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ADVANCE SHEET HEADNOTE November 12, 2019

No. 18SC330, Colorado Medical Board v. McLaughlin—Administrative Law— Colorado Medical Board—Disciplinary Procedures—Subpoenas.

In this case, the supreme court is asked to determine whether an

investigative subpoena issued by the Colorado Medical Board (the “Board”) can

have a lawfully authorized purpose if the investigation was prompted by a

complaint made by the Colorado Department of Public Health and Environment

(the “CDPHE”) pursuant to a policy that violated the Open Meetings Law (the

“OML”) or the State Administrative Procedure Act (the “APA”).

In Doe v. Colorado Department of Public Health & Environment,

,

__ P.3d __, which the supreme court also decides today, the court concludes that

(1) the CDPHE, as a state agency, is not a “state public body” under the OML and

therefore could not violate that statute and (2) the CDPHE did not violate the APA

in developing the policy at issue or in referring doctors to the Board under that

policy. For this reason alone, the court necessarily rejects the respondent’s argument that the investigative subpoena lacked a lawfully authorized purpose

because it was based on a policy that violated the OML and the APA.

Even if the CDPHE’s adoption of the policy at issue and its reliance on it

were invalid, however, the supreme court concludes that the Board’s investigative

subpoena had a lawfully authorized purpose because it was issued pursuant to

the Board’s statutory authority to investigate allegations of unprofessional

conduct and was properly tailored to that purpose.

Accordingly, the court reverses the judgment of the division below and

remands this case for further proceedings consistent with this opinion. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 18SC330 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA73

Petitioner:

Colorado Medical Board,

v.

Respondent:

Scott Storm McLaughlin, M.D.

Judgment Reversed en banc November 12, 2019

Attorneys for Petitioner: Philip J. Weiser, Attorney General Ashley E. Moller, Senior Assistant Attorney General Sierra Ward, Senior Assistant Attorney General Denver, Colorado

Maxfield Gunning, LLP Eric H. Maxfield Boulder, Colorado

Attorneys for Respondent: Hershey Decker Drake Carmen Nicole Decker Kaylyn Peister Lone Tree, Colorado JUSTICE GABRIEL delivered the Opinion of the Court.

2 ¶1 In this case, we are asked to determine whether an investigative subpoena

issued by the Colorado Medical Board (the “Board”) can have a lawfully

authorized purpose if the investigation was prompted by a complaint made by the

Colorado Department of Public Health and Environment (the “CDPHE”)

pursuant to a policy that violated the Open Meetings Law (the “OML”) or the State

Administrative Procedure Act (the “APA”).1

¶2 In Doe v. Colorado Department of Public Health & Environment,

,

__ P.3d __, which we also decide today, we conclude that (1) the CDPHE, as a state

agency, is not a “state public body” under the OML and therefore could not violate

that statute and (2) the CDPHE did not violate the APA in developing the policy

at issue or in referring doctors to the Board under that policy. For this reason

alone, we necessarily reject Scott McLaughlin’s argument that the investigative

subpoena lacked a lawfully authorized purpose because it was based on a policy

that violated the OML and the APA.

1 We granted certiorari to review the following issue:

Whether an agency investigative subpoena can have a lawfully authorized purpose even if the investigation was prompted by a complaint from a different agency under a referral policy that violated the Open Meetings Law or Administrative Procedure Act.

3 ¶3 Even if the CDPHE’s adoption of the policy at issue and its reliance on it

were invalid, however, we still would conclude that the Board’s investigative

subpoena had a lawfully authorized purpose because it was issued pursuant to

the Board’s statutory authority to investigate allegations of unprofessional

conduct and was properly tailored to that purpose.

¶4 Accordingly, we reverse the judgment of the division below and remand

this case for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶5 McLaughlin is a physician licensed to practice medicine in Colorado. As

part of his practice, he evaluates patients to see if they have a qualifying condition

that would benefit from the use of medical marijuana.

¶6 Information related to medical marijuana in Colorado is maintained by the

CDPHE in a confidential registry that includes the names of all patients who have

applied for and are entitled to receive a marijuana registry identification card, as

well as the names and contact information for the patients’ physicians and, if

applicable, their primary caregivers. Colo. Const. art. XVIII, § 14(3)(b); Dep’t of

Pub. Health and Env’t, 5 Colo. Code Regs. 1006-2:1(A) (2019). If the CDPHE has

reasonable cause to believe that a physician has violated either section 14 of article

XVIII of the state constitution, section 25-1.5-106(5)(a)–(c), C.R.S. (2019), or the

rules promulgated by the CDPHE pursuant to section 25-1.5-106(3), all of which

4 govern physicians who certify medical conditions for applicants to the medical

marijuana program, then the CDPHE may refer the matter to the Board for an

investigation and determination. § 25-1.5-106(6); 5 Colo. Code Regs. 1006-2:8(B)

(2019).

¶7 In May 2014, the CDPHE implemented Medical Marijuana Policy

No. 2014-01 (“the Referral Policy”). The Referral Policy provides that the CDPHE

will use its statistical reviews of physician medical marijuana recommendations to

determine whether reasonable cause exists to refer a physician to the Board for

investigation. Factors to be considered include (1) whether a physician has a high

caseload, as determined by the number of patients for whom medical marijuana is

recommended (a high caseload is calculated as 3,521 or more patient

recommendations in one year); (2) whether a physician recommended increased

plant counts for more than thirty percent of his or her caseload; and (3) whether

more than one-third of the physician’s patient caseload is under the age of thirty.

The CDPHE referred McLaughlin to the Board for investigation on the ground that

he allegedly exceeded one of these thresholds.

¶8 Thereafter, the Board served a subpoena duces tecum on McLaughlin,

ordering him to produce his complete medical records for certain identified

patients whom he examined on specified dates between August 2014 and January

2015. The Board informed McLaughlin that this subpoena was part of an

5 investigation into his medical marijuana recommendations for a possible violation

of the Colorado Medical Practice Act, §§ 12-240-101 to -145, C.R.S. (2019).2 The

Board further advised McLaughlin that its investigation was based on a complaint

that the Board had received about him from the CDPHE pursuant to the Referral

Policy.

¶9 McLaughlin refused to comply with the subpoena, arguing that the Referral

Policy was adopted in violation of the Colorado Constitution, the APA, and the

OML. The Board subsequently reissued the subpoena, but McLaughlin again

refused to comply, and the Board sought an ex parte order in the Denver District

Court to enforce the subpoena.

¶10 McLaughlin then moved to quash the subpoena, arguing that (1) it stemmed

from the CDPHE’s violation of the OML, (2) action taken in violation of the OML

is null and void, and (3) the subpoena therefore was not issued for a lawful

purpose.

¶11 The district court ultimately denied McLaughlin’s motion to quash.

Although by the time of the court’s ruling the court had determined that the

2Effective October 1, 2019, the Colorado Medical Practice Act was relocated from article 36 of title 12 to article 240 of the same title. For convenience, we will cite the Act in accordance with its current location in the Colorado Revised Statutes.

6 Referral Policy violated the OML, the court nevertheless concluded that the

Board’s investigation and subpoena were for a lawfully authorized purpose,

namely, the Board’s duty to investigate licensed physicians who may fail to meet

generally accepted standards of practice.

¶12 McLaughlin appealed, and in a split, published opinion, a division of the

court of appeals reversed the district court’s order enforcing the subpoena. Colo.

Med. Bd. v. McLaughlin,

,

. In so ruling, the majority first

concluded that the Referral Policy was invalid under both the OML and the APA

because the CDPHE and Board “officials” had drafted that Policy without public

meetings, public notice, or compliance with applicable notice and comment

rulemaking procedures.

at ¶¶ 23–26, 425 P.3d at 1192–93.

¶13 The majority then addressed the Board’s authority to investigate

complaints. The division opined that (1) although the Board may have had the

authority to initiate a complaint against McLaughlin if it suspected that he had

engaged in “unprofessional conduct,” the Board had not pointed to any provision

in the statutory definition of “unprofessional conduct” that McLaughlin was

suspected of violating; (2) although the Board can investigate complaints

regarding validly adopted agency rules, the Referral Policy was not validly

adopted; and (3) although the CDPHE could refer a physician to the Board if it had

reasonable cause to believe the physician had violated rules promulgated

7 pursuant to the CDPHE’s rulemaking authority, the Referral Policy was not such

a rule.

at ¶¶ 32–33,

. The majority thus concluded, “[B]ecause

the [Referral 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.” Id. at ¶ 33,

.

¶14 Finally, the majority rejected the Board’s argument that even if the Referral

Policy and the referral were void, the investigation and subpoena were still valid

because the Board can initiate an investigation even without suspicion of

misconduct.

at ¶¶ 35–37, 425 P.3d at 1194–95. In so ruling, the majority

specifically rejected the Board’s reliance on Oklahoma Press Publishing Co. v.

Walling,

(1946). McLaughlin, ¶¶ 35–37, 425 P.3d at 1194–95. In the

majority’s view, the subpoena in Walling was “lawful because the agency acted in

‘exact compliance’ with the statute authorizing its investigations.” Id. at ¶ 36,

(quoting Walling,

). This distinguished Walling from

the circumstances in the present case, where, according to the majority, the Board

had issued a subpoena that had no lawful purpose (because an alleged violation

of an invalid policy could not provide a lawful basis for suspecting misconduct).

Id. at ¶¶ 34, 37,

.

¶15 Judge Booras dissented, noting that under prevailing authority, courts

determine the validity of a subpoena by asking whether it was issued within the

8 scope of the agency’s authority.

at ¶¶ 45–46,

(Booras, J.,

dissenting) (citing Equal Emp’t Opportunity Comm’n v. Univ. of N.M.,

(10th Cir. 1974)). She then opined that the subpoena at issue was within the

scope of the Board’s authority for four reasons.

¶16 First, she noted that the Board’s authority to investigate matters related to

the practice of medicine does not depend on receiving a complaint. McLaughlin,

¶ 47,

. Indeed, in her view, an administrative agency can

investigate solely based on its suspicion that the law was being violated.

¶17 Second, she distinguished Walling on the ground that there, the Supreme

Court was concerned not with the subpoena’s purpose, but with its breadth and

relevance to the subject matter of the investigation. Id. at ¶ 48,

.

¶18 Third, she observed that by statute, the Board has authority to

(1) “investigate ‘matters relating to the exercise and performance of the powers

and duties vested in the board,’” including allegations of unprofessional conduct;

and (2) start an investigation on its own motion or based on a citizen complaint.

Id. at ¶ 49,

(quoting § 12-240-106(1)(b)). Because the Board’s

authority to investigate was not dependent on receiving a complaint, its

investigation was not “tainted” by any violation of the OML by a different agency,

even if that agency had forwarded the complaint that formed the basis of the

Board’s investigation. Id.

9 ¶19 Finally, Judge Booras noted that although courts may inquire into the

underlying reasons for a summons when a party alleges an abuse of process (e.g.,

harassment or bad faith), reliance on a referral policy that the CDPHE

promulgated in violation of the OML did not rise to that level. Id.

¶20 The Board petitioned this court to review the division’s judgment, and we

granted that petition.

II. Analysis

¶21 We begin by reciting the applicable standards of review. We then proceed

to apply our holding in Doe to this case, and we conclude that because neither the

CDPHE’s adoption of the Referral Policy nor its referral of McLaughlin to the

Board violated the OML or the APA, the premise of McLaughlin’s argument that

the subpoena at issue lacked a lawful purpose is unfounded and therefore his

challenge to the subpoena fails. Finally, we consider whether the subpoena was

issued for a lawfully authorized purpose even if the Referral Policy could be said

to have been adopted in violation of the OML and the APA, and we conclude that

it was.

A. Standard of Review

¶22 Statutory interpretation presents a question of law that we review de novo.

All. for a Safe & Indep. Woodmen Hills v. Campaign Integrity Watchdog, LLC,

, __ P.3d __. In construing statutes, we seek to give effect to the General

10 Assembly’s intent. Id. at ¶ 21. We read words and phrases in context, according

them their plain and ordinary meanings. Id. If the language is clear, we apply it

as written and need not resort to other tools of statutory interpretation. Id.

¶23 The question of whether an administrative subpoena had a lawfully

authorized purpose generally presents a mixed question of law and fact because

it involves the application of a legal standard to a particular set of evidentiary facts.

See Mt. Emmons Mining Co. v. Town of Crested Butte,

(Colo. 1984).

Here, however, the parties do not dispute the underlying facts or the purpose for

the subpoena. They dispute only the legal determination of whether that purpose

was “lawfully authorized.” We therefore review the division’s legal conclusions

on this issue de novo. State Farm Mut. Auto. Ins. Co. v. Johnson,

,

.

B. Doe v. CDPHE

¶24 In Doe, ¶¶ 14–46, which we also decide today, we affirmed the division’s

conclusions that (1) the CDPHE could not violate the OML when it adopted the

Referral Policy because the CDPHE is not a “state public body” as defined in the

OML and therefore is not subject to the OML’s requirements; (2) the Referral

Policy is an interpretive rule and thus the CDPHE was not required to follow APA

rulemaking requirements when it drafted the policy; and (3) the CDPHE’s referral

11 of the physicians in that case to the Board did not constitute final agency action

and therefore was not subject to the APA.

¶25 In light of these conclusions, McLaughlin’s assertion that the subpoena

lacked a lawfully authorized purpose because it was issued as a result of a referral

made under a policy that violated the OML and the APA is based on a faulty

premise and therefore cannot prevail.

C. “Lawfully Authorized Purpose”

¶26 Even if the Referral Policy could be said to have been adopted in violation

of the OML and the APA, however, we would reach the same result.

¶27 Seizure of administrative records through an administrative agency

subpoena is valid if (1) the investigation pursuant to which the subpoena was

issued is 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,

(Colo. 1980). If a party challenges an administrative subpoena, then the

issuing agency bears the burden of demonstrating the propriety of the subpoena.

Colo. State Bd. of Accountancy v. Arthur Andersen LLP,

(Colo.

App. 2005). Here, McLaughlin contests only the first requirement, namely,

whether the subpoena had a lawfully authorized purpose.

12 ¶28 Although we have not considered the meaning of the phrase “lawfully

authorized purpose” in the context of a subpoena issued by the Board, in Charnes,

, we considered the meaning of that phrase in the context of a

taxpayer’s challenge to a Department of Revenue subpoena for certain financial

records that was issued to the taxpayer’s bank. We concluded that the

investigation pursuant to which the subpoena was issued was for a lawfully

authorized purpose because the Department had a statutory duty to enforce

Colorado’s tax laws and the information sought related to the accuracy of the

taxpayer’s return and the amount of his income, both of which were relevant to

the Department’s enforcement efforts.

.

¶29 In our view, the same reasoning applies here.

¶30 The legislative declaration of the Colorado Medical Practice Act

declares it to be in the interests of public health, safety, and welfare to enact laws regulating and controlling the practice of the healing arts to the end that the people shall be properly protected against unauthorized, unqualified, and improper practice of the healing arts in this state, and this article 240 shall be construed in conformity with this declaration of purpose.

§ 12-240-102.

¶31 To carry out these purposes, the legislature created the Board and gave it

the authority to “[m]ake investigations, hold hearings, and take evidence in

accordance with section 12-20-403 in all matters relating to the exercise and

performance of the powers and duties vested in the board.”

13 §§ 12-240-105, -106(1)(b). Section 12-20-403(2), C.R.S. (2019), in turn, authorizes

regulators like the Board to “issue subpoenas compelling the attendance of

witnesses and the production of all relevant records, papers, books, documentary

evidence, and materials in any hearing, investigation, accusation, or other matter

before the regulator” and to enforce those subpoenas in the district court if

necessary.

¶32 Finally, section 12-240-125(4)(a) provides, “Written complaints relating to

the conduct of a licensee licensed or authorized to practice medicine in this state

may be made by any person or may be initiated by an inquiry panel of the board

on its own.” This section further provides for notice to the subject licensee, an

opportunity for the licensee to respond to the allegations, and further proceedings

before an inquiry panel. Id.

¶33 Here, the Board had a statutory duty to investigate, among other things,

complaints relating to the conduct of a licensee licensed or authorized to practice

medicine in Colorado. Moreover, the subpoena at issue sought information that

was directly related to the exercise of that statutory duty, namely, patient records

that would enable the Board to determine whether McLaughlin’s medical

marijuana recommendations complied with applicable law. Thus, under Charnes,

612 P.2d at 1122–23, the subpoena was issued for a lawfully authorized purpose.

14 ¶34 Our conclusion in this regard finds further support in the text of section

12-240-125(4)(a)(I) of the Colorado Medical Practice Act, which, as noted above,

authorizes the Board to act on a written complaint from “any person” or on a

complaint initiated by the Board itself. The Act nowhere conditions the Board’s

investigatory or disciplinary authority or its authority to issue subpoenas on the

legal validity of the process that resulted in the underlying complaint. Nor does

the Act require the Board to investigate the legal validity of that process. Indeed,

such a requirement would be contrary to the Act’s purposes.

¶35 As noted above, the legislature enacted the Colorado Medical Practice Act

to ensure that the people shall be properly protected against the unauthorized,

unqualified, and improper practice of the healing arts in Colorado. § 12-240-102.

Toward that end, the legislature created the Board and authorized it, among other

things, to investigate complaints relating to the conduct of those licensed or

authorized to practice medicine in Colorado. §§ 12-240-105, -106(1)(b), -125(4)(a).

Were we to adopt the position that McLaughlin espouses in this case, the focus of

the Board’s efforts would shift from carrying out its statutory duties of

investigating and remedying substantive allegations of improper medical practice

to investigating the referral source in every case before pursuing its statutory

duties. We perceive no basis for imposing such a requirement on the Board. To

the contrary, doing so could potentially jeopardize public health and safety (e.g.,

15 by precluding or forestalling legitimate investigations into physician misconduct),

thereby undermining the very purposes of the Act.

¶36 For all of these reasons, we conclude that the subpoena had a lawfully

authorized purpose, regardless of whether the Referral Policy was adopted in

violation of either the OML or the APA.

¶37 We are not persuaded otherwise by Board of Medical Examiners v. Duhon,

(Colo. 1995), on which the majority below relied. That case

principally involved a question of when in the course of an investigation the Board

is authorized to issue an administrative subpoena.

at 146–48. This case does

not present such a timing issue. Moreover, Duhon expressly did not address the

question now before us (i.e., whether the subpoena was reasonable under the test

adopted in Charnes) because the record there was insufficient to allow a court to

evaluate the reasonableness of the subpoena at issue.

. Accordingly,

Duhon is inapposite.

III. Conclusion

¶38 Because neither the adoption of the Referral Policy nor the referral of

McLaughlin to the Board violated the OML or the APA, McLaughlin’s contention

that the subpoena served on him was void because it was the product of a referral

made in violation of the OML and APA is based on a flawed premise and therefore

is unpersuasive. Even if the adoption of the Referral Policy and the referral itself

16 violated the OML or the APA, however, we still conclude that the Board’s

subpoena to McLaughlin had a lawfully authorized purpose because in issuing

the subpoena, the Board was acting within the scope of its statutory authority to

investigate complaints relating to the conduct of a person licensed or authorized

to practice medicine in Colorado and the subpoena was properly tailored to that

purpose.

¶39 Accordingly, we reverse the judgment of the division below and remand

this case for further proceedings consistent with this opinion.

17