From last week’s oral arguments, the Colorado Supreme Court may decide whether the whole Colorado Department of Public Health and Environment is a “state public body” subject to the Open Meetings Law. The Court of Appeals previously said it’s not. While one side believes the agency should fall in the law’s purview, the attorneys aren’t arguing everything the agency does should be subject to the Open Meetings Law. The two sides are disputing whether the process for a specific policy the CDPHE adopted should have been made public.
A group of three cases has asked the court three questions in total: Is the CDPHE a “state public body” subject to the Open Meetings Law? Is the CDPHE’s referral of a physician to the Colorado Medical Board for potential investigation a “final agency action” subject to judicial review under the Administrative Procedure Act? And can an agency’s subpoena have a lawful purpose, even if the complaint from a different agency that prompted its investigation was made under a referral policy that violated the Open Meetings Law or the Administrative Procedure Act?
Overlaying all three cases is a policy the CDPHE implemented in order to have criteria for referring physicians to the Colorado Medical Board for investigation, prompted by a group of physicians who seemed to have unusually high rates of certifying patients for medical marijuana. The policy stated the CDPHE would refer physicians to the Colorado Medical Board for investigation if they:
- made 3,521 or more recommendations for medical marijuana per year;
- made recommendations for an increased marijuana plant or ounce count for more than 30% of their patients or a particularly high recommendation for any individual patient; or
- have a caseload in which over one-third of patients were under 30.
The CDPHE adopted the policy, which it called Policy 2014-01, in May 2014 and made it public in April 2015. The department didn’t hold any public meetings before adopting it.
Under an executive order, the CDPHE is tasked with managing Colorado’s medical marijuana program, and the agency has authority to make rules for some aspects of it. The CDPHE makes rules for keeping a confidential registry of patients who can have medical marijuana cards, and the agency also requires that a patient can only have a card “if he or she has a bona fide physician-patient relationship with a physician in good standing.”
In John Does 1-9 v. Colorado Department of Public Health and Environment, a group of physicians have argued the lack of a public process violated the Open Meetings Law and Administrative Procedure Act. The Denver District Court agreed with the physician John Does that the policymaking process violated the Open Meetings Law and granted their summary judgment motion to find the policy void.
And in the pair of cases against the Colorado Medical Board, physicians James Boland and Scott McLaughlin said subpoenas issued by the board to investigate their practices as a result of referrals from the CDPHE under Policy 2014-01 should be void because the referrals were based only on an illegally adopted policy.
Two Court of Appeals panels made opposite decisions and released them on March 22, 2018, while the John Does’ case was still pending in the Court of Appeals. One agreed with McLaughlin and reversed the Denver District Court’s enforcement of the subpoena. The other panel sided with the Colorado Medical Board, and upheld enforcement of the subpoena for Boland’s records.
But the Court of Appeals ultimately overturned the district court in the John Does’ case. The panel reversed the summary judgment decision, finding the CDPHE isn’t a “state public body” subject to the Open Meetings Law.
Can the Whole State Agency Be Subject to the Open Meetings Law?
The John Does’ case for the Supreme Court focuses partly on whether the CDPHE is a “state public body” addressed by the Open Meetings Law. The law applies to “meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken.”
Justice Melissa Hart asked the John Does’ arguing attorney Carmen Decker how the court should distinguish between a policymaking body and just a group of employees.
Decker said she was not arguing that everything that happens at the CDPHE should be subject to the Open Meetings Law. Rather, the law should cover the department’s activities when it engages in rulemaking, she said.
“This court has focused continuously not on the ‘who,’ but the ‘what,’” Decker said. She argued the Court of Appeals’ ruling creates a loophole in the Open Meetings Law and goes against the spirit of the statute.
But solicitor general Eric Olson argued Policy 2014-01 was not created by a “state public body,” so the Open Meetings Law should not have applied to its process. He also acknowledged defining something as a state public body calls for a case-by-case analysis but that the law’s text provides clarity that the Open Meetings Law doesn’t cover whole agencies.
A state public body can include a board, committee, commission or other bodies of a state agency, he said, and a whole agency such as the CDPHE doesn’t fit that definition.
Hart and Justice Monica Márquez pointed out the questions the court granted cert on may be too narrow to allow the justices to get to whether the policy in dispute violated the Open Meetings Law and the Administrative Procedure Act. The Court of Appeals looked at the CDPHE as a whole, but both sides agree their dispute is over the particular policymaking process for Policy 2014-01.
“I’m a little concerned about the narrowness of the questions that are presented to us, which seem to be untethered from the policy altogether,” Márquez said to Decker. “Neither of those questions really gets at whether the policy itself violated the Open Meetings Law, or whether the policy itself violated the APA.”
Decker answered she believes the Court of Appeals did skirt the issue of the policy somewhat by addressing the whole CDPHE.
When Hart returned to the possible discrepancy later during Olson’s arguments, he said he thinks the dispute over the policy process can still be reconciled with the questions the Supreme Court agreed to hear because the Open Meetings Law implies some kind of formal gathering in what would fall under its definition of a “state public body.” But the process for making Policy 2014-01 wasn’t formal, Olson argued. “What you saw was sort of informal collaboration among people who had expertise, and that, I think, is the kind of work that the entire agency does.” Also at issue in the John Does’ case is whether the CDPHE’s referrals of the physicians to the Colorado Medical Board are a “final agency action” subject to the Administrative Procedure Act. Decker argued they are. But Olson argued they are not, and rather, a disciplinary decision made by the Colorado Medical Board as a result of the referrals would be the final agency action subject to judicial review.
An 11th-Hour Question
With about five minutes left in the last case’s hearing during the morning’s argument marathon, Chief Justice Nathan Coats asked attorney Sierra Ward from the Colorado Department of Law a question that might influence how the court decides all three cases: whether the court should decide in the cases against the Colorado Medical Board if Policy 2014-01 violated the Open Meetings Law.
Ward, who argued for the Colorado Medical Board, said for the purpose of deciding the second two cases, Colorado Medical Board v. McLaughlin and Boland v. Colorado Medical Board, the Supreme Court should assume Policy 2014-01 violated the Open Meetings law. But as presented to the Supreme Court, the cases against the Colorado Medical Board don’t raise whether the agency violated the Open Meetings Law or the Administrative Procedures Act. They have the presumption built in that the board was not part of any violation because the policy was adopted by the CDPHE, not the board. Earlier in her arguments, Ward said the board has a duty to investigate referrals it receives, regardless of the source. She said she doesn’t think Boland and McLaughlin’s cases have room for the court to decide whether a violation happened.
“I think an oddity of the way that the issues are presented is that you could conclude that there was no violation of the Open Meetings Law and the Administrative Procedure Act and you could still find against the Medical Board on the issue presented,” she said. “On the facts of this case, though, the subpoenas would still be enforceable.”
Márquez had a similar line of thinking to Coats. She wondered to Ward if the court needs to decide on a violation of the Open Meetings Law in the McLaughlin and Boland cases, even though that’s not the question the court agreed to hear, in order to properly decide the question of the subpoenas’ lawfulness. She pointed out the Court of Appeals assumed in Boland’s case that Policy 2014-01 violated the law, and the panel in McLaughlin’s case actively decided it did.
“Assuming without deciding in Boland doesn’t get us around that affirmative ruling in McLaughlin.”