Suit: Regulators policed doctors
Colorado policy was hidden from the public for years
A lawsuit that accused Colorado regulators of quietly and illegally concocting a policy to police doctors who recommend medical marijuana to patients was entirely hidden from public view during a nearly three-year court battle, secreted behind a judge’s order to keep it that way, The Denver Post has found.
The case in Denver District Court was brought in March 2015 by nine physicians against the Colorado Department of Public Health and Environment (CDPHE), which regulates and maintains the state’s medical marijuana registry, and the Colorado Medical Board, which regulates doctors. A judge initially agreed with the doctors’ assertion that the policy was created illegally, but an appeals court overturned that decision late last month.
“There is no justification for concealing the entire file of a case with such a high-degree of public interest,” said Frank LoMonte, director of The Brechner Center for Freedom of Information at the University of Florida. “This is more egregious because you have a case that implicates the behavior of a government agency.”
The lawsuit is just one of thousands, including felony criminal cases, that a Denver Post investigation found were hidden from the public, some of them for years and all the result of judges’ orders that are also suppressed.
The doctors, each listed only as a John Doe because the judge gave them anonymity protection, challenged the process the state used to create the policy, saying it was
secretive and lacked public input or public hearings, a violation of Colorado’s open meetings laws. As such, they argued, any referral to the Medical Board was illegitimate, as well as any subsequent investigation.
Denver District Judge Jay Grant’s decision in October 2016 found that CDPHE had violated open-meetings laws. He ordered the agency to stop relying on the rule to refer doctors to the Medical Board for investigation, but allowed the board to continue its investigations anyway.
The policy adopted in 2014 laid out three criteria that could cause the health department to refer a doctor to the Medical Board for investigation:
• Recommending patients grow more than 24 marijuana plants (contrary to state law that limits it to six) without substantiating a medical necessity;
• Having a patient list in which one-third or more of their clients are under the age of 30;
• Having a patient caseload higher than 3,251.
The policy was the result of a 2013 state audit that found CDPHE, the state’s gatekeeper to medical marijuana, had lax regulation of physicians and a general failure in overseeing caregivers.
“This policy was adopted and implemented without providing public notice and during which no minutes from meetings were taken,” Grant wrote. “Furthermore, the formulation of this policy does not appear to be based on any scientific or medical evidence.”
Grant’s decision was also suppressed.
The Colorado Court of Appeals on July 26 ruled the state broke no laws and the policy was created properly. Lawyers for the doctors said they would appeal.
Hidden from the outset
Although the court battle continues over whether the agencies had operated in secrecy in adopting the policy, The Post found that the legal process that evaluated the alleged activity was hidden.
From the day the lawsuit was filed and throughout the nearly three years the case was litigated in district court — a process that included depositions from government employees and officials, as well as evidence of how the policy was kept secret — the details of the government’s alleged misconduct remained suppressed from the public.
That meant no trace of the case appeared on any courthouse database where the public can track lawsuits filed in Colorado, nor on the state-recommended services that require a fee. There was no complaint to review; there were no court records available of any kind.
It was as if it didn’t exist at all.
Although courtrooms are open even for a suppressed case, the only way to know when a hearing is to be held is to be in court when it was scheduled. But that wouldn’t have mattered in the John Does lawsuit, The Post found, because only two hearings happened in all the years the case was pending — and one of those was a teleconference not ordinarily open to the public.
The doctors’ attorney, Carmen Decker, said even though the doctors were already identified only as John Doe #1, John Doe #2, and so on, she asked for the suppression order because she feared other court documents might unintentionally show the doctors’ real names.
Neither Denver District Judge Morris Hoffman, who granted the suppression request, nor Grant responded to Denver Post emails regarding the suppression.
LoMonte said granting the doctors anonymity is not a good reason to suppress the entire case.
“This is about the integrity of a government rulemaking process and the attorney general should have spoken up for that interest of the public, but the judge should have done it on their own.”
According to Decker, Colorado Attorney General Cynthia Coffman’s office, which defended the state agencies, never objected to the suppression. A spokeswoman for Coffman said she had no comment.
The Post acquired copies of the judges’ orders because they were inadvertently included in the appellate records of other lawsuits in which other doctors have challenged the same secret rules and the subsequent Medical Board investigations against them. Those cases were not suppressed.
The appeals in the John Does case are also not suppressed.
The Post has been able to identify eight of the nine anonymous doctors because lawsuits the Medical Board separately filed to enforce investigation subpoenas against them, though also suppressed, are now included in the state’s court-records databases and referred to by their case numbers in appellate documents.
The doctors are still practicing and the state’s investigations have been put on hold pending the outcome of the case and its appeals.
No suppressed case — not the names of the parties or the outcome — was available on the state’s public computer databases until The Post began investigating the practice several months ago. Since then, the state has included the case numbers and the names of those involved among electronic courthouse records, though the documents behind them, such as the complaint detailing allegations in a lawsuit, remain protected.
In its investigation, The Post found that more than 6,000 civil and criminal cases have been suppressed from the public since 2013. Of those, more than 3,000 remain suppressed, the bulk of them criminal cases that include misdemeanors and felonies. The newspaper found another 66 felony cases that remained suppressed even after the defendant was convicted and sentenced, some to a lengthy prison term.
“The trend of courts suppressing cases and rendering decisions in secret, particularly where decisions and actions of Colorado executive branch agencies are the subject of the court action, could have the effect of eroding public confidence in our system of government,” attorney Marc Flink, a board member with the Colorado Freedom of Information Coalition and former counsel to the Rocky Mountain News, told The Post in an email. “It is particularly important that the conduct of agencies and the decisions of the courts be open and subject to public scrutiny.”
Suppression should be rare
Though no laws or specific rules exist for suppressing a criminal case, there is extensive court precedence on when a civil lawsuit can be hidden from the public.
But they are supposed to be rare and for a limited period of time.
The rules governing civil court procedure say judges can limit access to court files, but the nature of the limitation must be specified, as well as the duration of the limitation and the reason. And “limited access shall not be granted except upon a finding that the harm to the privacy of a person in interest outweighs the public interest.”
The Colorado Supreme Court in 1996 found it was a “generally insufficient” reason to claim the file contains “extremely personal, private, and confidential matters,” or that there was “prospective injury to reputation.”
The Post found that judges’ orders suppressing court cases, as well as the rationale behind them, have also been suppressed from the public, so there’s no easy method of checking why cases are restricted or whether the reasoning is proper. It would take a special court hearing to challenge a suppression order.
“The whole reason for transparency is to allow people to engage in government and, if needed, to hold it accountable,” said Amanda Gonzalez, executive director of Colorado Common Cause. “When processes are happening in secret, and the courts are helping them remain secret, there is no way for the public to know what’s happening, and that’s problematic.”
The suppressed decision in the Dr. John Does case already has been referred to in other cases involving physicians investigated for their medical marijuana recommendations, several of them also on appeal.
The medical board pursued investigative subpoenas in court — all of them under suppression orders — while the John Doe case continued to wind its way through the appeals process.
Other doctors under investigation began to sue, but all were named and their lawsuits were public.
Two of them ultimately got their cases to the state appellate court, which split in their decision: one side saying the Medical Board’s investigations were void because the health department referrals should never have occurred under Grant’s ruling; the other saying the investigations were just fine and could continue.
The competing decisions — along with the John Does decision reached by the appellate court — are all due to be appealed either to a full hearing of the entire Appellate Court or directly to the Colorado Supreme Court.
All of those cases will be public.