attorney General, Eric Maxfield, First
Assistant Attorney General, Denver, Colorado, for
Hershey Decker PLLC, Carmen N. Decker, Matthew George, Lone
Tree, Colorado, for Respondent-Appellant
1 In this subpoena enforcement action, respondent, Dr. James
Boland, appeals the district court's judgment enforcing a
subpoena issued by plaintiff, the Colorado Medical Board
(Board). The Board issued the subpoena after the Colorado
Department of Public Health and Environment (CDPHE) referred
Dr. Boland to the Board. On appeal, Dr. Boland contends the
Board subpoena was not issued for a lawful purpose because
CDPHE adopted the policy prompting the Board's
investigation in violation of Colorado's Open Meetings
Law, the State Administrative Procedure Act (APA), and the
Colorado and United States Constitutions. We disagree,
conclude the Board issued the subpoena for a lawful purpose,
and affirm the district court's judgment.
2 We recognize that another divided division of this court is
announcing today Colorado Medical Board v.
McLaughlin, 2018 COA 41, reversing the judgment of the
district court enforcing a subpoena issued on the basis of
the same challenged policy. In McLaughlin, the
division concludes that the policy is invalid, and therefore
that subpoena lacked a lawful purpose. For the reasons stated
herein, we disagree with that analysis.
3 Dr. Boland is a physician licensed to practice in Colorado.
In November 2014, Dr. Boland received a subpoena duces tecum
from the Board. The subpoena ordered him to produce medical
records for patients age thirty or under examined on three
particular dates in 2013.
4 A letter accompanying the subpoena explained that the Board
had received information regarding Dr. Boland's conduct
as a physician and a possible violation of the Medical
Practice Act. The letter requested a response from Dr. Boland
within thirty days.
5 The letter also noted that the Board had received a
complaint from CDPHE related to Dr. Boland's medical
marijuana recommendations. Specifically, the letter stated
that "the Medical Marijuana Registry's physician
referral policy dictate[d] that [CDPHE] will refer physicians
who are above the approved threshold for one or more of"
three enumerated criteria: (1) a caseload of 3521 medical
marijuana patient recommendations per year; (2)
recommendations of an increased plant count for more than
thirty percent of patients; or (3) a patient caseload in
which over one-third is under the age of thirty. According to
the letter, CDPHE referred Dr. Boland to the Board for
investigation on the basis of the last two criteria.
6 When he received the subpoena and letter, Dr. Boland was
unaware of any "physician referral policy." He sent
a written objection to the Board, arguing that CDPHE's
referral policy was invalidly adopted. On that basis, Dr.
Boland refused to produce the subpoenaed records.
7 In March 2015, the Board filed an application for an order
enforcing the subpoena, citing section 12-36-104, C.R.S.
2017. In June 2016, the district court granted the
Board's application and ordered Dr. Boland to produce the
subpoenaed records. That order is the subject of this appeal.
The district court concluded that, even if the physician
referral policy was invalid, only CDPHE could be enjoined
from enforcing it, not the Board. The district court
subsequently stayed enforcement of the order pending this
CDPHE and the Board
8 Pursuant to an executive order signed by Colorado's
governor, CDPHE is the health agency designated to manage
Colorado's medical marijuana program. See §
25-1.5-106(2)(f), C.R.S. 2017; see generally §
25-1.5-106. CDPHE is required to promulgate rules governing
certain aspects of the program. See §
25-1.5-106(3)(a) (CDPHE "shall . . . promulgate rules of
administration"); see also Colo. Const. art.
XVIII, § 14(9) (stating that the state health agency
"shall also enact rules of administration").
9 For example, CDPHE must promulgate rules to establish a
confidential registry of patients who are entitled to receive
a medical marijuana identification card. §
25-1.5-106(3)(a)(I). CDPHE is also required to promulgate
rules concerning the conditions for issuing registry
identification cards to patients, which entails creating
"standards for ensuring that [CDPHE] issues a registry
identification card to a patient only if he or she has a bona
fide physician-patient relationship with a physician in good
standing." § 25-1.5-106(3)(a)(V). If CDPHE
"has reasonable cause to believe" that a physician
violated rules promulgated pursuant to its rulemaking
authority, it can refer the matter to the Board for "an
investigation and determination." §
10 The Board is a body created by the Medical Practice Act.
§ 12-36-103(1)(a)(I), C.R.S. 2017. The Board is tasked
with investigating allegations of "unprofessional
conduct." § 12-36-117, C.R.S. 2017. It is
authorized by statute to "[m]ake investigations, hold
hearings, and take evidence." § 12-36-104(1)(b)(I);
see also § 12-36-118, C.R.S. 2017 (describing
the structure of the Board's inquiry and hearing panels,
and the process for initiating a complaint against a
physician). In the exercise of its investigatory function,
the Board has the power to issue subpoenas to compel
production of "materials in any hearing, investigation,
accusation, or other matter coming before [it]." §
Development of the Physician Referral Policy
11 After receiving the subpoena and accompanying letter, Dr.
Boland filed a Colorado Open Records Act request with CDPHE,
the Board, and the Department of Regulatory Agencies, asking
for public records related to the drafting of the physician
referral policy. In response, the Board produced internal
communications detailing the policy's evolution and
12 The correspondence revealed that in the fall of 2013,
based on a recent state audit, "CDPHE officials reached
out to the Board requesting assistance in developing
reporting parameters for medical marijuana prescribers."
The Board and Office of Investigations (OI) (a subdivision of
the Department of Regulatory Agencies) worked with CDPHE to
identify and define potential reporting criteria. An email
states that after a period of extended silence from CDPHE,
the Board and OI took a leadership role and "frequently
circled back" with CDPHE to promote progression of the
project. CDPHE subsequently adopted an internal policy based
on the criteria identified and/or defined by the
13 On May 15, 2014, CDPHE issued the physician referral
policy, titled "Medical Marijuana Policy Number
2014-01" (Policy 2014-01). The policy states CDPHE will
refer physicians to the Board for investigation based on the
number of patients, the amount of marijuana recommended, and
the age of the patients.
14 Dr. Boland alleges, and the Board does not dispute, that
the policy was not available to the public until April 2015,
nearly a year later, and that no public meeting was ever held
on Policy 2014-01.
15 In addition to the instant case, several other pending
actions have challenged the validity of Policy 2014-01. Six
other subpoena enforcement actions have been filed against
individual physicians who were referred to the Board based on
Policy 2014-01. Five of these cases have been stayed pending
this appeal. The sixth action has been separately appealed to
this court. Another division of this court decides that case
today. McLaughlin, 2018 COA 41.
16 Dr. Boland and eight other physicians have directly
challenged the validity of Policy 2014-01 in yet another
action. In that case, however, the district court, in an
order entered by Judge Hoffman on October 14, 2015, dismissed
the relevant claims against the Board, stating as follows:
This claim fails because the secret policy at issue was, by
plaintiff's own description, a policy involving the
CDPHE's referral of cases to [the Board] for
investigation. That is, it was CDPHE's policy, not [the
Board's] policy. If this policy was in fact unlawfully
adopted and is ultimately declared void, any injunctive
relief would necessarily be aimed at CDPHE to prohibit it
from referring cases to [the Board] under the void policy.
Nothing at all about the policy prevents [the Board] from
initiating its own investigations based on whatever
information that come to it from whatever source, proper or
17 The district court in that case later ruled, in October
2016, that Policy 2014-01 was void and enjoined CDPHE from
referring physicians to the Board under the policy. That
decision is also the subject of an appeal to this court.
See John Does v. Colo. ...