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DISTRICT COURT

CITY & COUNTY OF DENVER, COLORADO


1437 Bannock Street
Denver, Colorado 80202

DATE FILED: October 4, 2016 1:44 PM


CASE NUMBER: 2015CV30902

John Does #1-9


Petitioners,
v.
Colorado Department of Public Health and
Environment, et al.
Respondents.

COURT USE ONLY

Case Number:
2015CV30902
Courtroom: 209

ORDER

This matter came for hearing before the Court on September 29, 2016 on
cross motions for summary judgment and for injunctive relief. The Court has
considered the pleadings, evidence and arguments of the parties and hereby
finds and orders as follows:
Summary judgment is a drastic remedy and should be granted only if it
has been clearly established that the moving party is entitled to a judgment as
a matter of law. Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d 223, 225-26
(Colo. 2001). The court may grant a motion for summary judgment when the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a

matter of law. C.R.C.P. 56(c); Bebo Constr. Co. v. Mattox & OBrien, P.C., 990
P.2d 78, 83 (Colo. 1999). Summary judgment may not be granted when
pleadings and affidavits show material facts in dispute. GE Life & Annuity
Assurance Co. v. Fort Collins Assemblage, Ltd., 53 P.3d 703, 706 (Colo. App.
2001).
A material fact is one that will affect the outcome of the case. Struble v.
Am. Family Ins. Co, 172 P.3d 950, 955 (Colo. App. 2007); Krane v. St. Anthony
Hosp. Sys., 738 P.2d 75, 76 (Colo. App. 1987). The moving party has the initial
burden of showing no genuine issue of material fact exists; the burden then
shifts to the nonmoving party to establish that there is a triable issue of
fact. AviComm, Inc. v. Colo. Pub. Utils. Commn, 955 P.2d 1023, 1029 (Colo.
1998). If the moving party meets its burden, the non-moving party must set
forth specific facts demonstrating the existence of a real controversy. C.R.C.P.
56(e). To survive summary judgment, the non-moving party must present
sufficient evidence to demonstrate that a reasonable jury could decide in its
favor. Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo. 2007). A court is to
view all evidence properly before [it] in the light most favorable to the
nonmoving party, give the nonmoving party the benefit of all favorable
inferences that may reasonably be drawn from the evidence, and resolve all
doubts as to the existence of a material fact against the moving party. Wilson
v. Prentiss, 140 P.3d 288, 290 (Colo. App. 2006).

Background
The matters for this Court to decide are three-fold. First, may the
Petitioners seek review of the actions of CDPHE through Colorados
Administrative Procedure Act (CAPA), 24-4-103. Second, if such a review is
warranted, did CDPHE, in promulgating and subsequently implementing the
referral policy, violate the open meetings law. And third, if there is a violation
of the Colorado Open Meetings Law what is the remedy?
In June of 2013, the Office of the State Auditor released a Performance
Audit of the Medical Marijuana Regulatory System. The Audit found that the
Department does not have sufficient oversight of physicians to ensure they are
making appropriate recommendations for marijuana. The Audit
recommended, among other things, that the Department work with the Medical
Board (Board) to determine risk factors to identify potentially inappropriate
physician recommendation and to establish guidelines for making physician
referrals.
As a result of the Audit, the Department began drafting criteria to use in
making referrals in the summer of 2013. Efforts to establish this criteria
included less than a dozen meetings and about a dozen or more phone calls
between Medical Marijuana Program staff members and Colorado Medical
Board staff. The public was not noticed on any of these meetings. On May 15,
2014, Medical Marijuana Policy Number 2014-01 was issued, signed by then
Director of the Medical Marijuana Registry, Ronald Hyman. Policy Number
2014-01 was titled, Physician Referrals to the Department of Regulatory

Agencies / Medical Board, and it established the criteria for referring


physicians to the Department of Regulatory Agencies (DORA) Medical Board
for investigation. The Medical Board would then investigate and evaluate
physician conduct and take licensing actions as deemed appropriate.
As part of Policy 2014-01, the Department implemented specific criteria
and procedures for identifying physicians to be referred to the Medical Board.
The criteria established three factors to be considered: 1) patient caseload (a
high caseload was calculated as 3,521 or more patient recommendations in one
year for a general practitioner); 2) plant and ounce recommendations
(physicians who recommended a plant count above 24 plants / 8 ounces for
any one patient without substantiating medical necessity evidence); and 3) age
demographics (physicians for whom more than one-third of the patient
caseload is under the age of 30).
On June 2, 2014, John Does #1-8 were referred to the Medical Board by
CDPHE pursuant to Policy 2014-01. On February 5, 2015, John Doe #9 was
referred to the Medical Board pursuant to the same policy. It appears from the
record that CDPHE never provided public notice of Policy 2014-01 prior to the
referral of the Petitioners to the Medical Board.
Administrative Procedure Act and Review of the Medical Marijuana
Policy 2014-01
The Respondents argue that the Petitioners are not entitled to injunctive
relief or declaratory relief because the Colorado Administrative Procedure Act
does not apply to the Departments physician referrals. The Petitioners assert

that the CAPA only provides for judicial review of final agency actions and that
the referral to the Board of Medicine is not a final agency action since the
Petitioners may seek relief from that Board and therefore have not exhausted
all administrative remedies. The Court disagrees with this analysis.
Then Governor of the State of Colorado, Bill Owens, issued Executive
Order, D 001 01, on February 5, 2001. This order designated the Colorado
Department of Public Health and Environment for purposes of Article XVIII
14(1)(g) of the Colorado State Constitution. That order specifically states, I
designate the Colorado Department of Public Health and Environment as the
state health agency for the purposes of subsection1(g) of the amendment
(emphasis added). In addition, Article XVIII (1)(h) provides that the State
health agency means the public health related entity of state government
designated by the governor to establish and maintain a confidential registry or
patients authorized to engage in the medical use of marijuana and enact rules
to administer this program. The Court finds that by referring the physicians to
the Medical Board, the Department is making a final agency action.
The Court also finds that the referral to the Medical Board is not merely
a referral as the Respondent asserts. Rather, the referral acts as a complaint
and, as a result, confers injury upon those referred. The Courts interpretation
of the impact of the referral may be seen in Petitioners Exhibit H in which one
of the John Doe physicians is notified by DORA that The Colorado Medical
Board has received the attached complaint regarding your conduct as a
licensed physician, more specifically, a possible violation of the Medical

Practice Act. The Court finds that petitioners have suffered injury which also
provides for relief from this Court under the CAPA.
The Colorado Open Meetings Law
The Colorado Open Meetings Law (COML) is codified at 24-6-401,
C.R.S. The COML is intended to afford the public access to a broad range of
meetings at which public business is discussed. Benson v. McCormick, 578
P.2d 651, 652 (Colo. 1978). Pursuant to the COML, any meeting of two or
more members of a public body should be open to the public if any business is
being discussed or if formal action may be taken. 24-6-402(2)(a). A public
body is any board, committee, commission, or other advisory, policy-making,
rule-making, decision making, or formally constituted body of any state
agency. 24-6-402(1)(d). If the public body is considering the adoption of any
proposed policy, position, resolution, rule, regulation, or formal action then the
meeting may only be held after full and timely notice to the public. 24-6402(2)(c). A resolution, rule, regulation, ordinance, or formal action is only
valid if the meeting where it is adopted meets the requirements of subsection
(2) of the COML.
The courts of record of this state shall have jurisdiction to issue
injunctions to enforce the purposes of the COML upon application by any
citizen of this state. In any action in which the court finds a violation of this
section, the court shall award the citizen prevailing in such action costs and
reasonable attorney fees. 24-6-402(9)(b).

The Colorado Open Meetings Law and the Departments adoption


and implementation of Policy 2014-01
Judge Hoffman issued an order on October 16, 2015 addressing
CDPHEs Partial Motion to Dismiss which was filed on July 17, 2015. In that
order, Judge Hoffman addressed the Respondents assertion that CDPHE was
not acting as a state public body and therefore was not subject to the open
meeting law. Judge Hoffman found that there was legislative tension in 251.5-106(3)(a) and (b) and that he was reluctant to resolve the issue at that time.
On February 24, 2016, the deposition of Ronald S. Hyman was taken.
Mr. Hyman was the Director of the Medical Marijuana Registry within the
CDPHE when Policy 2014-01 was adopted and when the John Does were
referred to the Board. In this deposition, Mr. Hyman testified that the CDPHE
was the state agency responsible for promulgating rules setting reasonable
cause standards for referral of physicians to the Medical Board. This rule
making authority is also echoed in 25-1.5-106(3): The state health agency
shall, pursuant to section 14 of article XVIII of the state constitution,
promulgate rules of administration concerning the implementation of the
medical marijuana program . . .
This Court finds that the Policy 2014-01 was not the product of informal
meetings among the Departments staff members regarding an internal
administrative policy. Rather, this policy was the product of about a dozen
meetings and about a dozen phone calls between staff members with the
Department and staff at the Board for the purpose of alerting the Board to

investigate physicians. This policy was adopted and implemented without


providing public notice and during which no minutes from meetings were
taken. Furthermore, the formulation of this policy does not appear to be based
on any scientific or medical evidence.
The Medical Board Investigations
The final issue for the Court to examine is what remedial action, if any,
may be available to the Court. Judge Hoffman addressed this issue in detail in
his October 14, 2015 Order and this Court agrees with Judge Hoffmans
analysis. I find 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 referrals. As Judge Hoffman stated in his Order, If this policy
was in fact unlawfully adopted and is ultimately declared void, any injunctive
relief would necessarily be aimed at CDHPE to prohibit it from referring cases
to CMB under the void policy. Nothing at all about the policy prevents CMB
from initiating its own investigations based on whatever information that
comes to it from whatever source, proper or improper.
Accordingly, this Court finds that the promulgation and implementation
of Policy 2014-01 (renamed Medical Marijuana Policy 2015-04-004) was in
violation of the COML and that this Policy is, therefore, invalid. The Court
hereby orders Respondents to immediately cease and desist from enforcing this
Policy. Furthermore, pursuant to statute, the Petitioners are awarded their
reasonable attorneys fees and costs as permitted by law.

So Ordered This 4th day of October, 2016

BY THE COURT:

__________________________________________
Jay S. Grant
District Court Judge