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,
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.
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
& 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
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
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. The Department based its referrals on its
medical marijuana policy (Policy).
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
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.
4 The Colorado Constitution authorizes physicians to
recommend the medical use of marijuana for patients with
debilitating medical 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.
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." §
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.
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). 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.
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. § 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." §
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,  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. Though the record does not reflect exactly
how or when it happened, these discussions apparently
culminated in the Policy.
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.
16 After receiving some documents responsive to its CORA
requests, the Doctors 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
"ultimately declared void, any injunctive relief"
would be directed to the Department.
18 But the court denied the Department's motion,
questioning whether the Policy was a "rule of
administration concerning implementation of the medical
marijuana program." See §
25-1.5-106(3)(a). It ultimately determined that the answer
"may well be a mixed question of law and fact," and
declined to answer the question at that stage of the
19 The Department and the Doctors later filed cross-motions
for summary judgment. The district court granted summary
judgment for the Doctors on their APA and OML claims,
determining that the Department was the "agency
responsible for promulgating rules setting reasonable cause
standards for referral of physicians to the . . .
Board." The court concluded that the Department's
referrals qualified as a "final agency action," and
because the Department adopted the Policy without providing
public notice of its meetings or opening the meetings to the
public, the court determined that the "promulgation and
implementation of [the] Policy . . . was in violation of the
[OML] and that [the] Policy [was], therefore, invalid."
20 The court ordered the Department to "immediately
cease and desist from enforcing [the] Policy," but it
rejected the Doctors' request to "halt any
investigations that were initiated as a result of those
referrals." The court awarded the Doctors their
reasonable attorney fees and costs under the OML. But it
denied fees and costs related to the Department's
response to the Doctors' CORA request.
21 The Department argues the district court erred in granting
summary judgment on the Doctors' OML claims against it.
The Doctors disagree and additionally contend the court erred
in dismissing their OML claim against the Board.
22 We do not agree with the Department's opening salvo
that the Doctors lack standing to bring their OML claims.
23 Standing requires a showing of an injury in fact to a
legally protected interest. Ainscough v. Owens, 90
P.3d 851, 855 (Colo. 2004). The OML itself creates a
"legally protected interest on behalf of Colorado
citizens in having public bodies conduct public business
openly in conformity with its provisions." Weisfield
v. City of Arvada, 2015 COA 43, ¶ 22; see
also § 24-6-402(9)(b), C.R.S. 2017 (Courts
"have jurisdiction to issue injunctions to enforce [the
OML] upon application by any citizen of this state.").
24 And the Doctors alleged an injury in fact under the OML.
Namely, they alleged that the Department violated the OML by
adopting the Policy in secret and without public input and
that they were referred to the Board for further
investigation under the secret Policy. That is enough for
standing under the OML. See Weisfield, ¶ 28
(concluding that a district resident had ...