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Doe 1 v. Colorado Department of Public Health and Environment

Court of Appeals of Colorado, Second Division

July 26, 2018

John DOE 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, John Doe 8, and John Doe 9, Petitioners-Appellees and Cross-Appellants,
v.
COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; Larry Wolk, in his official capacity as Executive Director of the Department of Public Health and Environment; and Natalie Riggins, in her official capacity as State Registrar and Director of the Medical Marijuana Registry, Respondents-Appellants, and Colorado Medical Board, Cross-Appellee.

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          City and County of Denver District Court No. 15CV30902, Honorable Morris B. Hoffman, Judge, Honorable Jay S. Grant, Judge

         Hershey Decker Drake PLLC, Kari Hershey, C. Todd Drake, Carmen N. Decker, Lone Tree, Colorado, for Petitioners-Appellees and Cross-Appellants John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, and John Doe 9

         Corry & Associates, Matthew W. Buck, Robert J. Corry, Denver, Colorado, for Petitioners-Appellees and Cross-Appellants John Doe 7 and John Doe 8

         Cynthia H. Coffman, Attorney General, Jennifer L. Weaver, First Assistant Attorney General, Corelle M. Spettigue, Senior Assistant Attorney General, Brian N. Morrow, Assistant Attorney General, Michael D. McMaster, Assistant Attorney General, Denver, Colorado, for Respondents-Appellants

         Cynthia H. Coffman, Attorney General, Eric Maxfield, First Assistant Attorney General, Sierra R. Ward, Assistant Attorney General, Denver, Colorado, for Cross-Appellee

         Cynthia H. Coffman, Attorney General, Natalie L. Powell, Assistant Solicitor General, Denver, Colorado, for Amicus Curiae Colorado Department of Regulatory Agencies in Support of Respondents-Appellants

         Cynthia H. Coffman, Attorney General, Emmy A. Langley, Assistant Solicitor General, Denver, Colorado, for Amici Curiae Colorado Department of Labor and Employment, Colorado Department of Local Affairs, Colorado Department of Personnel and Administration, Colorado Department of Health Care Policy and Financing, Colorado Department of Natural Resources, Colorado Department of Education, Colorado Department of Corrections, Colorado Department of Transportation, Colorado Department of Agriculture, and the Division of Criminal Justice Within the Colorado Department of Public Safety in Support of Respondents-Appellants

         OPINION

         DUNN, JUDGE

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         [¶ 1] The Colorado Department of Public Health and Environment; Larry Wolk, the Executive Director of the Department of Public Health and Environment; and Natalie Riggins, the State Registrar and Director of the Medical Marijuana Registry (collectively, Department), referred John Does 1-9 (Doctors) to the Colorado Medical Board (Board) for investigation of unprofessional conduct involving the Doctors’ certification of patients for the use of medical marijuana.[1] The Department based its referrals on its medical marijuana policy (Policy).[2]

         [¶ 2] Concerned that the Department and the Board had secretly consulted with one another to enact the Policy, the Doctors brought this action against the Department and the Board alleging, as relevant here, violations of Colorado’s Open Meetings Law (OML), § § 24-6-401 to -402, C.R.S. 2017, and the State Administrative Procedure Act (APA), § § 24-4-101 to -204, C.R.S. 2017. The district court dismissed the claims against the Board. But it granted summary judgment on the Doctors’ OML and APA claims against the Department and, as a result, declared the Policy void.

         [¶ 3] Neither the Department nor the Doctors think the district court got it right. The Department asks us to reverse the summary judgment entered against it. And the Doctors challenge the dismissal of their claims against the Board along with the denial of their request for attorney fees and costs against the Department under the relevant provision of the Colorado Open Records Act (CORA), § § 24-72-200.1 to -206, C.R.S. 2017. We affirm in part, reverse in part, and remand to the district court with directions to grant the Department’s cross-motion for summary judgment and enter judgment in its favor.

          I. Background

         [¶ 4] The Colorado Constitution authorizes physicians to recommend the medical use of marijuana for patients with debilitating medical

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conditions. Colo. Const. art. XVIII, § 14(2)(c). And it provides that the Governor shall designate "the state health agency" responsible for creating and maintaining "a confidential registry of patients authorized to" use medical marijuana and "enact rules to administer" the program. Colo. Const. art. XVIII, § 14(1)(h), (7), (9); see also § 25-1.5-106(2)(f), C.R.S. 2017.

          A. The Department

         [¶ 5] Bill Owens, Colorado’s then governor, designated the Department as "the state health agency" to administer Colorado’s medical marijuana program. Exec. Order No. D 001 01 (Feb. 5, 2001), https://perma.cc/W9A9-6NZY; see also § 25-1.5-106(2)(f). In this capacity, the Department is required to promulgate rules governing certain aspects of the program. § 25-1.5-106(3)(a) (providing that the Department "shall ... promulgate rules of administration"). In particular, it must promulgate rules to establish a confidential registry of patients who are entitled to receive medical marijuana cards. § 25-1.5-106(3)(a)(I). It must also promulgate rules concerning the conditions for issuing registry patients identification cards, which entails creating standards to ensure that patients have "a bona fide physician-patient relationship with a physician in good standing." § 25-1.5-106(3)(a)(V).

         [¶ 6] To develop and maintain a confidential patient registry, the Department created the medical marijuana program (also known as the medical marijuana registry). As described in the record, the program is headed by a manager and has staff members responsible for "the day-to-day administration and operational maintenance" of the patient registry. The program is part of the Department’s Center for Health and Environmental Data Division.

         [¶ 7] The Department has discretion to refer a physician to the Board for "an investigation" if the Department "has reasonable cause to believe" that a physician violated the constitution, specified provisions of the medical marijuana statute, or certain rules promulgated under the Department’s rulemaking authority. § 25-1.5-106(6)(a). The "determination" of whether a physician violated any such provision is for the Board. Id.

          B. The State Board of Health

         [¶ 8] Housed within the Department (and not a party to this case) is the state board of health. See § 25-1-108, C.R.S. 2017 (creating the state board of health); § 24-1-119(2), C.R.S 2017 (transferring the state board of health to the Department). Part of the state board of health’s duties is to promulgate "rules and regulations ... and to administer and enforce the public health laws of this state." § 25-1-108(1)(c)(I).

         [¶ 9] With this authority, the state board of health first promulgated rules related to the medical marijuana program in 2001. See generally Dep’t of Pub. Health & Env’t Regs., 5 Code Colo.Regs. 1006-2 (2001).[3] In 2011, following its notice of proposed rulemaking and public hearings, it adopted a rule explaining, among other things, what qualifies as a "[b]ona fide physician-patient relationship." Dep’t of Pub. Health & Env’t Reg. 8(A)(2), 5 Code Colo.Regs. 1006-2; see also § 25-1.5-106(3)(a)(V). Specifically, the rule provides that physicians must complete full assessments of a patient’s medical history, consult with patients about their debilitating or disabling medical condition before the patient applies for a medical marijuana card, and provide follow-up care and treatment to the patient. Dep’t of Pub. Health & Env’t Reg. 8(A)(2)(a), 5 Code Colo.Regs. 1006-2. The rule authorizes the Department to refer physicians who do not comply with these qualifications to the Board. Dep’t of Pub. Health & Env’t Reg. 8(B), 5 Code Colo.Regs. 1006-2.

          C. The Board

         [¶ 10] The Board is entirely separate from the Department. It is housed under the Department of Regulatory Agencies. § 24-1-122(2)(g), C.R.S. 2017. And its organic statute is the Colorado Medical Practice Act.

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§ 12-36-103(1)(a)(I), C.R.S. 2017. The Board is authorized to investigate allegations of "unprofessional conduct" against physicians. See § 12-36-117, C.R.S. 2017; see also § 12-36-118, C.R.S. 2017 (describing the process for investigating complaints and formal hearings). This authorization allows the Board to issue subpoenas, "[m]ake investigations, hold hearings, and take evidence." § 12-36-104(1)(b)(I), C.R.S. 2017. If the Board’s hearing panel "finds the charges proven," it may "determine the extent" of any "discipline [to] be imposed." § 12-36-118(5)(g)(III).

          D. The Policy

         [¶ 11] In 2013, the Colorado State Auditor conducted a performance audit and issued "findings and recommendations related to Colorado’s medical marijuana regulatory system." The audit raised concerns "over access to medical marijuana" by an increasing number of unqualified patients. The Auditor found evidence that some physicians "may be making inappropriate recommendations" for the medical use of marijuana and that the Department was "not sufficiently oversee[ing] physicians who make medical marijuana recommendations." Recognizing the Department’s authority to refer physicians to the Board, the Auditor recommended that the Department and the Board work together to determine risk factors and "establish guidelines for initiating investigation[s] of physicians or making physician referrals to the Board for further investigation."

         [¶ 12] Consistent with these recommendations, some Department employees and some Board employees exchanged a series of emails,[4] had a handful of private meetings, and participated in telephone calls to develop criteria for the Department to use to refer physicians to the Board for further investigation.[5] Though the record does not reflect exactly how or when it happened, these discussions apparently culminated in the Policy.[6]

         [¶ 13] The Policy provides for the medical marijuana program to identify physicians who exceed a specific (1) number of patients for whom medical marijuana is recommended; (2) amount of marijuana recommended; and (3) number of patients in a set age group for whom medical marijuana is recommended. If a physician exceeds one of the criteria, the Policy states that the physician "may be recommended for referral" to the Board. The Policy also provides that the Medical Marijuana Program Director "in consultation with the Chief Medical Officer or Deputy Chief Medical Officer" will review physician referral recommendations and will "issue a formal referral to the" Board if the evidence supports it.

         [¶ 14] The Department, through Mr. Wolk, referred the Doctors to the Board under the Policy. The Board began an investigation, notifying the Doctors that it had received information regarding "a possible violation of the Medical Practice Act," it had "received a complaint" from "the [Department] related to your medical marijuana recommendations," "no assumption [had] been made about the truth or validity of any information provided to the Board," and it was "required by law to investigate the complaint."

         [¶ 15] The Doctors then made CORA requests to the Department and the Board asking them to produce public records, including policies, rules, protocols, and guidelines related to standards for referring physicians to the Board.

          E. The Lawsuit

         [¶ 16] After receiving some documents responsive to its CORA requests, the Doctors

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filed this action, seeking declaratory and injunctive relief.

         [¶ 17] The Board and the Department filed motions to dismiss for failure to state a claim. Agreeing with the Board that the Policy was the Department’s— not the Board’s— the district court dismissed the Doctors’ claims against the Board. And it concluded that if the Policy was ...


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