2018 COA 41
Colo. Ct. App.2018Background
- Dr. Scott McLaughlin received a Board subpoena (duces tecum) for medical records of patients for whom he recommended medical marijuana; the subpoena followed a referral from CDPHE that tracked an internal "physician referral policy" (Policy 2014-01).
- Policy 2014-01 set numeric and demographic thresholds (e.g., number of recommendations, percent of under-30 patients, high plant/ounce recommendations) that would trigger referrals to the Colorado Medical Board (Board).
- The record showed CDPHE and Board staff collaborated on the policy in closed meetings; CDPHE adopted it May 15, 2014 but it was not publicly available until April 2015 and no public meeting occurred regarding adoption.
- A district court elsewhere found Policy 2014-01 void for violating Colorado’s Open Meetings Law and enjoined CDPHE from making referrals under it; McLaughlin refused to comply with the Board subpoena and the Board successfully sought enforcement in district court, which McLaughlin appealed.
- The Court of Appeals majority held Policy 2014-01 violated the Open Meetings Law and the APA, and because the Board’s investigation and subpoena were initiated solely on the basis of CDPHE’s referral under that invalid policy, the subpoena lacked a lawfully authorized purpose and enforcement was reversed.
Issues
| Issue | McLaughlin (Plaintiff) Argument | Colorado Medical Board (Defendant) Argument | Held |
|---|---|---|---|
| Validity of Policy 2014-01 | Policy was adopted in secret, without required public notice/comment, so it is void under the Open Meetings Law and APA | Policy is agency guidance; any procedural defects are CDPHE’s and do not invalidate the Board’s use of the referral | Policy was invalid under Open Meetings Law and APA because staff meetings and collaboration produced a rule without required public process (policy void) |
| Lawful purpose for subpoena | The Board’s subpoena derived solely from CDPHE’s referral based on the invalid policy; absent the policy/CDPHE referral there was no lawful basis to investigate => subpoena lacked lawful purpose | Even if the policy was invalid, the Board independently has authority to investigate physicians for unprofessional conduct and may initiate investigations (including exploratory inquiries) | Subpoena invalid: an administrative subpoena must be issued for a lawfully authorized purpose; because CDPHE’s referral (and thus the complaint triggering the investigation) was based solely on the void policy, the subpoena had no lawful purpose and enforcement was reversed |
| Injunctive relief to bar future subpoenas under Policy 2014-01 | Seeks permanent injunction against Board issuing subpoenas based on the invalid policy | Argues separation of powers, ripeness, standing and that injunctive relief is improper | Request for injunction against Board was moot as to McLaughlin because CDPHE already was enjoined from making referrals under the policy; no practical effect from additional injunction |
Key Cases Cited
- Van Alstyne v. Hous. Auth., 985 P.2d 97 (Colo. App. 1999) (actions taken at meetings in violation of Open Meetings Law are invalid)
- Wisdom Works Counseling Servs., P.C. v. Colo. Dep’t of Corr., 360 P.3d 262 (Colo. App. 2015) (standard of review for statutory interpretation and discussion of agency rulemaking compliance)
- Studor, Inc. v. Examining Bd. of Plumbers, 929 P.2d 46 (Colo. App. 1996) (agency rule invalid if it fails to substantially comply with APA rulemaking procedures)
- Charnes v. DiGiacomo, 612 P.2d 1117 (Colo. 1980) (standards for validity of administrative subpoenas: lawfully authorized purpose, relevance, specificity)
- Colo. State Bd. of Accountancy v. Arthur Andersen LLP, 116 P.3d 1245 (Colo. App. 2005) (agency bears burden to justify subpoena enforcement)
- Bd. of Med. Examiners v. Duhon, 895 P.2d 143 (Colo. 1995) (board subpoena power is statutory, not inherent, and limited by statutory constraints)
- United States v. Powell, 379 U.S. 48 (1964) (courts may inquire into an administrative summons’ underlying purpose to ensure legitimate purpose and avoid abuse)
- Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946) (administrative investigative power must be exercised in compliance with statute; limits on overbroad demands)
- United States v. Morton Salt Co., 338 U.S. 632 (1950) (an agency’s investigative authority is broad but not unlimited; subpoenas must be reasonably relevant and not excessive)