Colorado’s second-highest court on Thursday directed a trial judge to evaluate whether the state’s health department responded reasonably by imposing a $600 fee on a man’s request for records about the administration of ketamine by paramedics.

At the same time, a three-judge panel for the Court of Appeals took umbrage at the inflammatory language Frank Sturgell’s lawyer employed, including the assertion that doctors and regulators “allowed medical licenses to be pimped out” for the allegedly improper use of ketamine.

Such characterization “diminishes the rule of law, the reputation of counsel, and the legal merits of a party’s position. Sturgell and his counsel are warned that such future conduct may result in the summary dismissal of the subject appeal,” wrote Judge Timothy J. Schutz in a rare rebuke from the bench.

Sturgell filed suit in Denver against the Colorado Department of Public Health and Environment after making a slew of public records requests. At the time, the department’s Emergency Medical Practice Advisory Council evaluated applications from emergency medical providers to use ketamine, a sedative that played a role in the 2019 death of Elijah McClain.

Following McClain’s killing, the legislature curtailed paramedics’ use of ketamine and the attorney general’s office brought criminal charges against the officers and paramedics who restrained and sedated him.

Sturgell sought 49 waivers approved by the advisory committee authorizing the use of ketamine. The health department responded that it would take 20 hours of staff time to process the request, at a cost of $600. Sturgell, who was homeless, deemed the fee an effective denial of his open records request.

Sturgell sued, asking for access to the records, and he also sought to shut down the advisory council based on allegations that it failed to receive the necessary approval from the legislature to continue operating.

In a June 2023 order, District Court Judge Kandace C. Gerdes dismissed Sturgell’s lawsuit, concluding without elaboration that she lacked jurisdiction because Sturgell “does not have standing to bring these claims. There has been no alleged personal injury to Plaintiff.”

“Defendants hide behind the random $600 fee they came up with for supplying a 2-page document at their fingertips. They claim that this is not the same as a denial. But when you are homeless and penniless, as Mr. Sturgell was at the time he was making these requests, a $600 fee is the same as a denial,” responded Anita Springsteen, Sturgell’s attorney on appeal. “Are only those with money are permitted access to public documents? It seems the Defendants think so.”

The appellate panel agreed Gerdes’ brief conclusion that Sturgell lacked standing was incorrect. Taking Sturgell’s allegations as true, the health department’s $600 fee was unreasonable to process fewer than 100 pages of documents, without any required follow-up by the department after he moved to sue.

“We recognize that Sturgell’s allegations are just that — allegations — not proven facts,” acknowledged Schutz in the Aug 8 opinion. But “we conclude that Sturgell asserted sufficient facts that, if established at a hearing or trial, would support the conclusion that he suffered injury in fact to a legally protected interest. Thus, we conclude that the district court erred by dismissing the (open records) claims.”

Schutz noted that in another recent appeal by Sturgell, in which he represented himself, a different appellate panel called out his incendiary arguments. This time, Schutz warned Springsteen that her similar language, along with her failure to comply with the appellate rules, made the court’s job harder.

“While such conduct is never excusable, it is particularly problematic in this case because Sturgell was represented by counsel in the district court and on appeal,” he wrote. “A central role of counsel is to provide dispassionate, reasoned analysis distilled through the lens of professional and ethical arguments.”

Although the panel returned the case to Gerdes to analyze whether Sturgell could litigate his open records claims, it agreed he lacked standing to challenge the legality of the advisory council itself.

The case is Sturgell v. Colorado Department of Public Health and Environment et al.