SUMMARY 

March 22, 2018 

2018COA41

No. 17CA0073, Colo. Med. Bd. v. McLaughlin — 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 

solely as a result of a physician referral policy promulgated in 

violation of the Open Meetings Law and the State Administrative 

Procedure Act. Because the Board had no basis for investigating 

the physician apart from the invalid physician referral policy, the 

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. 
subpoena had no lawful purpose. Accordingly, the majority 

reverses the district court’s judgment enforcing the subpoena. 

The dissent agrees with the majority in Colorado Medical 

Board v. Boland, 2018 COA 39, ___ P.3d ___, also announced today. 

Thus, the dissent would affirm the district court’s judgment 

enforcing the subpoena because, regardless of the lawfulness of the 

physician referral policy, the subpoena was issued pursuant to an 

investigation within the scope of the Board’s authority. 
COLORADO COURT OF APPEALS 2018COA41

Court of Appeals No. 17CA0073 

City and County of Denver District Court No. 16CV33460 

Honorable Jay S. Grant, Judge 

Colorado Medical Board, 

Petitioner-Appellee, 

v. 

Scott Storm McLaughlin, M.D., 

Respondent-Appellant. 

JUDGMENT REVERSED 

Division I 

Opinion by JUDGE TAUBMAN 

Harris, J., concurs 

Booras, J., dissents 

Announced March 22, 2018 

Cynthia H. Coffman, Attorney General, Russell B. Klein, Assistant Attorney 

General, Eric Maxfield, Assistant Attorney General, Sierra R. Ward, Assistant 

Attorney General, Denver, Colorado, for Petitioner-Appellee 

Hershey Decker, PLLC, Carmen N. Decker, Lone Tree, Colorado, for 

Respondent-Appellant 
1 

¶ 1 In this subpoena enforcement action, respondent, Dr. Scott 

Storm McLaughlin, appeals the district court’s judgment enforcing 

a subpoena issued by plaintiff, the Colorado Medical Board (Board). 

The Board’s subpoena sought the medical records of patients for 

whom Dr. McLaughlin had recommended the use of medical 

marijuana.1 On appeal, Dr. McLaughlin contends that the 

subpoena was not issued for a lawful purpose because the policy 

prompting the Board’s investigation was adopted in violation of 

Colorado’s Open Meetings Law, the State Administrative Procedure 

Act (APA), and the Colorado and United States Constitutions. We 

agree with Dr. McLaughlin that the subpoena did not have a lawful 

purpose, and therefore we reverse the district court’s judgment. 

¶ 2 At the outset, we recognize that another divided division of this 

court is announcing today Colorado Medical Board v. Boland, 2018 

 

1 Under the Colorado Constitution, a physician can provide “written 

documentation” stating that a patient has a “debilitating medical 

condition and might benefit from the medical use of marijuana.” 

Colo. Const. art. XVIII, § 14(2)(c)(II); see also § 25-1.5-106(2.5)(d)(II), 

C.R.S. 2017. Thus, a physician can recommend the use of medical 

marijuana and certify that a patient has a debilitating condition as 

defined by statute. § 25-1.5-106(5)(b), (c). However, a physician 

cannot “prescribe” marijuana. Beinor v. Indus. Claim Appeals 

Office, 262 P.3d 970, 973 (Colo. App. 2011). 
2 

COA 39, ___ P.3d ___, affirming the judgment of the district court 

enforcing a subpoena issued on the basis of the same challenged 

policy. In Boland, the division assumes that the policy is invalid, 

but nevertheless concludes that the subpoena there had a lawful 

purpose. For the reasons stated herein, we disagree with that 

analysis. 

I. Background 

A. The Subpoena 

¶ 3 Dr. McLaughlin, a physician licensed to practice in Colorado 

since 1985, received a subpoena duces tecum from the Board in 

June 2015. The subpoena ordered him to produce medical records 

for specific patients examined on ten dates ranging from August 

2014 through January 2015.2 

¶ 4 Dr. McLaughlin asserts, and the Board does not dispute, that 

the subpoena was issued by the Board after it had received a 

complaint from the Colorado Department of Public Health and 

Environment (CDPHE) related to Dr. McLaughlin’s medical 

marijuana recommendations. In fact, along with the subpoena, Dr. 

 

2 As Dr. McLaughlin notes, the Board issued a second subpoena 

requesting the same information in July 2016. 
3 

McLaughlin was sent a copy of CDPHE’s original complaint. The 

complaint referenced a policy that dictated that CDPHE would refer 

physicians on the basis of any of three enumerated criteria: (1) a 

specified number of medical marijuana recommendations per year; 

(2) recommendations of an increased plant or ounce count for a 

specified percentage of patients; or (3) a specified percentage of 

patients under the age of thirty.3 

¶ 5 Dr. McLaughlin objected to the Board’s subpoena, arguing 

that CDPHE’s referral policy was invalidly adopted. On that basis, 

he refused to produce the subpoenaed records. 

¶ 6 In September 2016, the Board filed an application for an order 

enforcing the subpoena, citing section 12-36-104, C.R.S. 2017. In 

January 2017, the district court granted the Board’s application 

and ordered Dr. McLaughlin to produce the subpoenaed records. 

The district court concluded that, although the physician referral 

policy was invalid, “the subsequent investigation and the subpoena 

[we]re for a lawfully authorized purpose — the duty to investigate 

 

3 We note that CDPHE’s complaint referring Dr. McLaughlin was 

not included in the record. However, the Board does not dispute 

that Dr. McLaughlin received the complaint, or that it described the 

physician referral policy as outlined here. 
4 

licensed physicians who may fail to meet generally accepted 

standards of medical practice.” The district court subsequently 

stayed enforcement of the order pending this appeal. 

B. The Physician Referral Policy 

¶ 7 As a result of a Colorado Open Records Act request filed with 

CDPHE, the Board, and the Department of Regulatory Agencies 

(DORA)4 in connection with related litigation, Dr. McLaughlin 

obtained public records concerning the drafting of the physician 

referral policy. The record on appeal in this case includes 

correspondence provided by these agencies in response to the Open 

Records Act request. 

¶ 8 Specifically, the Board produced internal communications 

detailing the policy’s evolution and adoption. The correspondence 

revealed that CDPHE officials and Board members began discussing 

the referral policy in the fall of 2013. A July 2014 email from the 

 

4 The Board is housed within DORA. § 24-1-122(3)(m)(I), C.R.S. 

2017. DORA administers the Board through “budgeting, 

purchasing, planning, and related management functions.” § 24-1-

105(1), C.R.S. 2017. However, the Board independently exercises 

its “prescribed statutory powers, duties, and functions, including 

rule-making, regulation, licensing, and registration, [and] the 

promulgation of rules, rates, regulations, and standards.” Id.
5 

Board’s program director stated that she “had a t/c with [the 

director of the medical marijuana registry] in January 2014 and 

met in person with him in April 2014 re: parameters for reporting.” 

An August 2014 email also 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 read, “After a period of extended silence from CDPHE, 

[the Board and Office of Investigators (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.” 

¶ 9 A December 2014 email from the Medical Marijuana Program’s 

manager stated, “[W]e are in the process of updating our referral 

policy with DORA. I have been meeting with DORA and internal 

leadership on this topic and we are still working out the details.” 

Another email from that same date from CDPHE’s director similarly 

detailed that the agencies were “in the process” of developing the 
6 

referral policy and acknowledged, “[I]t’s misleading to state that we 

do not have a policy, as one is under development.” 

¶ 10 CDPHE officially implemented the physician referral policy on 

May 15, 2014. The policy, titled “Medical Marijuana Policy Number 

2014-01” (Policy 2014-01), stated that CDPHE would refer 

physicians to the Board for investigation on the basis of any of the 

following: (1) 3521 or more recommendations for medical marijuana 

per year; (2) recommendations for an increased marijuana plant or 

ounce count for more than thirty percent of patients, or a 

particularly high recommendation for any individual patient; or (3) 

a caseload in which over one-third of patients were under the age of 

thirty. 

¶ 11 Dr. McLaughlin alleges, and the Board does not dispute, that 

the policy was not available to the public until April 2015, nearly a 

year after its implementation, and that no public meeting was ever 

held regarding the adoption of Policy 2014-01. 

C. Related Litigation 

¶ 12 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 
7 

who were referred to the Board based on Policy 2014-01. Five of 

these enforcement actions have been stayed pending this appeal. 

The sixth subpoena enforcement action has been appealed to this 

court. As noted, another division of this court decides that case 

today. Boland , 2018 COA 39, ___ P.3d ___. 

¶ 13 Dr. McLaughlin and eight other physicians directly challenged 

the validity of the policy in yet another action. In that case, the 

district court dismissed the relevant claims against the Board, 

stating that Policy 2014-01 had been developed by CDPHE and 

thus, “[i]f this policy was in fact unlawfully adopted and is 

ultimately declared void, any injunctive relief would necessarily be 

aimed at CDPHE to prohibit it from referring cases to [the Board] 

under the void policy.” 

¶ 14 The district court later ruled that Policy 2014-01 was void. 

Specifically, the 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). Because 
8 

the district court concluded the policy had been adopted in violation 

of the Open Meetings Law, it 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). 

D. CDPHE and the Board 

¶ 15 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. 

See generally § 25-1.5-106. CDPHE is required to promulgate rules 

governing certain aspects of the medical marijuana 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”). 

¶ 16 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 
9 

“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).5 

¶ 17 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 

 

5 Additionally, CDPHE can refer a physician to the Board if it has 

reasonable cause to believe he or she has violated section 14 of 

article XVIII of the Colorado Constitution, or subsections (a) 

through (c) of section 25-1.5-106(5), which list various 

requirements for physicians who recommend medical marijuana to 

patients. Dr. McLaughlin contends, and the Board does not 

dispute, that CDPHE’s referral in this case was based solely on the 

criteria listed in Policy 2014-01, not on a suspected violation of the 

Colorado Constitution or of subsection 25-1.5-106(5)(a)-(c). 
10 

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). 

¶ 18 The Board is also permitted to make rules as it “may deem 

necessary or proper to carry out the provisions and purposes” of the 

Medical Practice Act. § 12-36-104(1)(a). 

II. Analysis 

¶ 19 As relevant here, Dr. McLaughlin contends that Policy 

2014-01 was adopted in violation of Colorado’s Open Meetings Law 

and the APA. As a result, he argues, the Board’s subpoena was not 

issued for a lawful purpose because the subpoena arose from 

CDPHE’s referral, which was based solely on the illegally adopted 

policy. We agree. 

A. Standard of Review 

¶ 20 Statutory interpretation presents a question of law that we 

review de novo. Wisdom Works Counseling Servs., P.C. v. Colo. Dep’t 

of Corr., 2015 COA 118, ¶¶ 11-12, 360 P.3d 262, 265. 
11 

B. The Validity of Policy 2014-01 

¶ 21 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). 

¶ 22 “No 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). § 24-

6-402(8). In short, a formal action taken at a meeting that does not 

comport 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, ¶ 25, 360 P.3d at 267. 

¶ 23 Dr. McLaughlin asserts that Policy 2014-01 was promulgated 

in violation of the Open Meetings Law. The Board does not 
12 

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.” We agree with Dr. McLaughlin that Policy 2014-01 

was adopted in violation of the Open Meetings Law and further 

conclude that the Board, through its staff, participated in the 

improper promulgation of the policy. 

¶ 24 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 

the public. We therefore conclude that Policy 2014-01 is invalid. 

See § 24-6-402(8). 

¶ 25 We reach a similar conclusion under the APA. An agency that 

is statutorily permitted to make rules must follow procedures to 
13 

give public notice and allow for public comment under the APA. 

§ 24-4-103, C.R.S. 2017. A “rule” is defined by the APA 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 “regulation.” Id. 

“‘[S]ubstantial compliance’ with the rule-making procedures 

established in § 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)). 

¶ 26 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). Similarly, CDPHE, as an agency 

under the APA, is bound to follow notice and comment rulemaking 

procedures. See § 25-1.5-106(3). Here, there was no compliance 
14 

with the procedural notice and comment requirements, and thus 

the rule is also invalid under the APA.6 

¶ 27 Our conclusion in no way signifies that CDPHE and the Board 

could not promulgate 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 Board must comply 

with the statutory procedures before it may adopt a physician 

referral policy concerning medical marijuana recommendations by 

physicians. We conclude that because of the procedural 

deficiencies, Policy 2014-01 is void. 

C. The Validity of the Subpoena 

¶ 28 An administrative subpoena is valid if (1) the subpoena and 

investigation are for a lawfully authorized purpose; (2) the 

 

6 Dr. McLaughlin 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 we 

conclude that the policy is invalid under Colorado statutes, we need 

not reach these arguments. 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.”). 
15 

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). 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.

¶ 29 Dr. McLaughlin limits his appeal to the first prong of the 

Charnes test — whether the investigation and subpoena had a 

lawful purpose. He contends that, because the referral from 

CDPHE was based only on the unlawfully adopted Policy 2014-01, 

the subpoena issued by the Board as a result of CDPHE’s referral 

had no lawful purpose. In contrast, the Board contends that, even 

if Policy 2014-01 were invalid, it nevertheless had the authority to 

issue the subpoena for the purpose of investigating whether Dr. 

McLaughlin had engaged in unprofessional conduct. Indeed, the 

district court adopted the Board’s argument in enforcing the 
16 

subpoena. However, we agree with Dr. McLaughlin that the 

subpoena was not issued for a lawful purpose. 

¶ 30 Despite its expansive powers under the Medical Practices Act, 

the Board’s investigatory authority is circumscribed by statute. In 

Board of Medical Examiners v. Duhon, the supreme court concluded 

that a subpoena issued to investigate 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) (concluding that the holding of Duhon had been 

superseded by later statutory amendment but finding no fault with 

the Duhon court’s logic). The Duhon court concluded that the 

Board’s power to issue subpoenas, while broad, remains limited by 

the other provisions of the Medical Practice Act. Duhon, 895 P.2d at 

149. Indeed, “[t]he Board has no inherent authority to issue 

administrative subpoenas.” Id. It has only that authority explicitly 

granted by the statute. See id. 

¶ 31 Given that its subpoena power is not inherent, the Board must 

find some lawful purpose in the Medical Practice Act to support the 
17 

subpoena here. However, absent Policy 2014-01, there is no 

authority for the issuance of the Board’s subpoena. 

¶ 32 In the abstract, the Board may have had the authority to 

initiate a complaint against Dr. McLaughlin, even on its own 

motion, if it suspected he had engaged in unprofessional conduct.7 

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. McLaughlin 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 

 

7 We note that Dr. McLaughlin asserts, and the Board does not 

contest, that the Board could not have obtained the records 

subpoenaed here absent a referral from CDPHE because the 

information was maintained in a confidential registry. See Colo. 

Const. art. XVIII, § 14(3)(a) (“No person shall be permitted to gain 

access to any information about patients in the state health 

agency’s confidential registry, or any information otherwise 

maintained by the state health agency about physicians and 

primary care-givers, except for authorized employees of the state 

health agency in the course of their official duties . . . .”). As a 

practical matter, then, it may well have been impossible for the 

Board to investigate Dr. McLaughlin absent the referral from 

CDPHE. However, we express no opinion as to whether the 

Colorado Constitution invalidates either Policy 2014-01 or the 

subpoena at issue on this basis. 
18 

“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 the 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). 

Because Policy 2014-01 was not validly adopted, those provisions 

have no relevance here. 

¶ 33 Similarly, as already noted, CDPHE can refer a physician to 

the Board for investigation if it “has reasonable cause to believe” 

that a physician violated rules promulgated pursuant to its 

rulemaking authority. § 25-1.5-106(6)(a). However, given that 

Policy 2014-01 was not promulgated pursuant to its rulemaking 

authority, CDPHE had no reasonable basis for referring Dr. 

McLaughlin to the Board. Without Policy 2014-01, there was no 

basis for CDPHE’s referral to the Board; because 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. 

¶ 34 During oral argument, the Board asserted that the purpose of 

Policy 2014-01 was to allow CDPHE to make referrals on the basis 
19 

of its “suspicion” that a physician had violated the statutes 

governing medical marijuana certification. Yet, the Board also 

acknowledged that the criteria enumerated in Policy 2014-01 were 

not necessarily indicative of any misconduct, much less a violation 

of the medical marijuana laws; instead, any determination that a 

physician had violated the Medical Practice Act could be made only 

after an investigation. To the extent that the Board argued that 

Policy 2014-01 served as a proxy to measure possible misconduct, 

we disagree because an alleged “violation” of an invalid policy could 

not provide a lawful basis for suspecting misconduct. 

¶ 35 The Board relies on a 1946 Supreme Court case, Oklahoma 

Press Publishing Co. v. Walling, 327 U.S. 186 (1946), in support of 

its argument that it can initiate an investigation without any 

suspicion of misconduct and may engage in a “fishing expedition.” 

We consider the Board’s reliance on Walling misplaced. 

¶ 36 First, in that case, the Supreme Court looked to a federal 

agency’s virtually unchecked statutory power to conduct 

investigations; the relevant agency was expressly authorized to 

enter and inspect such places and such 

records (and make such transcriptions 

thereof), question such employees, and 
20 

investigate such facts, conditions, practices, or 

matters as [the agency’s Administrator] may 

deem appropriate to determine whether any 

person has violated any provision of [the Fair 

Labor Standards Act], or which may aid in the 

enforcement of the provisions of th[e] Act. 

Id. at 199 (quoting 29 U.S.C. § 211(a) (1946)). Turning to the 

agency’s subpoena power, the Walling Court specifically noted that 

“[n]othing in the [legislative history of the Act] suggests that the 

power was not to be exercised, or that subpoenas issued in 

compliance with the terms of the statute were not to be enforced, 

exactly in accordance with the authority given.” Id. at 198 n.22. 

Thus, the subpoena in Walling was lawful because the agency acted 

in “exact compliance” with the statute authorizing its investigations. 

Id. at 201. In fact, the Court contrasted its holding in Walling with 

another case in which the Court wrote that “nothing short of the 

most explicit [statutory] language” would permit “fishing expeditions 

into private papers on the possibility that they may disclose 

evidence of crime.” Id. at 201 n.27 (quoting Fed. Trade Comm’n v. 

Am. Tobacco Co., 264 U.S. 298, 306 (1924)).8

 

8 The Board similarly overstates the significance of United States v. 

Powell, 379 U.S. 48 (1964), and United States v. Morton Salt Co., 
21 

¶ 37 Moreover, the Board’s reliance on Walling mistakenly blurs the 

distinction between an agency’s authority to initiate an 

investigation and the lawfulness of any subpoena issued pursuant 

to that investigation. The Board maintains that it can lawfully 

subpoena a physician’s records as part of a “fishing expedition.” 

While that position is inconsistent with the Supreme Court 

decisions discussed above, we are not required here to determine 

the level of suspicion that would justify a Board investigation. The 

issue we address is the validity of the Board’s subpoena, not the 

propriety of the investigation itself. As Charnes dictates, any 

subpoena must have “a lawfully authorized purpose.” 200 Colo. at 

101, 612 P.2d at 1122. We have determined that the subpoena 

here had no lawful purpose. 

 

338 U.S. 632 (1950). In Powell, the Court rejected the argument 

that an administrative summons could only issue on probable 

cause, but noted that a court can “inquire into the underlying 

reasons” for the summons to ensure “that the investigation will be 

conducted pursuant to a legitimate purpose.” 379 U.S. at 57, 58. 

In Morton Salt, the Court similarly affirmed the Federal Trade 

Commission’s power to require companies to file reports stating 

compliance with a court decree, noting that “there are limits to 

what, in the name of reports, the Commission may demand,” but 

not “attempt[ing] to define” those limits. 338 U.S. at 653. 
22 

¶ 38 Accordingly, we conclude that the district court erred in 

enforcing the subpoena. 

III. Injunctive Relief 

¶ 39 Dr. McLaughlin asserts that the proper remedy is to 

permanently enjoin the Board from issuing subpoenas based on 

Policy 2014-01. 

¶ 40 The Board sets forth several arguments regarding this court’s 

jurisdiction to enjoin it from issuing further subpoenas under the 

policy. Specifically, it argues that the court lacks subject matter 

jurisdiction to grant injunctive relief because (1) separation of 

powers principles preclude such a remedy; (2) the claim is not ripe; 

and (3) Dr. McLaughlin lacks standing. 

¶ 41 We conclude that the issue of injunctive relief is moot insofar 

as it would prevent the Board from issuing future subpoenas to Dr. 

McLaughlin based on alleged “violations” of Policy 2014-01. As 

noted, a district court enjoined CDPHE from making further 

referrals on the basis of Policy 2014-01. We have determined that 

the district court erred in enforcing the subpoena in this case. 

Because CDPHE cannot again refer Dr. McLaughlin to the Board on 

the basis of the invalid policy, “the [injunctive] relief sought, if 
23 

granted, would have no practical legal effect.” State Bd. of 

Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 970 (Colo. 1997). 

IV. Conclusion 

¶ 42 The district court’s judgment enforcing the subpoena is 

reversed. 

JUDGE HARRIS concurs. 

JUDGE BOORAS dissents. 

 
24 

JUDGE BOORAS, dissenting. 

¶ 43 I would affirm the trial court’s judgment for the reasons stated 

in Colorado Medical Board v. Boland, 2018 COA 39. Therefore, I 

respectfully dissent from the majority opinion. 

¶ 44 Additionally, I would reject the majority’s conclusion that the 

subpoena in this case “had no lawful purpose,” and was therefore 

an improper “fishing expedition.” 

¶ 45 The concept of “an illegal fishing expedition” in the area of 

administrative law has evolved greatly in recent times. See Sec. & 

Exch. Comm’n v. Arthur Young & Co., 584 F.2d 1018, 1029-30 (D.C. 

Cir. 1978). As the United States Court of Appeals for the Tenth 

Circuit has noted: 

The law governing the limits on the 

administrative power of investigation has 

evolved from the earlier judicial condemnation 

of fishing expeditions to that of enforcement of 

the subpoena power ‘if the inquiry is within 

the authority of the agency, the demand is not 

too indefinite and the information sought is 

reasonably relevant.’ 

Equal Emp’t Opportunity Comm’n v. Univ. of New Mexico, 

Albuquerque, 504 F.2d 1296, 1302 (10th Cir. 1974) (quoting United 

States v. Morton Salt Co., 338 U.S. 632, 652 (1950)). In this appeal, 
25 

Dr. McLaughlin challenges only whether the subpoena was for a 

lawfully authorized purpose; he does not contest its breadth or 

relevancy. 

¶ 46 Whether an investigation is for a lawfully authorized purpose 

rests on whether it is within the scope of the agency’s authority. 

For example, while the Board has broad authority to investigate 

matters related to the practice of medicine, it would not have the 

authority to investigate whether a physician built his residence in 

violation of a local ordinance or a statute regulating the building of 

homes. 

¶ 47 Importantly, the Board’s authority to investigate matters 

related to the practice of medicine does not depend on receiving a 

complaint. The majority faults the Board for not identifying which 

provision of the statutory definition of unprofessional conduct it 

suspected Dr. McLaughlin was violating. However, an 

administrative agency 

can investigate merely on suspicion that the 

law is being violated, or even just because it 

wants assurance that it is not. When 

investigative and accusatory duties are 

delegated by statute to an administrative body, 

it, too, may take steps to inform itself as to 

whether there is probable violation of the law. 
26 

Morton Salt Co., 338 U.S. at 642-43 (comparing the investigative 

power of an administrative agency to the powers of a grand jury). 

¶ 48 The majority points to language in Oklahoma Press Publishing 

Co. v. Walling, 327 U.S. 186 (1946), and Federal Trade Commission 

v. American Tobacco Co., 264 U.S. 298, 306 (1924), as disapproving 

“fishing expeditions.” However, the concerns in those cases were 

directed at the breadth and relevance of an administrative 

subpoena, rather than its purpose. See Walling, 327 U.S. at 209 

(stating that beyond requirement that an investigation be 

authorized by Congress, reasonableness “comes down to 

specification of the documents to be produced adequate, but not 

excessive, for the purposes of the relevant inquiry”); Am. Tobacco 

Co., 264 U.S. at 306 (“It is contrary to the first principles of justice 

to allow a search through all the respondents’ records, relevant or 

irrelevant, in the hope that something will turn up.”). In contrast, 

as noted above, Dr. McLaughlin does not challenge the breadth or 

relevance of the subpoena at issue in this case. So the question 

here is whether the Board had the authority to issue the subpoena. 

¶ 49 By statute the Board has authority to investigate “matters 

relating to the exercise and performance of the powers and duties 
27 

vested in the board,” including possible discipline for 

unprofessional conduct. §§ 12-36-104(1)(b)(I), 12-36-117, C.R.S. 

2017. The Board may start an investigation based upon a citizen 

complaint, but it also has the authority to initiate and investigate a 

complaint itself. § 12-36-118(4)(a)(I), C.R.S. 2017; Bd. of Med. 

Exam’rs v. Duhon, 895 P.2d 143, 147 (Colo. 1995). Because the 

Board has the authority to investigate without receiving a 

complaint, its investigation is not “tainted” by any violation of the 

Colorado Open Meetings Law (OML) by a different agency, even if 

that agency forwarded a complaint to the Board. The underlying 

basis for issuing the subpoena is irrelevant if the Board had 

authority to issue it. 

¶ 50 As the majority recognizes, the Supreme Court stated in 

United States v. Powell, 379 U.S. 48 (1964), that courts may inquire 

into the underlying reasons for a summons under circumstances 

rising to the level of an abuse of process. The Court’s examples of 

such appropriate circumstances reflected on the good faith of an 

investigation and included harassing a taxpayer or pressuring him 

into settling a collateral dispute. Reliance on a referral policy that 

was promulgated in violation of the OML by CDPHE does not 
28 

constitute bad faith or harassment by the Board. Therefore, I 

would disagree with the majority’s conclusion that the subpoena 

here had no lawful purpose. 

¶ 51 Accordingly, I respectfully dissent.