The Open Meetings Law, Life Insurance, a TABOR Repeal and Planned Parenthood in One Session

A look back at the Colorado Supreme Court

The state Supreme Court finishes its session on June 30, and decisions will also slow to a trickle until September. Most of the court’s rulings tend to be limited to each particular case at hand and don’t change law on a broad scale, but occasionally decisions ripple through their area of law. 

Here’s a look back at a handful of this session’s most significant rulings.

John Does 1-9 v. CDPHE

Although the originating cases were focused on a specific policy, the Colorado Supreme Court decided that an entire agency can’t be considered a “state public body” under Colorado’s Open Meetings Law. 

The dispute centered around several unnamed physicians and the Colorado Department of Public Health and Environment about a specific policy, Medical Marijuana Policy No. 2014-01, which was adopted by the CDPHE without a public process about how the agency should refer physicians for investigation based on their patterns of certifying patients for medical marijuana. The physicians claimed the policymaking process violated the Open Meetings Law and Administrative Procedure Act.

But neither side made the argument that the Open Meetings Law should cover the entire CDPHE and should apply to anything that happens within the agency involving more than one person. The parties’ dispute was only about the process of adopting Medical Marijuana Policy 2014-01.

The court also decided the policy isn’t subject to the APA’s rule making requirements, and the referrals of the physicians aren’t subject to judicial review under the APA.

The Open Meetings Law covers meetings between two or more members of any “state public body” at which they discuss public business or may take formal action. In turn, the law’s definition of a state public body includes “any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency.” 

The Supreme Court dove into minute analysis of specific statutory words and phrases. The phrase “of any state agency,” Justice Richard Gabriel wrote, modifies the specific types of bodies that come right before the phrase. He reasoned if the definition did not include “of any state agency,” “the provision would define ‘state public body’ to include any board, committee, or commission regardless of whether these bodies had any connection to the state.” 

Colorado Medical Board v. McLaughlin and Boland v. Colorado Medical Board

This pair of cases depended on the Supreme Court’s decision in John Does 1-9 v. CDPHE. 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 Medical Marijuana Policy 2014-01 should be unenforceable because the policy was illegally adopted. 

Based on the findings in the main case that the CDPHE didn’t violate the Open Meetings Law or Administrative Procedure Act when it adopted its policy, the Supreme Court ruled in favor of the Colorado Medical Board in the two companion cases.

Two Court of Appeals panels made opposite decisions, and released them the same day in 2018, while the John Does’ case was still pending in the Court of Appeals. One agreed with McLaughlin, while the other panel sided with the Colorado Medical Board. So the Supreme Court reversed the decision in favor of McLaughlin and upheld the Court of Appeals decision in Boland’s case.

“Even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, however, we still would conclude that the Board’s investigative subpoena had a lawfully authorized purpose,” Gabriel wrote in Colorado Medical Board v. McLaughlin, “Because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose.”

In re Proposed Ballot Initiative 2019-2020 #3

In a Dec. 23 decision, the Colorado Supreme Court cleared a path for a 2020 ballot measure to repeal the entire Taxpayer’s Bill of Rights, the amendment to the Colorado Constitution that limits the state and local governments’ authority to raise taxes. The court said the repeal measure’s title and abstract are clear and not misleading. 

 In the decision, In re Proposed Ballot Initiative 2019-2020 #3, Justice Richard Gabriel wrote the title allows voters to make an informed decision about whether to support the repeal measure. The appeal was brought to the Supreme Court by Doug Bruce — TABOR’s author — and William Banta.

Justice Monica Márquez wrote a partial dissent, joined by Justice Brian Boatright, to the decision about the title’s clarity, reasoning that the measure doesn’t meet the single-subject requirement because TABOR itself has several components. TABOR is perhaps best-known for requiring voter approval for the state or a local government to raise taxes. 

But the constitutional amendment has other distinct elements, including wording requirements for tax increases or new taxes.

 Márquez added aside from the single-subject requirement, the title doesn’t include any ‘central features’ of the repeal measure. She argued the title doesn’t give laypeople enough information about the measure to make an intelligent decision whether to support it.

Márquez agreed with the part of the decision that the use of “Taxpayer’s Bill of Rights” in the ballot title is not an “impermissible catch phrase.” The decision said a phrase is acceptable when it is descriptive and doesn’t create false assumptions about a ballot measure’s effects that could influence voting decisions. The TABOR repeal measure meets those requirements, said the court.

Amica Life Insurance Company v. Wertz

On April 27, the Supreme Court concluded the Colorado General Assembly can’t give an interstate insurance commission authority to make regulations that would override state statute.

Colorado has been part of a compact allowing the Interstate Insurance Product Regulation Commission to regulate insurance policies sold in member states. Its standards allow a two-year suicide exclusion for life insurance policies. But Colorado law says insurers doing business in the state can’t have a suicide exclusion longer than one year. 

Martin Fisher held a life insurance policy from Amica with Michael Wertz as the beneficiary. The policy included a suicide exclusion for the first two years. Fisher killed himself a little over a year after the policy was issued, and Amica denied Wertz’s claim for the death benefit.

The Supreme Court agreed to take the case because it involves a question of first impression about the scope of Colorado’s non-delegation doctrine, which says the legislature can’t delegate its legislative power. Because the two-year exclusion clearly circumvents Colorado law, said the court, the legislature can’t delegate authority to make that standard to the Commission.

Rocky Mountain Planned Parenthood v. Wagner

At the beginning of June, the Supreme Court ruled on a premises liability case related to the 2015 shooting at a Planned Parenthood clinic in Colorado Springs. 

After Robert Dear killed three people and injured nine others, survivors sued Planned Parenthood of the Rocky Mountains. 

They claimed the organization had a duty under Colorado’s premises liability law to provide a safe and secure environment.

The Supreme Court didn’t reach the core of the case but ruled the case can go to trial because the victims showed there were enough issues of material fact about PPRM’s actions that a jury should decide the organization’s liability. 

The decision upheld the Court of Appeals, which reversed the trial court’s summary judgment in favor of PPRM. 

The question the court answered was narrow. But in a partial dissent, Justice Melissa Hart wrote the majority’s decision could have the unintended consequence of incentivizing increased extremist threats against controversial organizations, because ramped-up efforts by the organizations to protect themselves could drive up insurance and operating costs.

“After today’s decision, antisemitic fanatics can impose additional costs on synagogues, and White supremacists can inflict the same on Black churches or businesses,” Hart wrote.

—Julia Cardi

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