Judge blocks Governor Polis from ordering state official to provide information to ICE
A Denver judge Wednesday blocked the Colorado governor’s office from forcing a state employee to hand over records to federal immigration authorities on 35 sponsors of unaccompanied immigrant children in the state.
The information was sought in a U.S. Immigration and Customs Enforcement subpoena from April.
The preliminary injunction, handed down by Denver District Court Judge A. Bruce Jones, applies only to Scott Moss and staffers in the Division of Labor Standards and Statistics within the state’s labor department. Moss is the division’s director.
“I will not enjoin the governor from otherwise responding to this subpoena if that’s what he wants to do,” Jones said. “And it’s not to say that there isn’t some other workaround where somebody could ask one of his supervisees to do something and they do it. I’m not enjoining them from doing it. I’m enjoining the governor from requiring that they do it.”
The ICE subpoena seeks personal information, such as addresses, telephone numbers, emails and employment history, on 35 sponsors of immigrant children, purportedly in order to check on the children’s welfare and investigate any potential child abuse. Governor Jared Polis, a Democrat, decided to comply with the subpoena in late May after some deliberation.
That’s when Moss filed a lawsuit against Polis alleging that disclosing the data would violate a state law against data sharing with ICE unless it is for a criminal investigation or under a judge-signed subpoena. Moss’ lawyers argued in court this week that the subpoena does not fit that standard because it does not point to any specific, ongoing criminal investigation and could be an attempt from federal immigration authorities to find the names and addresses of people to put in deportation proceedings.
“It’s essentially a fishing expedition,” Moss lawyer Laura Wolf said in court on Monday.
In his testimony, Moss said that during an April 29 meeting with representatives from the Colorado Department of Labor and Employment, the attorney general’s office and the governor’s office, “nobody expressed the view that the production should be made in light” of the state law.
“We all agreed that if there were concerns about child welfare, those should be looked into by appropriate folks. But we all agreed that we had not seen any evidence of any harm to children,” Moss said. “If we had any evidence, it could be routed the appropriate way. There are state and local agencies that cover such things.”
CDLE director Joe Barela then told Moss in late May that Polis had changed his mind and wanted to produce the records requested by the subpoena.
“He said that the governor didn’t want to be accused of not helping ICE prevent any harm that might be happening to any children,” Moss said Tuesday in court. “He said that the governor … thought that the criminal exception (in the law) … gave him ‘cover.’”
Polis’ lawyers argued this week that the subpoena related to criminal matters, and that Moss was not at risk professionally if he decided not to tell his employees to produce the information. That could have meant Barela, or some other official, would make the order.
“But the statute isn’t about protecting me personally. It’s about protecting the individuals named from having their (personal identifying information) released in a potentially injurious way. It wouldn’t make me feel any better if, to save me from the trouble, other state employees would have this thrust upon them,” Moss said Tuesday.
Colorado in recent years has enacted state laws, including legislation signed in 2021 and earlier this year, that limit the sharing of data about immigrants with federal immigration enforcement authorities.
Two unions that represent state employees, Colorado WINS and AFL-CIO, are also plaintiffs in the lawsuit.
Polis spokesperson Shelby Wieman said the governor’s office is reviewing next steps.
“We will abide by the court’s decision as we have always said we would,” she wrote in an email. “Governor Polis remains committed to fully and promptly cooperating with federal criminal investigations into child trafficking and exploitation, while protecting unaccompanied children in Colorado. We hope if information is needed for criminal investigations, that going forward (Homeland Security Investigations) will provide subpoenas for state information consistent with this ruling.”
Polis has repeatedly said that he welcomes federal help to detain and deport “dangerous criminals.”
