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Doe 1 v. Colorado Dept. of Public Health and Environment

Supreme Court of Colorado, En Banc

November 12, 2019

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,
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



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         [¶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,

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and therefore it falls within an exception to the APA and was not subject to the APA’s 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 patient’s 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 CDPHE’s process for issuing "red cards," which gave individuals access to medical marijuana. As a result of this audit, the Auditor expressed concern that the CDPHE’s 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 Auditor’s 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 physician’s 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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