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,
v.
COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; Jill Hunsaker Ryan, in her official capacity as Executive Director of the Department of Public Health and Environment; Natalie Riggins, in her official capacity as State Registrar and Director of the Medical Marijuana Registry; and Colorado Medical Board, Respondents.
Page 852
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 16CA2011
Attorneys for Petitioners John Does 1-6 and 9: Hershey
Decker, Drake C. Todd, Drake Carmen N. Decker, Kaylyn
Peister, Lone Tree, Colorado
Attorneys
for Petitioners John Does 7 and 8: Corry & Associates, Robert
J. Corry Jr., Denver, Colorado
Attorneys
for Respondents Colorado Department of Public Health and
Environment, Jill Hunsaker Ryan, and Natalie Riggins: Philip
J. Weiser, Attorney General, Eric R. Olson, Solicitor
General, Jennifer L. Weaver, First Assistant Attorney
General, Brian N. Morrow, Senior Assistant Attorney General,
Corelle M. Spettigue, Senior Assistant Attorney General,
Michael D. McMaster, Assistant Solicitor General, Denver,
Colorado
Attorneys
for Respondent Colorado Medical Board: Philip J. Weiser,
Attorney General, Christopher P. Beall, Deputy Attorney
General, Ashley E. Moller, Senior Assistant Attorney General,
Sierra R. Ward, Senior Assistant Attorney General, Denver,
Colorado
Attorneys
for Amici Curiae Colorado Department of Labor and Employment,
Colorado Department of Personnel and Administration, Colorado
Department of Local Affairs, Colorado Department of
Regulatory Agencies, Colorado Department of Health Care
Policy and Financing, Colorado Department of Natural
Resources, Colorado Department of Education, Colorado
Department of Corrections, Colorado Department of Public
Safety, Colorado Department of Agriculture, Colorado
Department of Human Services, Colorado Department of the
Treasury, Colorado Department of Revenue, Colorado Department
of Military and Veterans Affairs, Colorado Department of
Transportation, Colorado Department of Higher Education, and
Colorado Department of State: Philip J. Weiser, Attorney
General, David D. Powell, Jr., Deputy Attorney General, Emmy
A. Langley, Assistant Solicitor General, John August Lizza,
First Assistant Attorney General, Evan P. Brennan, Assistant
Attorney General, Natalie L. Powell, Senior Assistant
Attorney General, W. Eric Kuhn, Senior Assistant Attorney
General, Jake Matter, Assistant Attorney General, Julie
Tolleson, First Assistant Attorney General, James Quinn,
Senior Assistant Attorney General, Ingrid Barrier, Assistant
Attorney General, Billy Seiber, First Assistant Attorney
General, Jessica Perrill, Senior Assistant Attorney General,
Grant T. Sullivan, Assistant Solicitor General J. Alan Call,
Senior Assistant Attorney General, Kathy Young, First
Assistant Attorney General
Attorney for Amicus Curiae Colorado Municipal League: Laurel
Witt, Denver, Colorado
OPINION
GABRIEL,
JUSTICE.
Page 853
[¶1]
Consistent with Medical Marijuana Policy No. 2014-01 (the
"Referral Policy"), which the Colorado Department
of Public Health and Environment (the "CDPHE") had
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 (the "OML"), § 24-6-402, C.R.S. (2019), and (2)
both the Referral Policy and the referrals to the Board
constituted final agency actions under the State
Administrative Procedure Act (the "APA"), § §
24-4-101 to -108, C.R.S. (2019), and the CDPHE did not follow
the procedures outlined therein, thereby rendering both the
Referral Policy and the referrals void.
[¶2]
Having not prevailed on these arguments in the court of
appeals, the Doctors renew their contentions in this
court.[1] We now conclude 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,
Page 854
and therefore it falls within an exception to the APA and was
not subject to the APAs 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.
[¶3]
Accordingly, we affirm the judgment of the division below.
I. Facts and Procedural History
[¶4]
The Colorado Constitution allows patients in lawful
possession of a medical marijuana registry identification
card to use medical marijuana. Colo. Const. art. XVIII, §
14(2). In order for a patient to obtain such a card, a
physician must diagnose the patient as having a debilitating
medical condition and must advise the patient, in the context
of a bona fide physician-patient relationship, that the
patient might benefit from the medical use of marijuana in
connection with the patients debilitating condition.
Id.
[¶5]
Section 25-1.5-106, C.R.S. (2019), in turn, establishes a
mechanism for regulating and monitoring the use of medical
marijuana in Colorado. As pertinent here, that statute allows
the "state health agency" to promulgate rules of
administration concerning the implementation of the medical
marijuana program and to refer doctors to the Board when it
has reasonable cause to believe that a physician has violated
section 14 of article XVIII of the state constitution,
sections 25-1.5-106(5)(a)-(c), or the rules promulgated by
the state health agency pursuant to that statute. §
25-1.5-106(6)(a). By executive order, Governor Bill Owens
designated the CDPHE as the "state health agency"
described in the Colorado Constitution and the statute. Exec.
Order No. D 001 01 (Feb. 5, 2001).
[¶6]
In 2013, the Colorado State Auditor conducted an audit to
assess, among other things, the CDPHEs process for issuing
"red cards," which gave individuals access to
medical marijuana. As a result of this audit, the Auditor
expressed concern that the CDPHEs controls over access to
medical marijuana did not provide assurance that only
qualified individuals receive red cards. The Auditor thus
recommended that the CDPHE work with the Board to determine
risk factors that the CDPHE could use to identify potentially
inappropriate physician recommendations and to establish
guidelines for making referrals to the Board for further
investigation.
[¶7]
Based on the Auditors recommendation, employees from the
CDPHE began drafting guidelines for such physician referrals.
As part of this effort, CDPHE staff members held a number of
conferences, including several in-person meetings and a
number of phone calls with Board staff members. Board members
themselves did not participate in any of these meetings or
phone calls, and the CDPHE did not provide the public with
notice of these meetings or calls.
[¶8]
At some point after these conferences, the CDPHE adopted the
Referral Policy. That Policy provides that the CDPHE will use
its statistical reviews of physician medical marijuana
recommendations to determine whether reasonable cause exists
to refer a physician to the Board for investigation. Factors
to be considered include (1) whether a physician has a high
caseload as determined by the number of patients for whom
medical marijuana is recommended (a high caseload is
calculated as 3,521 or more patient recommendations in one
year); (2) whether a physician recommended increased plant
counts for more than thirty percent of his or her caseload;
and (3) whether more than one-third of the physicians
patient caseload is under the age of thirty.
[¶9]
Subsequently, relying on the guidelines set forth in the
Referral Policy, the CDPHE referred the Doctors to the Board
for investigation, and the Board notified the Doctors of
these referrals and requested that the Doctors respond to the
allegations contained therein. These notifications generated
a number of questions from the Doctors and their attorneys
about the Referral Policy, and the Doctors then made open
record requests under the Colorado Open Records Act, seeking
public records related to, among other things, the Referral
Policy.
[¶10]
Based on information that they obtained in this process, the
Doctors brought the present action against, among others, the
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