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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
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).
BY THE COURT:
__________________________________________
Jay S. Grant
District Court Judge