Colo. Med. Bd. v. Boland

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 22, 2018
2018COA39
No. 16CA1269, Colo. Med. Bd. v. Boland — Administrative Law
— State Administrative Procedure Act — Colorado Sunshine
Act — Open Meetings Law — Professions and Occupations —
Colorado Medical Board — Disciplinary Procedures —
Subpoenas
In this subpoena enforcement action, a division of the court of
appeals considers whether a subpoena issued by the Colorado
Medical Board (Board) in relation to an investigation of a
physician’s medical marijuana recommendations had a lawful
purpose. The majority concludes that the subpoena was issued for
the lawfully authorized purpose of investigating whether the
physician had engaged in unprofessional conduct, even assuming
that the subpoena arose from a policy adopted by a different agency
in violation of the Open Meetings Law. Accordingly, the majority
affirms the district court’s judgment enforcing the subpoena.
The dissent agrees with the majority in Colorado Medical
Board v. McLaughlin, 2018 COA 41, also announced today. Thus,
the dissent would reverse the district court’s judgment enforcing
the subpoena because it concludes that the subpoena was issued
without lawful purpose and solely as a result of a physician referral
policy promulgated in violation of the Open Meetings Law and the
State Administrative Procedure Act.
COLORADO COURT OF APPEALS 2018COA39
Court of Appeals No. 16CA1269
City and County of Denver District Court No. 15CV30883
Honorable Ross B.H. Buchanan, Judge
Colorado Medical Board,
Petitioner-Appellee,
v.
James Boland, MD,
Respondent-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE RICHMAN
Furman, J., concurs
Taubman, J., dissents
Prior Opinion Announced January 18, 2018, WITHDRAWN
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON January 18, 2018, IS NOW DESIGNATED FOR PUBLICATION
Announced March 22, 2018
Cynthia H. Coffman, Attorney General, Eric Maxfield, First Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Hershey Decker PLLC, Carmen N. Decker, Matthew George, Lone Tree,
Colorado, for Respondent-Appellant
¶1 In this subpoena enforcement action, respondent, Dr. James
Boland, appeals the district court’s judgment enforcing a subpoena
issued by plaintiff, the Colorado Medical Board (Board). The Board
issued the subpoena after the Colorado Department of Public
Health and Environment (CDPHE) referred Dr. Boland to the Board.
On appeal, Dr. Boland contends the Board subpoena was not
issued for a lawful purpose because CDPHE adopted the policy
prompting the Board’s investigation in violation of Colorado’s Open
Meetings Law, the State Administrative Procedure Act (APA), and
the Colorado and United States Constitutions. We disagree,
conclude the Board issued the subpoena for a lawful purpose, and
affirm the district court’s judgment.
¶2 We recognize that another divided division of this court is
announcing today Colorado Medical Board v. McLaughlin, 2018 COA
41, reversing the judgment of the district court enforcing a
subpoena issued on the basis of the same challenged policy. In
McLaughlin, the division concludes that the policy is invalid, and
therefore that subpoena lacked a lawful purpose. For the reasons
stated herein, we disagree with that analysis.
1
I. Background
A. The Subpoena
¶3 Dr. Boland is a physician licensed to practice in Colorado. In
November 2014, Dr. Boland received a subpoena duces tecum from
the Board. The subpoena ordered him to produce medical records
for patients age thirty or under examined on three particular dates
in 2013.
¶4 A letter accompanying the subpoena explained that the Board
had received information regarding Dr. Boland’s conduct as a
physician and a possible violation of the Medical Practice Act. The
letter requested a response from Dr. Boland within thirty days.
¶5 The letter also noted that the Board had received a complaint
from CDPHE related to Dr. Boland’s medical marijuana
recommendations. Specifically, the letter stated that “the Medical
Marijuana Registry’s physician referral policy dictate[d] that
[CDPHE] will refer physicians who are above the approved threshold
for one or more of” three enumerated criteria: (1) a caseload of 3521
medical marijuana patient recommendations per year; (2)
recommendations of an increased plant count for more than thirty
percent of patients; or (3) a patient caseload in which over one-third
2
is under the age of thirty. According to the letter, CDPHE referred
Dr. Boland to the Board for investigation on the basis of the last two
criteria.
¶6 When he received the subpoena and letter, Dr. Boland was
unaware of any “physician referral policy.” He sent a written
objection to the Board, arguing that CDPHE’s referral policy was
invalidly adopted. On that basis, Dr. Boland refused to produce the
subpoenaed records.
¶7 In March 2015, the Board filed an application for an order
enforcing the subpoena, citing section 12-36-104, C.R.S. 2017. In
June 2016, the district court granted the Board’s application and
ordered Dr. Boland to produce the subpoenaed records. That order
is the subject of this appeal. The district court concluded that, even
if the physician referral policy was invalid, only CDPHE could be
enjoined from enforcing it, not the Board. The district court
subsequently stayed enforcement of the order pending this appeal.
B. CDPHE and the Board
¶8 Pursuant to an executive order signed by Colorado’s governor,
CDPHE is the health agency designated to manage Colorado’s
medical marijuana program. See § 25-1.5-106(2)(f), C.R.S. 2017;
3
see generally § 25-1.5-106. CDPHE is required to promulgate rules
governing certain aspects of the program. See § 25-1.5-106(3)(a)
(CDPHE “shall . . . promulgate rules of administration”); see also
Colo. Const. art. XVIII, § 14(9) (stating that the state health agency
“shall also enact rules of administration”).
¶9 For example, CDPHE must promulgate rules to establish a
confidential registry of patients who are entitled to receive a medical
marijuana identification card. § 25-1.5-106(3)(a)(I). CDPHE is also
required to promulgate rules concerning the conditions for issuing
registry identification cards to patients, which entails creating
“standards for ensuring that [CDPHE] issues a registry
identification card to a patient only if he or she has a bona fide
physician-patient relationship with a physician in good standing.”
§ 25-1.5-106(3)(a)(V). If CDPHE “has reasonable cause to believe”
that a physician violated rules promulgated pursuant to its
rulemaking authority, it can refer the matter to the Board for “an
investigation and determination.” § 25-1.5-106(6)(a).1
1 CDPHE can also refer a physician to the Board if it has reasonable
cause to believe the physician violated section 14 of article XVIII of
the Colorado Constitution, or section 25-1.5-106(5)(a)-(c), which
4
¶ 10 The Board is a body created by the Medical Practice Act.
§ 12-36-103(1)(a)(I), C.R.S. 2017. The Board is tasked with
investigating allegations of “unprofessional conduct.” § 12-36-117,
C.R.S. 2017. It is authorized by statute to “[m]ake investigations,
hold hearings, and take evidence.” § 12-36-104(1)(b)(I); see also
§ 12-36-118, C.R.S. 2017 (describing the structure of the Board’s
inquiry and hearing panels, and the process for initiating a
complaint against a physician). In the exercise of its investigatory
function, the Board has the power to issue subpoenas to compel
production of “materials in any hearing, investigation, accusation,
or other matter coming before [it].” § 12-36-104(1)(b)(II).
C. Development of the Physician Referral Policy
¶ 11 After receiving the subpoena and accompanying letter, Dr.
Boland filed a Colorado Open Records Act request with CDPHE, the
Board, and the Department of Regulatory Agencies, asking for
public records related to the drafting of the physician referral policy.
lists requirements for physicians who recommend medical
marijuana to patients. Here, the parties agree neither applies and
CDPHE based its referral solely on the criteria listed in the
physician referral policy.
5
In response, the Board produced internal communications detailing
the policy’s evolution and adoption.
¶ 12 The correspondence revealed that in the fall of 2013, based on
a recent state audit, “CDPHE officials reached out to the Board
requesting assistance in developing reporting parameters for
medical marijuana prescribers.” The Board and Office of
Investigations (OI) (a subdivision of the Department of Regulatory
Agencies) worked with CDPHE to identify and define potential
reporting criteria. An email states that after a period of extended
silence from CDPHE, the Board and OI took a leadership role and
“frequently circled back” with CDPHE to promote progression of the
project. CDPHE subsequently adopted an internal policy based on
the criteria identified and/or defined by the CDPHE/Board/OI
workgroup.
¶ 13 On May 15, 2014, CDPHE issued the physician referral policy,
titled “Medical Marijuana Policy Number 2014-01” (Policy 2014-01).
The policy states CDPHE will refer physicians to the Board for
investigation based on the number of patients, the amount of
marijuana recommended, and the age of the patients.
6
¶ 14 Dr. Boland alleges, and the Board does not dispute, that the
policy was not available to the public until April 2015, nearly a year
later, and that no public meeting was ever held on Policy 2014-01.
D. Related Litigation
¶ 15 In addition to the instant case, several other pending actions
have challenged the validity of Policy 2014-01. Six other subpoena
enforcement actions have been filed against individual physicians
who were referred to the Board based on Policy 2014-01. Five of
these cases have been stayed pending this appeal. The sixth action
has been separately appealed to this court. Another division of this
court decides that case today. McLaughlin, 2018 COA 41.
¶ 16 Dr. Boland and eight other physicians have directly challenged
the validity of Policy 2014-01 in yet another action. In that case,
however, the district court, in an order entered by Judge Hoffman
on October 14, 2015, dismissed the relevant claims against the
Board, stating as follows:
This claim fails because the secret policy at
issue was, by plaintiff’s own description, a
policy involving the CDPHE’s referral of cases
to [the Board] for investigation. That is, it was
CDPHE’s policy, not [the Board’s] policy. If
this policy was in fact unlawfully adopted and
is ultimately declared void, any injunctive relief
7
would necessarily be aimed at CDPHE to
prohibit it from referring cases to [the Board]
under the void policy. Nothing at all about the
policy prevents [the Board] from initiating its
own investigations based on whatever
information that come to it from whatever
source, proper or improper.
¶ 17 The district court in that case later ruled, in October 2016,
that Policy 2014-01 was void and enjoined CDPHE from referring
physicians to the Board under the policy. That decision is also the
subject of an appeal to this court. See John Does v. Colo. Dep’t of
Pub. Health & Env’t, No. 16CA2011 (Colo. App. filed Nov. 22, 2016).
¶ 18 However, in discussing available relief in that order, the
district judge referred to Judge Hoffman’s previous order dismissing
the Board from the case, stating that it agreed with Judge
Hoffman’s analysis, finding “no case law or authority to support the
position that this Court can or should order the Board to halt any
investigations that were initiated as a result of those [CDPHE]
referrals.”
E. District Court Opinion
¶ 19 In its order in this case enforcing the Board’s subpoena, the
district court noted that in the proceedings against CDPHE, the
other district court had concluded that the alleged violation of the
8
Open Meetings Law involved only CDPHE’s Policy 2014-01.
Because the policy was not promulgated by the Board, nothing
about the policy prevents the Board from initiating its own
investigations based on whatever information comes to it from
whatever source. Accordingly, the court concluded that because
the Board has a statutory duty to investigate a licensed physician
who engages in unprofessional conduct, and is vested with
authority to conduct investigations and issue administrative
subpoenas, the subpoena to Dr. Boland was issued for a lawfully
authorized purpose.
¶ 20 The district court also concluded the subpoenaed documents
requested by the Board are relevant to the stated inquiry, and “the
subpoena is sufficiently specific to obtain documents that are
tailored to the Board’s inquiry.”
¶ 21 On appeal, Dr. Boland again asserts that Policy 2014-01 was
promulgated in violation of the Open Meetings Law. The Board
does not expressly dispute that the policy was promulgated in
violation of the Open Meetings Law, but rather asserts that the
“taint, if any, would be on CDPHE’s conduct” because “the policy is
CDPHE’s and not the Board’s.”
9
II. Applicable Law
¶ 22 The Board is authorized to conduct investigations into
complaints of unprofessional conduct by a medical licensee through
“inquiry panels.” Written complaints relating to the conduct of a
medical licensee may be made by any person or may be initiated by
an inquiry panel of the Board on its own motion.
§ 12-36-118(4)(a)(1).
¶ 23 A licensee about whom a complaint has been filed must be
given written notice of the complaint, and an opportunity to
respond. Id. Upon receipt of the licensee’s response, or after thirty
days, whichever comes first, the inquiry panel may take further
action as set forth in the statute. One of the actions that may be
taken is to conduct a further investigation, and in connection with
such investigation the panel may issue subpoenas for relevant
records. § 12-36-104(1)(b)(I)-(II).
¶ 24 Under Colorado’s Open Meetings Law, “[n]o resolution, rule,
regulation, ordinance, or formal action of a state or local public
body shall be valid unless taken or made at a meeting” open to the
public pursuant to section 24-6-402(2), C.R.S. 2017. § 24-6-402(8).
In short, a formal action taken at a meeting that does not comport
10
with the Open Meetings Law is “null and void.” Van Alstyne v.
Hous. Auth., 985 P.2d 97, 100-01 (Colo. App. 1999); see also
Wisdom Works Counseling Servs., P.C. v. Colo. Dep’t of Corr., 2015
COA 118, ¶ 25.
III. Standard of Review
¶ 25 The seizure of records under an administrative subpoena may
be an unreasonable search in violation of the Fourth Amendment.
But an administrative subpoena’s seizure of records is reasonable if
(1) the subpoena and investigation are for a lawfully authorized
purpose; (2) the information sought is relevant to the inquiry; and
(3) the subpoena is sufficiently specific to obtain documents that
are adequate but not excessive for the inquiry. Charnes v.
DiGiacomo, 200 Colo. 94, 101, 612 P.2d 1117, 1122 (1980). This is
a constitutional issue we review de novo. See People v. Hopkins,
870 P.2d 478, 482 (Colo. 1994) (citing cases holding courts review
reasonableness determinations under Fourth Amendment de novo).
¶ 26 The issuing agency must demonstrate the propriety of an
issued subpoena. Colo. State Bd. of Accountancy v. Arthur Andersen
LLP, 116 P.3d 1245, 1248 (Colo. App. 2005). “If the agency fails to
11
demonstrate that the subpoena issued is for an authorized purpose,
the court must refuse to enforce it.” Id.
IV. Analysis
¶ 27 Dr. Boland limits his appeal to the first prong of the Charnes
test: whether the subpoena was issued for a lawful purpose. He
contends that, because CDPHE based its referral on Policy 2014-01,
and because CDPHE unlawfully adopted Policy 2014-01, the
Board’s subpoena caused by CDPHE’s referral had no lawful
purpose.
¶ 28 In contrast, the Board contends that, even if Policy 2014-01 is
invalid, it nevertheless had the authority to issue the subpoena to
investigate whether Dr. Boland engaged in unprofessional conduct.
The district court adopted this argument.
¶ 29 We agree with the district court that the subpoena was issued
for a lawful purpose, even assuming Policy 2014-01 was adopted in
violation of the Open Meetings Law. “Purpose” is “an objective, goal
or end.” Black’s Law Dictionary 1356 (9th ed. 2009). It is a forward
looking term, which here describes the Board’s objective to
investigate possible unprofessional conduct. Whatever the source
12
of the Board’s initiating step, the purpose of the subpoena and the
investigation is lawful.
¶ 30 We will assume, for purposes of this appeal, that the other
district court correctly concluded in its October 2016 order that
CDPHE adopted Policy 2014-01 in violation of the Open Meetings
law, although we are not bound by that decision. That policy is not
a Board rule. As Judge Hoffman found, the policy is CDPHE’s, not
the Board’s.
¶ 31 And, although the Board helped CDPHE create Policy 2014-
01, the Board never induced CDPHE to, or suggested it should,
adopt the rule without public notice or public meetings, or
otherwise complying with the Open Meetings Law.
¶ 32 CDPHE apparently referred Dr. Boland to the Board in the
summer of 2014, although the exact date is not in the record. This
was long before any district court found CDPHE violated the Open
Meetings Law and enjoined enforcement of Policy 2014-01.
¶ 33 Accordingly, CDPHE’s conduct does not determine whether the
Board acted lawfully in issuing the subpoena to Dr. Boland.
13
¶ 34 A “written complaint” about a medical licensee “may be made
by any person.” § 12-36-118(4)(a)(I). “Person” includes government
agencies and subdivisions. § 2-4-401(8), C.R.S. 2017.
¶ 35 Upon receiving a complaint, the Board’s inquiry panel “may
take further action” after giving the licensee an opportunity to
answer or explain the matters described in the complaint.
§ 12-36-118(4)(a)(I). This provision permits, but does not require,
further investigation (as compared to subsection (b), which
mandates investigations in certain circumstances).
¶ 36 If the Board decides to investigate, it may issue subpoenas to
produce relevant records. § 12-36-104(1)(b)(II). If the subpoena
meets the three Charnes requirements, the subpoena is
constitutionally valid and enforceable.
¶ 37 In Board of Medical Examiners v. Duhon, the supreme court
invalidated a Board subpoena. 895 P.2d 143, 146-47 (Colo. 1995).
The court construed the prior version of the section authorizing
subpoenas with the section authorizing investigations. Neither
differs substantially from the provisions at issue here.
¶ 38 The Duhon court ruled the Board may only issue a subpoena
in connection with a Board hearing, or in connection with an
14
investigation. Id. at 147-49. Duhon invalidated a subpoena issued
to investigate a physician’s allegedly unprofessional conduct
because the Board issued it before the required response time
expired. Id.; see also Colo. State Bd. of Med. Exam’rs v. Khan, 984
P.2d 670, 673-74 (Colo. App. 1999) (concluding statutory
amendment superseded Duhon but not disagreeing with Duhon’s
logic).
¶ 39 No timing issue is present here. The Board received a
complaint, gave Dr. Boland an opportunity to respond, which he
did, and then issued the subpoena. The purpose of the
investigation is to ascertain whether he acted unprofessionally.
Under these circumstances, we conclude the Board subpoena had a
lawful purpose, and we affirm the district court’s order.
¶ 40 We note that ordering enforcement of the subpoena does not
confirm, or even suggest, that Dr. Boland acted unprofessionally.
Nor does producing documents requested by the subpoena preclude
Dr. Boland from arguing that conduct covered by the standards
contained in Policy 2014-01 is not indicative of unprofessional
conduct. At this point, Dr. Boland’s only obligation is to produce
documents to permit the Board’s investigation.
15
V. Other Arguments
¶ 41 Dr. Boland also argues that referral by CDPHE violated his
rights under the Colorado Constitution, section 25-1.5-106, and the
First Amendment to the United States Constitution. These
arguments were not made to the district court, and we decline to
reach them here. See People v. Whitlock, 2014 COA 162, ¶ 40;
People v. Welsh, 176 P.3d 781, 793 (Colo. App. 2007). However, we
note that to the extent provisions of article XVIII, section 14(2)(c) of
the Colorado Constitution, regarding a physician’s right to advise a
patient diagnosed with a debilitating medical condition, apply to Dr.
Boland, he may assert such protection in any disciplinary action
taken by the Board.
VI. Conclusion
¶ 42 Accordingly, the district court’s judgment enforcing the
subpoena is affirmed.
JUDGE FURMAN concurs.
JUDGE TAUBMAN dissents.
16
JUDGE TAUBMAN, dissenting.
¶ 43 Can a subpoena issued solely as a result of an invalid agency
policy nevertheless have a lawful purpose? While the majority
answers this question in the affirmative, I dissent because I
conclude that the subpoena here, which was based only on an
unlawfully adopted referral policy, had no lawful purpose.
¶ 44 In November 2014, respondent, Dr. James Boland, received a
subpoena duces tecum from the petitioner, Colorado Medical Board
(Board). The subpoena directed him to produce the medical records
concerning medical marijuana recommendations for certain
patients examined on three dates. A letter delivered with the
subpoena explained that the Board had received a complaint from
the Colorado Department of Public Health and Environment
(CDPHE) regarding Dr. Boland’s medical marijuana
recommendations. CDPHE had referred Dr. Boland for
investigation based on the “Medical Marijuana Registry’s physician
referral policy.”
¶ 45 According to the Board’s letter, that physician referral policy
enumerated three bases on which CDPHE would refer physicians to
the Board for investigation: (1) a caseload of 3521 or more medical
17
marijuana patient recommendations per year; (2) recommendations
of an increased plant count for more than thirty percent of patients;
or (3) a patient caseload in which over one-third of patients are
under the age of thirty. Dr. Boland had no knowledge of any such
referral policy when he received the subpoena. He refused to
produce the subpoenaed documents, leading the Board to file an
application for an order enforcing the subpoena. The district court
granted the Board’s application, a decision that Dr. Boland now
appeals.
¶ 46 Agency records obtained by Dr. Boland via a Colorado Open
Records Act request revealed that the drafting of the referral policy
began in the fall of 2013. An August 2014 email from the Board’s
program director detailed how, after a 2013 state audit, “CDPHE
reached out to [the Board] requesting assistance in developing
reporting parameters” for physicians who made medical marijuana
recommendations. The email further reveals that, “[a]fter a period
of extended silence from CDPHE, [the Board and Office of
Investigators (OI)] took a leadership role and frequently circled back

As the majority notes, that order has been stayed by the district
court, pending the outcome of this appeal.
18
with CDPHE to promote progression of the project. CDPHE
subsequently adopted an internal policy based on the criteria
identified and/or defined by the CDPHE/[Board]/OI workgroup.” In
May 2014, CDPHE issued the official referral policy, Medical
Marijuana Policy Number 2014-01 (Policy 2014-01). However,
Policy 2014-01 was not made public until April 2015. There were
no public meetings on Policy 2014-01.
¶ 47 Dr. Boland asserts on appeal, as he did in the district court,
that Policy 2014-01 was promulgated in violation of Colorado’s
Open Meetings Law and the State Administrative Procedure Act
(APA). He further contends that the Board’s subpoena is
unenforceable because it was based solely on a referral made
pursuant to the invalid Policy 2014-01. I agree.
¶ 48 An administrative subpoena is valid if (1) the subpoena and
investigation are for a lawfully authorized purpose; (2) the
information sought is relevant to the inquiry; and (3) the subpoena
is sufficiently specific to obtain documents that are adequate but
not excessive for the inquiry. Charnes v. DiGiacomo, 200 Colo. 94,
101, 612 P.2d 1117, 1122 (1980). Dr. Boland challenges the
subpoena’s validity on the basis of the first Charnes factor —
19
whether the subpoena and investigation had “a lawfully authorized
purpose.” Id. Unlike the majority, I conclude that the Board’s
subpoena was not issued for a lawful purpose because the policy
that prompted the investigation of Dr. Boland is void.
¶ 49 The majority assumes that Policy 2014-01 is invalid. In my
view, Policy 2014-01 is invalid because it was adopted in violation
of Colorado’s Open Meetings Law and the APA.
I. Validity of Policy 2014-01 Under Open Meetings Law
¶ 50 Under Colorado’s Open Meetings Law, “the formation of public
policy is public business and may not be conducted in secret.”
§ 24-6-401, C.R.S. 2017. Thus, “[a]ll 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” must be
open to the public at all times. § 24-6-402(2)(a), C.R.S. 2017.
Further, any meeting at which a proposed policy is adopted may be
held only after “full and timely notice to the public.”
§ 24-6-402(2)(c). A “state public body” includes any board or
“formally constituted body of any state agency.” § 24-6-402(1)(d)(I).
¶ 51 “No resolution, rule, regulation, ordinance, or formal action of
a state or local public body shall be valid unless taken or made at a
20
meeting” open to the public pursuant to the Open Meetings Law.
§ 24-6-402(8). Thus, any formal action taken at a meeting that
does not comply with the law’s requirements is “null and void.” Van
Alstyne v. Hous. Auth., 985 P.2d 97, 100-01 (Colo. App. 1999).
¶ 52 Dr. Boland maintains that Policy 2014-01 was promulgated in
violation of the Open Meetings Law. As the majority acknowledges,
the Board does not expressly dispute Dr. Boland’s contention. I
agree with Dr. Boland that Policy 2014-01 was adopted in violation
of the Open Meetings Law and is therefore void.
¶ 53 The purpose of the Open Meetings Law is to allow interested
members of the public to comment on public business. See Benson
v. McCormick, 195 Colo. 381, 383, 578 P.2d 651, 653 (1978) (stating
that the Open Meetings Law reflects the judgment that “democratic
government best serves the [state] if its decisional processes are
open to public scrutiny”). Here, physicians and other stakeholders
did not have an opportunity to weigh in on Policy 2014-01. Instead,
CDPHE and Board officials drafted the policy over the course of
multiple meetings held behind closed doors and without notice to
21
the public.2 I therefore conclude that Policy 2014-01 is void. See
§ 24-6-402(8).
II. Validity of Policy 2014-01 Under the APA
¶ 54 Moreover, I similarly find the policy invalid under Colorado’s
APA. An agency that is statutorily permitted to make rules must
follow procedures to give public notice and allow for public
comment under the APA. § 24-4-103, C.R.S. 2017. A “rule” is
defined as a “statement of general applicability and future effect
implementing, interpreting, or declaring law or policy or setting
forth the procedure or practice requirements of any agency.”
§ 24-4-102(15), C.R.S. 2017. The definition of “rule” includes a
2 I recognize that CDPHE is not a party to the present appeal and
has not been given an opportunity to assert here that it did not
violate the Open Meetings Law or the APA. However, I also
recognize that, in related litigation, a district court found that the
“policy was the product of about a dozen meetings and about a
dozen phone calls between staff members with [CDPHE] and staff at
the Board” and “was adopted and implemented without providing
public notice.” Order at 7-8, John Does v. Colo. Dep’t of Pub. Health
& Env’t, No. 15CV30902 (City & Cty. of Denver Dist. Ct. Oct. 4,
2016). Thus, the district court in that case found that CDPHE had
violated the Open Meetings Law in promulgating Policy 2014-01
and, while this court is not bound by that decision, I believe it is
persuasive. That decision is also the subject of an appeal to this
court. See John Does v. Colo. Dep’t of Pub. Health & Env’t, No.
16CA2011 (Colo. App. filed Nov. 22, 2016).
22
“regulation.” Id. “‘[S]ubstantial compliance’ with the rule-making
procedures established in [section] 24-4-103 is required, and an
agency’s failure to meet that standard renders a rule invalid.”
Studor, Inc. v. Examining Bd. of Plumbers of Div. of Registrations,
929 P.2d 46, 48 (Colo. App. 1996) (quoting § 24-4-103(8.2)(a)).
¶ 55 While the Board has statutory authority to “[a]dopt and
promulgate” rules, it is required to follow the provisions of the APA
in doing so. § 12-36-104(1)(a), C.R.S. 2017. Similarly, CDPHE, as
an agency under the APA, is bound to follow notice and comment
rulemaking procedures. See § 25-1.5-106(3), C.R.S. 2017
(establishing CDPHE’s authority to make rules concerning the
medical marijuana program). Here, there was no compliance with
the procedural notice and comment requirements. I thus conclude
that Policy 2014-01 is invalid under the APA.3
3 Dr. Boland also asserts that Policy 2014-01 violated article XVIII,
section 14(2)(c) of the Colorado Constitution and the First
Amendment of the United States Constitution. Because I conclude
that the policy was invalid under Colorado statutes, I need not
address these arguments. See City of Florence v. Pepper, 145 P.3d
654, 660 (Colo. 2006) (“Where possible, we avoid a constitutional
analysis in favor of a statutory resolution.”).
23
¶ 56 My conclusion would not inhibit CDPHE and the Board from
promulgating a policy concerning the criteria for referring a
physician to the Board for suspected misconduct under the medical
marijuana program. Indeed, it is possible that CDPHE and the
Board might have arrived at the same policy even after taking into
account public comment. Nevertheless, the agencies must comply
with the statutorily required procedures in adopting a physician
referral policy concerning physicians’ medical marijuana
recommendations. Policy 2014-01 was adopted without regard to
those statutory procedures and is thus void.
III. Enforceability of Subpoena
¶ 57 In light of my determination that Policy 2014-01 is invalid, I
would further conclude that the subpoena at issue here had no
lawful purpose and is therefore unenforceable. An issuing agency
has the burden of demonstrating the propriety of an issued
subpoena. Colo. State Bd. of Accountancy v. Arthur Andersen LLP,
116 P.3d 1245, 1248 (Colo. App. 2005). “If the agency fails to
demonstrate that the subpoena issued is for an authorized purpose,
the court must refuse to enforce it.” Id. The subpoena here was
based solely on the void policy. Because I conclude that — after
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setting aside the invalid Policy 2014-01 — there is no lawful
purpose for the investigation or subpoena, I would reverse the
district court’s order.
¶ 58 The Medical Practice Act sets forth the Board’s powers and
duties. See § 12-36-104; see also § 12-36-103(1)(a)(I), C.R.S. 2017
(creating the Board). One of the Board’s duties is investigating
allegations of “unprofessional conduct.” See § 12-36-117, C.R.S.
2017. To carry out this task, the Board is authorized to “[m]ake
investigations, hold hearings, and take evidence in all matters
relating to the exercise and performance of the powers and duties
vested in [it].” § 12-36-104(1)(b)(I). In the exercise of its
investigatory function, the Board can issue subpoenas to compel
production of “materials in any hearing, investigation, accusation,
or other matter coming before [it].” § 12-36-104(1)(b)(II); see also
§ 12-36-118(4)(a)(I)-(II), C.R.S. 2017 (authorizing Board inquiry
panel to “conduct a further investigation” after initiating or
receiving a written complaint).
¶ 59 Despite its broad investigatory power, the Board’s authority is
circumscribed by statute. In Board of Medical Examiners v. Duhon,
the supreme court concluded that a subpoena issued to investigate
25
a physician’s allegedly unprofessional conduct was invalid because
the Board had failed to comply with procedural requirements
concerning the timing of its investigation. 895 P.2d 143, 147, 149
(Colo. 1995); see also Colo. State Bd. of Med. Exam’rs v. Khan, 984
P.2d 670, 673-74 (Colo. App. 1999) (noting that the holding in
Duhon had been superseded by later statutory amendment but
finding no fault with the Duhon court’s logic). Notwithstanding the
Board’s concerns about the physician’s use of a particular
treatment therapy, the supreme court invalidated the Board’s
subpoena because it failed to adhere to the procedural
requirements for a proper investigation. Duhon, 895 P.2d at 149-
50.
¶ 60 The majority reads Duhon as narrowly holding that the Board
cannot issue a subpoena until it has commenced a disciplinary
investigation. Although Duhon specifically addressed the proper
timing of a Board subpoena, I read it more broadly to conclude that
the Board’s power to issue subpoenas, while expansive, nonetheless
remains limited by the other provisions of the Medical Practice Act.
See id. at 149. Indeed, as the Duhon court stated, “[t]he Board has
26
no inherent authority to issue administrative subpoenas.” Id. It
has only that authority explicitly granted by the statute. See id.
¶ 61 Here, the Board’s subpoena must find some lawful purpose in
the Medical Practice Act. Without Policy 2014-01 as its
justification, I see no authority for the subpoena. In the abstract,
as the majority notes, the Board may have had the authority to
initiate a complaint against Dr. Boland, even on its own motion, if it
suspected he had engaged in unprofessional conduct. See
§ 12-36-118(4)(a)(I). However, the Board does not point to any
provision in the extensive statutory definition of “unprofessional
conduct” that Dr. Boland was suspected of violating. Indeed, a
review of section 12-36-117 reveals that the Board can investigate
complaints regarding violations of validly adopted agency rules.
See, e.g., § 12-36-117(1)(u) (including in the definition of
“unprofessional conduct” the “[v]iolation of . . . any rule or
regulation promulgated by the board in conformance with law”)
(emphasis added); § 12-36-117(1)(mm) (including in definition of
“unprofessional conduct” the failure to comply with statute
authorizing medical marijuana program or “the rules promulgated
by [CDPHE] pursuant to section 25-1.5-106(3)”) (emphasis added).
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Given my conclusion that Policy 2014-01 is void, those provisions
cannot support the Board’s subpoena here. Without Policy 2014-
01, there was no basis for CDPHE to refer Dr. Boland to the Board;
in my view, the policy was void, the referral was void, and it is thus
as if there were no complaint at all to prompt the Board’s
investigation.
¶ 62 Looking to the Board’s disciplinary powers under section
12-36-118 as well as its investigatory powers under section
12-36-104, the majority concludes that the Board had a lawful
purpose for subpoenaing Dr. Boland’s patient records — namely,
“to ascertain whether he acted unprofessionally.” Supra ¶ 40.
However, the Board points to no evidence that its investigation was
based on any suspicion of unprofessional conduct, aside from the
alleged “violation” of Policy 2014-01.
¶ 63 Further, the majority agrees with the district court’s
assessment that Policy 2014-01 was CDPHE’s, not the Board’s, and
accordingly concludes that “CDPHE’s conduct does not determine
whether the Board acted lawfully in issuing the subpoena to Dr.
Boland.” Supra ¶ 34. Essentially, then, the majority would permit
the Board to issue a subpoena subsequent to launching any
28
investigation regardless of the source or propriety of the complaint
that initiated that investigation.
¶ 64 I disagree with that analysis for two reasons. First, the record
reflects the Board’s active involvement — indeed, a self-proclaimed
“leadership role” — in the development of Policy 2014-01. Thus, I
believe the record undermines any determination that the policy
was CDPHE’s alone. Second, and even taking into account the
Board’s investigatory authority, I disagree that the Board’s
authority to issue a subpoena is so unchecked. As Charnes
dictates, any subpoena must have “a lawfully authorized purpose.”
200 Colo. at 101, 612 P.2d at 1122. I cannot say that the Board
had a lawfully authorized purpose when it issued a subpoena based
on an invalid policy, even if the policy was ultimately issued by
CDPHE rather than the Board.
¶ 65 CDPHE and the Board worked together to create and adopt
Policy 2014-01, which I conclude is void. That policy was the sole
basis for CDPHE’s referral. I therefore further conclude that,
because the referral was invalidly based on the invalid policy, the
Board’s investigation and subpoena had no lawful purpose and
29
cannot be enforced. Because I would reverse the district court’s
order enforcing the Board’s subpoena, I respectfully dissent.
30