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 Colorados
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 Departments 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, Colorados then governor, designated
the Department as "the state health agency" to
administer Colorados 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 Departments
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 Departments 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
healths 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 Dept of
Pub. Health & Envt 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." Dept
of Pub. Health & Envt 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 patients 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. Dept of Pub. Health & Envt 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. Dept of Pub. Health & Envt 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
Boards 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 Colorados 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 Departments 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 Departments— not the
Boards— the district court dismissed the Doctors
claims against the Board. And it concluded that if the Policy
was ...