     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.




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