Colo. Med. Bd. v. Boland

2018 COA 39

• Court: Colorado Court of Appeals
• Decided: March 22, 2018
• Docket: 16CA1269
• Status: Published

Opinion

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Prior Opinion Announced January 18, 2018, WITHDRAWN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

24 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).

27 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.