JESSICA PECK v. BETH MCCANN, in her official capacity as the District Attorney of the Second Judicial District, State of
Civil Action No 19-cv-03450-RBJ
March 11, 2021
Judge R. Brooke Jackson
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This case involves a constitutional challenge to a portion of the Colorado Children‘s Code Records and Information Act,
I. FACTUAL BACKGROUND
The parties submitted a Joint Statement of Stipulated Facts. ECF No. 60. All undisputed facts below are drawn from that document. Facts drawn from any other source are noted as such.
A. The parties
Plaintiff Jessica Peck is an attorney licensed to practice law in the State of Colorado. She advocates on behalf of parents in Colorado juvenile courts in matters governed by the Colorado Children‘s Code, Title 19 of the Colorado Revised Statutes. ECF No. 60 at ¶¶ 4-5.
Defendant Beth McCann is the District Attorney for the Second Judicial District, which consists of the same geographic area of the City and County of Denver. Id. at ¶ 7. The District Attorney for the Second Judicial District is charged with enforcing the criminal laws of the State of Colorado for offenses committed within the City and County of Denver, by and through the prosecution of criminal charges alleging the violation of such laws. Id. at ¶ 8.
Defendant Michelle Barnes is the Executive Director of the Colorado Department of Human Services (“the Department“). Id. at ¶ 9. The Department supervises and provides policy direction for Colorado‘s child welfare system, which is administered by Colorado‘s sixty-four counties through local Departments of Human Services. Id.
B. Child welfare services in Colorado
Child abuse is one of the most difficult crimes to protect against. There are often no witnesses except the victim. Children often feel guilt and vulnerability associated with their abuse. These negative feelings are amplified when the abuser is a parent or loved one. Id. at ¶ 52. Children are generally more likely to report abuse when they are assured that their identifying information will remain confidential and protected from public disclosure. Id. Disclosure of information that identifies an abused or neglected child may be detrimental to the child, particularly if it discloses circumstances of the abuse or neglect. Id. at ¶ 51. Children and their families who are subject to a child abuse or neglect investigation may experience stigma when their confidential information—including that contained in records or reports of child abuse or neglect—is disclosed in an identifying manner. Id. at ¶ 53.
In Colorado, child welfare services include child protection, risk assessment, and case management. Id. at ¶ 9. The Colorado
The Department promulgates regulations to effectuate its functions and responsibilities, including with respect to child welfare referral and assessment. Child welfare regulations are codified in the Colorado Code of Regulations,
If an individual has concerns about an investigation into a report of child abuse or neglect, e.g. regarding the conduct of a caseworker or licensed social worker, there are numerous ways that individual can voice his or her concern. For example, the state has a Child Protection Ombudsman. Id. at ¶ 22. The Child Protection Ombudsman is independent from state and county agencies that investigate cases of suspected child abuse or neglect, including the Colorado Department of Human Services and Denver Human Services. Id. at ¶ 24. Members of the public may submit a complaint to the ombudsperson online through a form. The website also includes the office‘s physical address and other contact information. Id.
Concerns regarding child welfare activities may also be raised with Denver Human Services. Individuals may use online forms, the main telephone number, or they may contact current or former caseworkers. Id. at ¶ 21. All complaints and grievances are directed to a Denver Human Services employee for review, investigation, and response. Individuals who submit their complaint or grievance through a certain form are informed that they may also submit their concern to the Federal Office of Civil Rights or the Colorado Department of Human Services. Id. If an individual is not satisfied with Denver Human Services’ response to his or her complaint or grievance, the individual may request further review by the Human Services Citizen Review Panel. See Denver Rev. Mun. Code §§ 2-253 to 2-255.7. However, this process has not been utilized in recent years because members of the public have instead chosen to file complaints with the Child Protection Ombudsman of Colorado. ECF No. 60 at ¶ 21.
Additionally, the Colorado Department of Human Services has an Institutional Abuse Review Team (“IART“). Id. at ¶ 25. The IART is a citizen review panel that reviews institutional assessments done by counties. Its work is authorized under
A member of the public may also file a complaint with the State of Colorado‘s Department of Regulatory Agencies (“DORA“) regarding the conduct of a licensed or clinical social worker, including those employed as county caseworkers. Id. at ¶ 26. DORA regulates and provides oversight of licensed and clinical social workers with the assistance of the Colorado State Board of Social Work Examiners. Complaints may be filed via DORA‘s online form. Id. Finally, an individual can submit a general complaint to the City and County of Denver by dialing 3-1-1 or by submitting an online form. Complaints or inquiries related to Human Services will be forwarded to that department for response. Id. at ¶ 20.
C. CAPTA and the Colorado Children‘s Code
The Child Abuse Prevention and Treatment Act (“CAPTA“), found at
[T]he State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes . . . methods to preserve the confidentiality of all records in order to protect the rights of the child and the child‘s parents or guardian, including requirements ensuring that reports and records made and maintained pursuant to the purposes of this [Act] shall only be made available to [specified persons, entities, and agencies].
CAPTA explicitly allows for disclosure of child abuse records to the following: individuals who are the subject of the report; federal, state, or local government entities, or any agent of such entities that needs the information in order to carry out its legal responsibilities to protect children from child abuse and neglect; child abuse citizen review panels; child fatality review panels; a grand jury or court, upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; and other entities or individuals authorized by the state pursuant to a legitimate state purpose.
The Colorado Children‘s Code Records and Information Act,
Generally speaking, the Children‘s Code permits judicial departments, agencies, and attorneys for both the agencies and individuals in delinquency or dependency and neglect proceedings to exchange information in order to conduct oversight, refer services and support, investigate cases, and conduct case management.
Disclosure of the name and address of the child and family and other identifying information involved in such reports shall be permitted only when authorized by a court for good cause. Such disclosure shall not be prohibited when there is a death of a suspected victim of child abuse or neglect and the death becomes a matter of public record or the alleged juvenile offender is or was a victim of abuse or neglect or the suspected or alleged perpetrator becomes the subject of an arrest by a law enforcement agency or the subject of the filing of a formal charge by a law enforcement agency.
There are two criminal sub-provisions in
Any person who improperly releases or who willfully permits or encourages the release of data or information contained in the records and reports of child abuse or neglect to persons not permitted access to such information by this section or by section 19-1-303 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. [imposing minimum six months’ imprisonment or five hundred dollar fine].
There are many exceptions to the non-disclosure rule of
The Children‘s Code also includes
[S]hall publicly review the responses of public and private agencies to each reported incident of child abuse or neglect, publicly state whether the responses were timely, adequate, and in compliance with the provisions of this part 3, and publicly report nonidentifying information relating to any inadequate responses, specifically indicating the public and private agencies involved. . . . After this mandatory public discussion of agency responses, a child protection team established pursuant to subsection (6)(a) of this section shall go into executive session upon the vote of a majority of the child protection team members to consider identifying details of the case being discussed; discuss confidential reports, including but not limited to the reports of physicians, including psychiatrists; or, when the members of the child protection team desire, act as an advisory body concerning the details of treatment or evaluation programs.
Id. at
D. Ms. Peck‘s actions leading to this lawsuit
In January of 2019 Ms. Peck represented the mother of a three-year-old girl in a dependency and neglect case in Denver Juvenile Court. Id. at ¶ 33. In the course of that representation Ms. Peck made statements to the Denver weekly newspaper, Westword. She opined that Denver Human Services brought the case against her client because she supported her ex-husband, John Affourtit, who was also the child‘s father. Id. at ¶ 34. Mr. Affourtit was accused of abusing and murdering another child, the three-year-old son of his then-girlfriend, while Ms. Peck‘s client‘s daughter was also in his care. Ms. Peck provided Westword with a portion of an e-mail from a caseworker supervisor detailing some of Denver Human Services’ concerns. Ms. Peck also provided Westword with the date, time, and courthouse location of an upcoming hearing in the case. Id.
Specifically, the Westword quoted Ms. Peck as saying, “[i]t‘s stunning to me that DHS would file a case against somebody without a single shred of evidence, based on one family member standing up for another family member in advance of trial when the accused is still in jail.” ECF No. 24-2 at 3. It also quoted her stating “[i]t‘s hard to imagine that is somehow endangerment or failing to protect a child. I‘ve never seen anything like this, ever.” Id. The article said Peck noted that Denver Human Services (“DHS“) “targeted” her client. She said they “threatened” a dependency and neglect proceeding and defined those proceedings. Id. at 5. Westword also wrote that Ms. Peck believed DHS never witnessed a phone call alleged to be the basis for their investigation into her client. Id. Finally, the article quoted her as saying: “[m]y concern is the broader question of what happens to people who stand up for family members,” and “[i]s DHS really going to be in the business of confiscating children before the accused goes on trial when that child is otherwise in no immediate physical danger?” Id. at 7.
The Court has become aware that Counsel for Respondent Mother . . . may have disclosed confidential identifying information to a non-party in violation of
§ 19-1-307(1)(a), C.R.S. Disclosure of identifying information in a dependency or neglect proceeding is a criminal offense pursuant to§ 19-1-307(1)(b), C.R.S. . . . This Order will serve as notice to all parties that any identifying information pertaining to this dependency and neglect proceeding shall be kept confidential in accordance with§ 19-1-307(1)(a) and§ 19-1-303 .
ECF No. 24-3. The juvenile court took no further action against Ms. Peck for her violation of
Ms. Peck has not been threatened with prosecution of a criminal offense under
A search of District Attorney McCann‘s office records, which go back to 1966, revealed that no person has ever been investigated or prosecuted for an alleged violation under
District Attorney McCann‘s office has no written or unwritten policies, customs, or practices concerning the enforcement or non-enforcement of the Children‘s Code
Ms. Peck desires in the future to make public statements, including through the press, calling out public officials and public employees when they have issued materially false or improper reports about her clients. ECF No. 55 at ¶ 11.1 She believes that
Ms. Peck has never reported a concern, complaint, or grievance regarding Colorado or Denver‘s child welfare system, or specifically the conduct of any caseworker, to the agencies and entities mentioned in
II. PROCEDURAL BACKGROUND
Plaintiff Ms. Peck filed this action on December 9, 2019 against various Colorado government entities and government officials in their official capacities. ECF No. 1. She submitted an amended complaint on January 29, 2020. ECF No. 24. In it she seeks a declaration that
criminal provisions. Id. By the time the parties filed their motions for summary judgment, the two defendants remaining were Ms. Michelle Barnes and Ms. Beth McCann, both sued in their official capacities.
On July 6, 2020 the parties filed a joint stipulation of facts for the Court to use in ruling on summary judgment. ECF No. 60. Plaintiff Ms. Peck, defendant Ms. Barnes, and defendant Ms. McCann each filed a motion for summary judgment on August 19, 2020. ECF Nos. 65, 66, and 67. Ms. McCann responded on September 22, 2020, while Ms. Peck and Ms. Barnes responded the next day. ECF Nos. 68, 69, and 70. All parties filed their replies on October 14, 2020. ECF Nos. 71, 72, and 73. The three parties agreed that all issues in the case should be resolved by the Court on summary judgment. ECF No. 75. As a result, the Court vacated the jury trial and has taken the parties’ respective motions and stipulated facts under advisement.
III. STANDARD OF REVIEW
A court may grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Where, as here, the parties file cross-motions for summary judgment, each motion is considered separately and “the denial of one does not require the grant of another.” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). The court is entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts. Nat‘l Union Fire Ins. Co. of Pittsburgh, PA v. Fed. Ins. Co., 213 F. Supp. 3d 1333, 1339 (D. Colo. 2016), aff‘d, 734 F. App‘x 586 (10th Cir. 2018) (unpublished). “[T]he reasonable inferences drawn from affidavits, attached exhibits, and depositions are rendered in the light most favorable to the non-prevailing party.” Id. (citing Jacklovich v. Simmons, 392 F.3d 420, 425 (10th Cir. 2004)).
IV. ANALYSIS
Ms. Peck raises three challenges to
A. Scope of § 19-1-307 and its application to Ms. Peck
1. Scope of § 19-1-307
The parties dispute the scope of what information is prohibited from disclosure by
Plaintiff reads the language of
The Colorado legislature first enacted a prohibition on disclosing confidential information related to child abuse and neglect reports in 1975. It did so as part of the then-named “Child Protection Act of 1975.” It read
It is unlawful for any person or agency to solicit, encourage disclosure of, or disclose the contents of any record or report made under this article. Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or imprisoned in the county jail for not
more than three months, or by both such fine and imprisonment.
The Colorado Court of Appeals interpreted this language in Gillies v. Schmidt. In that case, plaintiff representatives of the Denver Post sought an injunction to prevent a child protection team from holding meetings at which the press and public were excluded. Gillies v. Schmidt, 556 P.2d 82, 84 (Colo. App. 1976). The Court of Appeals sought to harmonize
The trial court drew a distinction between information which could lead to identification of the child, parents or informant, whether or not found in the reports, and information in the reports which is “nonconfidential.” We affirm the court‘s order prohibiting disclosure of any such “identifying information.”
However, it was erroneous to distinguish between confidential and nonconfidential material contained within the reports and records. The confidentiality provision of the Child Protection Act covers the Entire contents of a child abuse report and the records related thereto.
Id. at 86 (emphasis added).
About eight months later, the legislature changed the language of
In 1987 former
The Court concludes that
Reading the various criminal provisions of
Gillies and another Colorado case further bolster this reading. Gillies makes clear that the old version of the statute,
In sum, I conclude that
2. Application of § 19-1-307 to Ms. Peck‘s prior and future statements
The next preliminary question is whether the speech Ms. Peck engaged in and wishes to engage in is actually prohibited by
In their joint stipulated facts, the parties narrow their consideration of Ms. Peck‘s past statements as compared to her complaint. They focus on her interview with Westword in January 2019 regarding John Affourtit, who was accused of murdering his girlfriend‘s son, and his ex-wife, whom Ms. Peck represented. Defendant McCann asserts that Ms. Peck “named the family members to the newspaper.” ECF Nos. 65 at 6; 68 at 7. Identifying family members by name would place Ms. Peck within the confines of speech that she herself admits is legitimately prohibited from disclosure. Ms. Peck insists, however, that the article does not show that she disclosed identifying information. ECF No. 67 at 14. Instead, she points to her statements and disclosure of certain communications suggesting, both implicitly and explicitly, that Ms. Peck was critical of DHS’ handling of her client‘s situation.
I agree with Ms. Peck here. Nowhere in the article does Ms. Peck give the name or address of her client or her client‘s children. ECF No. 24-2. Neither defendant points to any information in the article that could identify the client, her children, or the informant. Ms. Peck did nonetheless disclose nonidentifying information that is covered by
falls within the ambit of disclosures prohibited by
As for her future speech, Ms. Peck says that she desires to make public statements, including through the press, that call out public officials and employees who issue materially false or improper reports about her clients. ECF No. 55 at ¶11. According to her, “[i]nformation relating to an inadequate agency response is meaningless without inclusion of a description of the facts calling for that response including any “red flags” that may have been overlooked or ignored.” ECF No. 73 at 8. In other words, without referencing specifics from child abuse or neglect reports, her public criticisms of officials will be less credible.
Whether
B. Standing
As in many free speech challenges to state action, the parties here debate standing vociferously. See ECF Nos. 65 at 6; 66 at 6; 69 at 3. A court may dismiss a case for lack of subject matter jurisdiction under
A classic case or controversy under Article III is a challenge to a statute that imposes criminal penalties for activity protected under the Constitution. Diamond v. Charles, 476 U.S. 54, 64 (1986). When contesting the constitutionality of a criminal statute, “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.“” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). “But ‘persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.“” Id. (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)). Put differently, mere “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13–14 (1972). When plaintiffs “do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” they do not allege a dispute susceptible to resolution by a federal court. Id.
These articulations are often intertwined. For example, in Walker the Tenth Circuit “recognized that a chilling effect on the exercise of a plaintiff‘s First Amendment rights may amount to a judicially cognizable injury in fact, as long as it ‘arise[s] from an objectively justified fear of real consequences.“” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)). A plaintiff suing for prospective relief “must demonstrate that expressive activities will be inhibited by ‘an objectively justified fear of real consequences, which can be satisfied by showing a credible threat of prosecution or other consequences following from the statute‘s enforcement.“” Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007) (quoting Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006)). Furthermore, while a past adverse effect supports standing, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O‘Shea v. Littleton, 414 U.S. 488, 495-96 (1974).
Here, Ms. Peck was not prosecuted, threatened with prosecution, or even contacted by anyone in law enforcement or the District Attorney‘s office about her speech that violated
Line-drawing in standing cases is rarely easy, but where the plaintiff‘s alleged injury is a chilling effect on the freedom of speech, the standing inquiry is particularly delicate. By definition, the injury is inchoate: because speech is chilled, it has not yet occurred and might never occur, yet the government may have taken no formal enforcement action. We cannot ignore such harms just because there has been no need for the iron fist to slip its velvet glove. On the other hand, in speech cases as in others, courts must not intervene in the processes of government in the absence of a sufficiently “concrete and particularized” injury.
We hold that plaintiffs in a suit for prospective relief based on a “chilling effect” on speech can satisfy the requirement that their claim of injury be “concrete and particularized” by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced.
Plaintiff passes this three-part “chilling effect” test. The Westword article constitutes
As defendants are quick to point out, however, Walker differs from this case because it involved a state constitutional provision about the number of votes needed to pass a citizen initiative, not a criminal statute or prosecution. Walker, 450 F.3d at 1088. The Walker court recognized that numerous cases arising from threat of criminal prosecution posed a serious question as to whether the law would be enforced against the plaintiff. Id. at 1090 (citing to Winsness, 433 F.3d at 734; D.L.S., 374 F.3d at 974–75; Faustin v. City & County of Denver, 268 F.3d 942, 948 (10th Cir. 2001); Phelps v. Hamilton, 122 F.3d 1309, 1327 (10th Cir. 1997)).
Yet, even focusing on credible threat of prosecution, plaintiff has alleged facts that pass standing muster. Defendants make much of Ms. Peck‘s not having been prosecuted, or even investigated, for her speech in the Westword article. But “the Supreme Court has often found a case or controversy between a plaintiff challenging the constitutionality of a statute and an enforcement official who has made no attempt to prosecute the plaintiff under the law at issue.” Wilson v. Stocker, 819 F.2d 943, 946–47 (10th Cir. 1987). Per my analysis above, the speech in which plaintiff seeks to engage is prohibited by the statute. After her statements to Westword the judge in her client‘s case issued an order effectively warning her against violating the statute. While judicial officers have no authority to prosecute, such an order certainly constitutes “other consequences following from the statute‘s enforcement,” as it subjected Ms. Peck to scrutiny in her court proceeding. Winsness, 433 F.3d at 732. All attorneys know that to ignore a direct order from a judge is unwise. Ms. Peck could reasonably assume that continuing to violate
More importantly, plaintiff has shown a credible threat of prosecution because the state of Colorado has assured the federal government on an annual basis that it will enforce its child welfare laws—including
Nor would such a disavowal be particularly convincing in this case. Defendants have insisted that the criminal penalties of
Defendants urge this Court to find a lack of credible prosecution based on cases like Winsness and Aptive. These comparisons do not convince the Court. In Winsness, two individuals, Winsness and Larsen, brought suit alleging a Utah flag-desecration statute was unconstitutional. A district attorney sought to dismiss the case on lack of standing because he himself doubted the constitutionality of the statute, and he stated in an affidavit that he had never filed and had no intention of filing criminal charges against the plaintiff for his flag desecration actions. Winsness, 433 F.3d at 731. The Tenth Circuit leaned heavily on the prosecutor‘s express, sworn disavowal from prosecution in finding that there was no threat of credible prosecution for either plaintiff, and thus that both plaintiffs lacked standing to sue. Id. at 732–33.
With respect to Mr. Larsen the court noted that he had not been prosecuted, and that “[o]n the contrary, he has received assurances from the District Attorney that the flag-abuse statute will not be enforced against him or anyone else.” Id. at 733. No such assurances have been provided to Ms. Peck here. In fact, defendants have insisted that ability to prosecute under
With respect to Aptive, that decision actually supports plaintiff‘s position here. There the Tenth Circuit held that a pest control company had standing to sue the City of Castle Rock for a city ordinance that placed a 7:00pm to 9:00am curfew on commercial door-to-door solicitation. Aptive Envtl., LLC v. Town of Castle Rock, Colo., 959 F.3d 961, 975–77 (10th Cir. 2020). The court applied the three-part test from Walker, finding that (1) Aptive had in the past engaged in the type of speech affected by the challenged ordinance because it had solicited in Castle Rock after 7:00pm; (2) Aptive demonstrated a present desire to solicit after 7:00pm because that was when their sales did best; and (3) Aptive directed its sales reps to not work until dusk because of the threat of sanctions, and it ultimately stopped soliciting in Castle Rock at all. Id. Defendant Barnes attempts to distinguish Aptive by pointing to plaintiff‘s non-prosecution and a lack of evidence that
Defendant Barnes also tries to distinguish Aptive by asserting that Ms. Peck‘s desire to speak in violation of
I briefly address the overbreadth doctrine for standing because the parties dispute whether it applies. “Overbreadth is an exception to the prudential standing doctrine requiring plaintiffs to show that their own First Amendment rights (as opposed to the rights of third parties) have been violated . . . .” Winsness, 433 F.3d at 734. “A court should address an overbreadth challenge to a law only when the law may have a chilling effect on the free speech rights of parties not before the court.” West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir. 2000). Because the Court has found that plaintiff sufficiently established the elements of standing for
C. First Amendment free speech
Plaintiff raises two separate arguments in her first claim for relief. She first challenges
All of the parties address both strict scrutiny and overbreadth in their briefs. But none of them is entirely clear on how these two doctrines fit together in analysis of First Amendment free speech issues. Some briefs seem to merge the two analyses, addressing overbreadth under narrow tailoring, while others address them separately. ECF Nos. 65 at 16; 66 at 13–20; 67 at 18-23. I do not blame the parties for this somewhat jumbled outcome—the Supreme Court itself has not provided clear guidance on when and how scrutiny tests versus overbreadth should apply. E.g., United States v. Stevens, 559 U.S. 460, 474–80 (2010) (affirming on overbreadth grounds a Third Circuit opinion which had analyzed a statute only under strict scrutiny); Hill v. Colorado, 530 U.S. 703, 725–32 (2000) (analyzing statute separately under intermediate scrutiny and then overbreadth); Reno v. Am. C.L. Union, 521 U.S. 844, 874–79 (1997) (blending overbreadth language into strict scrutiny analysis of statute that sought to protect minors from harmful material online).3
Given this confusion, I heed the highest Court‘s caution that the overbreadth doctrine is “not casually employed.” Los Angeles Police Dep‘t v. United Reporting Pub. Corp., 528 U.S. 32, 39 (1999). Plaintiff also pleads her as-applied challenge before her facial one. I therefore address plaintiff‘s challenge under strict scrutiny first, and I arrive at overbreadth as a last resort.
1. Whether strict scrutiny applies
The First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, unequivocally states that “Congress shall make no law . . . abridging the freedom of speech.”
Whenever a plaintiff challenges a speech restriction on First Amendment grounds, the court must determine at the outset whether the restriction is “content-based” or “content-neutral.” A law regulating speech is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). When deciding whether a challenged law or ordinance is content-based, a court must “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. A content-based restriction is presumptively unconstitutional and subject to strict scrutiny. Id. Such a law must withstand strict scrutiny “regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the idea contained’ in the regulated speech.” Id. at 165 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). The test for whether a content-based law passes strict scrutiny is if it is “necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987). The government bears the burden of showing that the law is the “least restrictive means” of achieving its compelling interest. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).
The provision here is content-based. The speech
Defendant Barnes concedes that strict scrutiny applies. ECF No. 66 at 12. Defendant McCann, on the other hand,
The Garcetti/Pickering test exists because our judicial system recognizes the unique tension between free speech by public employees and the need for public employers to operate efficiently. See Butler, 920 F.3d at 660–61. To apply it here would collapse the speech rights of public employees into those of private citizens. I will not do so. Strict scrutiny applies here because
2. Compelling state interest
Plaintiff does not dispute that there is a compelling state interest behind the
3. Narrow tailoring
Having established a compelling state interest behind
The Court concludes that
A closer look at the distinction between identifying and nonidentifying information reveals how much speech
Defendants insist that
The government‘s own rules for child protection teams prove the viability of limiting non-disclosure to identifying information. After the Gillies decision in 1976, the Colorado legislature changed the scope of disclosure for child protection teams. The current statute provides that child protection teams “shall publicly review the responses of public and private agencies to each reported incident . . ., publicly state whether the responses were timely, adequate, and in compliance with the provisions of this part 3, and publicly report nonidentifying information relating to any inadequate responses . . . .”
The sole response defendants have to this persuasive child protection teams argument is from Ms. Barnes. She contends that “there is no reason the prohibition set forth in
Finally, defendants urge me to conclude the statute is narrowly tailored because it does not completely restrict speech. They point to the “good cause” exception that permits plaintiff to seek permission from a court to disclose otherwise confidential information. They also note the myriad avenues through which plaintiff and others may report their concerns about government employees in child welfare. ECF Nos. 65 at 20; 68 at 20–21; 70 at 15. See also
As for the various government bodies to which plaintiff could voice her concerns, the Court does not see how these bear on constitutionality. Plaintiff rightly points out that alternative channels for speech are relevant to intermediate scrutiny, not strict scrutiny. Reno, 521 U.S. at 879 (rejecting argument that statute provided a “reasonable opportunity” to engage in restricted speech as inapplicable to strict scrutiny analysis); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that the government must “leave open ample alternative channels for communication” in time, place, or manner regulations). The fact that plaintiff may air grievances to government actors does not explain why her public speech on nonidentifying child abuse report information need be so restricted. This argument is a red herring and does not support defendants’ position.
Content-based laws, like the one at issue here, are “presumptively invalid.” Playboy Entm‘t Grp., 529 U.S. at 817. Defendants bear the burden of explaining why
D. Overbreadth
Plaintiff also challenges
E. Vagueness
Ms. Peck‘s final attack against the Children‘s Code‘s confidentiality provision is on vagueness grounds. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Restrictions on speech must not leave “uncertainty among speakers” about “just what they mean.” Reno, 521 U.S. at 871. A court may find a statute impermissibly vague for two possible, independent reasons. “First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732.
Under the first reason, a vagueness challenge can be sustained where a statute‘s restraining of legitimate speech is “both real and substantial,” and where the statute is not “readily subject to a narrowing construction by the state courts . . . .” Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60–61 (1976). However, “speculation and ‘hypertechnical theories as to what the statute covers’ cannot create vagueness, especially when the statute is ‘surely valid
Ms. Peck advances three arguments for why
1. Distinction between § 19-1-307‘s criminal penalties
Subsection (1)(c) provides that “[a]ny person who violates any provision of this subsection (1) is guilty of a class 2 petty offense . . . .” Subsection (4) provides that “[a]ny person who improperly releases or who willfully permits or encourages the release of [information in reports or records] commits a class 1 misdemeanor . . . .”
Defendant McCann argues that the distinction between the two criminal provisions lies in their different culpability requirements.
I agree with defendants. These are without doubt poorly written criminal subsections. But the language across the two subsections differs sufficiently for us to glean the legislature‘s meaning. One encompasses virtually any violation of the non-disclosure rules, mentions no mental culpability, and imposes a lower penalty. The other mentions mental culpability and imposes a higher penalty. A reasonable person reading the statute would understand that if she disclosed inadvertently or without knowing, she would be subject to (1)(c), whereas if she violated the statute on purpose, she would be subject to (4) as well.
Plaintiff rejects the scienter argument, focusing heavily on the words “improperly releases” in (4). She argues that the use of the “willful” scienter before the abetting provision, without a similar scienter before the “improperly releases” provision, suggests that the latter provision has no mens rea—i.e. it is a strict liability offense just like (1)(c). To accept plaintiff‘s argument requires rejecting the most logical reading of the statute. It makes more sense to presume the same scienter to all of subsection
Even if plaintiff‘s reading of the statute were logical, it would not prevail. The Tenth Circuit recently reiterated that, “as between multiple reasonable interpretations of a statute, we will always prefer one that sustains constitutionality to one that does not under the presumption of constitutional validity. United States v. Brune, 767 F.3d 1009, 1023 (10th Cir. 2014) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937). “In fact, ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.“” Id. at 1023-24 (quoting Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012)). Here, the criminal subsections of
2. Meaning of “other identifying information”
The confidentiality provision prohibits disclosure of “the name and address of any child, family, or informant or any other identifying information contained in such reports.”
Plaintiff‘s attempt to distinguish between indirectly and directly identifying information is unavailing. The Colorado case in question has no bearing on this issue. In the context of a request for employment records, that court interpreted “personnel files” to include “home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship.” Daniels v. City of Commerce City, Custodian of Records, 988 P.2d 648, 651 (Colo. App. 1999). It did not interpret the term “identifying information,” nor did it distinguish between directly or indirectly identifying information. Id. Nor is defendants’ position that the term refers only to “indirectly” identifying information. Defendant Barnes argues defines the term as “facts and data, other than names and addresses, that may establish a person‘s identity.” ECF No. 70 at 23.
The Court agrees with Ms. Barnes’ definition. The interpretive doctrine noscitur a sociis (“a word is known by the company it keeps“) tells us that “we are required to construe a phrase within a statute with reference to its accompanying words” as well as the statute‘s other provisions. Brune, 767 F.3d at 1022–23. The enumerated terms in
3. Parameters of § 19-1-307(1)(b) exception
The good cause exception regarding a child‘s death comprises the following language:
Such disclosure shall not be prohibited when there is a death of a suspected victim of child abuse or neglect and the death becomes a matter of public record or the alleged juvenile offender is or was a victim of abuse or neglect or the suspected or alleged perpetrator becomes the subject of an arrest by a law enforcement agency or the subject of the filing of a formal charge by a law enforcement agency.
Plaintiff argues that this subsection renders
I disagree with plaintiff‘s reading. Her argument creates ambiguity where there is none. The non-disclosure exception for the death of a child is clear: that child‘s name and address, the names and addresses of family members, including any surviving siblings, and any other identifying information about the child and their family, are no longer confidential when the conditions of the exception are triggered. Plaintiff poses the hypothetical of non-related families or children listed in the report. Is that information also disclosable? The provision answers “yes” if that information identifies the deceased child or his or her family; otherwise, “no.”
Specific examples help clarify why this is the case. In situations where there are other reports of child abuse that do not mention the deceased child, but instead identify only that child‘s family members, that information would still be disclosable under the exception. The reason for that is straightforward—that information identifies one or more members of the deceased child‘s family, as contemplated by the statute. A different situation arises where a non-family member, such as a friend or classmate, is mentioned in a report regarding a deceased child. Information about those individuals, e.g. in reports alleging their own abuse or neglect, is not disclosable under the exception, except in the unlikely scenario where that information actually identifies the deceased child or family members.
ORDER
The Court holds that subsections of
DATED this 11th day of March, 2021.
BY THE COURT:
R. Brooke Jackson
United States District Judge