Peck v. McCann.
No. 21-1125. 8/9/2022. D.Colo. Judge Ebel. Constitutionality of Colorado Children’s Code Records and Information Act—First Amendment—Standing—Ripeness—Strict Scrutiny Analysis.
August 8, 2022
Plaintiff, an attorney who represents parents and other family members in child abuse cases in Colorado juvenile courts, challenged the constitutionality of CRS § 19-1-307 (Section 307) of the Colorado Children’s Code Records and Information Act. After plaintiff made statements to the newspaper Westword suggesting that Denver Human Services filed a case without evidence and solely on the basis of a family member’s statement, the juvenile court magistrate issued an order stating that plaintiff may have disclosed information in violation of Section 307. The court took no further action against plaintiff, and she was not contacted by law enforcement. There was no evidence that the Denver district attorney or the Denver city attorney had ever prosecuted an individual for violating Section 307. However, the defendant government entities did not disavow an intent to prosecute plaintiff or anyone else under Section 307.
Section 307 generally requires that “reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports . . . be confidential.” This confidentiality provision is enforced by two penalty provisions. Section 307(1) provides that except as otherwise provided in statute, “reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports shall be confidential,” and any person who violates this provision is guilty of a class 2 petty offense. Section 307(4) provides that a “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 entitled to access such information” commits a class 1 misdemeanor.
Plaintiff filed an action in US District Court of Colorado seeking an order declaring that Section 307 is unconstitutional and enjoining its enforcement. Along with stipulated facts submitted by the parties, plaintiff filed a sworn declaration stating that although she will not disclose identifying information, she desires in the future to rely on child abuse reports to call out misconduct by government officials and employees to the public. The parties submitted cross-motions for summary judgment, and the district court agreed with plaintiff’s position and enjoined enforcement of Section 307(1)(c) and (4). Defendants appealed.
To assess whether it had subject matter jurisdiction, the Tenth Circuit first determined that plaintiff lacked standing to challenge Section 307(1)(c). The Tenth Circuit noted that the plain text of Section 307(1)(a) limits its scope to identifying information only. Further, legislative history and state court case law support a narrow reading of Section 307(1). As interpreted, this section does not prohibit and penalize the disclosure of nonidentifying information, and plaintiff lacked standing.
Second, however, the Tenth Circuit held that Section 307(4) encompasses non-identifying information. The phrase “data or information contained in the records and reports of child abuse or neglect” is unambiguously broad. This provision was added in 2003 amendments to the Children’s Code, and its language evinces an intent to be both broader and impose more severe penalties than Section 307(1).
Third, the Tenth Circuit held that plaintiff met the injury-in-fact requirement for standing. Standing requirements in the First Amendment context are more leniently applied. Here, plaintiff previously engaged in the type of speech affected, she stated a present desire to engage in the restricted speech, and there was an objectively justified fear of real consequences. As to the latter requirement, plaintiff had previously been scolded by a judge, the Colorado Department of Human Services certified to the federal government that it was enforcing Section 307 to obtain federal funding, and defendants did not disavow an intent to ever prosecute under Section 307.
Fourth, the Tenth Circuit concluded that the case was ripe. Ripeness issues focus on whether the harm asserted has matured sufficiently to warrant judicial intervention. The two central issues are the fitness of the issue for judicial resolution and hardship to the parties of withholding judicial consideration. For the reasons described in its standing analysis, the Tenth Circuit determined that there was a credible threat of prosecution, which imposed a hardship on plaintiff.
Fifth, the Tenth Circuit held that Section 307(4) failed the strict scrutiny test. The Supreme Tenth Circuit has held that facially content-based laws are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Section 307(4) is a content-based restriction on speech that targets and prohibits speech based on its content— information from child abuse reports. While the state has a compelling interest in protecting child abuse information, the Tenth Circuit concluded that Section 307(4) is not narrowly tailored in that it reaches both identifying and non-identifying information.
Finally, the Tenth Circuit ordered limited remand to allow for the district court to determine whether Section 307(4) is severable from the rest of the statute.
The Tenth Circuit affirmed in part, striking down Section 307(4) as unconstitutional; reversed in part, finding that plaintiff did not state a valid challenge to Section 307(1); and remanded the case for the district court to assess whether Section 307(4) is severable.