Peck v. McCann

43 F.4th 1116

Jessica PECK, Plaintiff - Appellee,

v.Beth MCCANN, in her official capacity as the District Attorney of the Second Judicial District, State of Colorado, Defendant - Appellant,andMichelle Barnes, in her official capacity as Executive Director of the Colorado Department of Human Services, Defendant.

Office of the Child Representative; Denver Human Services; Larimer County Human Services, Amici Curiae.

Jessica Peck, Plaintiff - Appellee,

v.Michelle Barnes, in her official capacity as Executive Director of the Colorado Department of Human Services, Defendant - Appellant,andBeth McCann, in her official capacity as the District Attorney of the Second Judicial District, State of Colorado, Defendant.

Office of the Child Representative; Denver Human Services; Larimer County Human Services, Amici Curiae.

No. 21-1125

No. 21-1127

United States Court of Appeals, Tenth Circuit.

FILED August 9, 2022

Bianca E. Miyata, Assistant Solicitor General, Denver, Colorado, and Kendra K. Smith, Hall & Evans LLC, Denver, Colorado (Philip J. Weiser, Attorney General; Anita M. Schutte, Second Assistant Attorney General; Aaron J. Pratt and Leeah B. Lechuga, Assistant Attorneys General, State of Colorado, Department of Law, Denver, Colorado; and Andrew D. Ringel, Hall & Evans LLC, Denver, Colorado, with them on the briefs), for Defendants-Appellants.

Thomas B. Kelley (David A. Lane, with him on the briefs), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellee.

Anna Ulrich, Crestone, Colorado filed an Amicus Curiae brief for the Office of the Child Representative, on behalf of Appellants.

Amy J. Packer and Robert A. Wolf, Assistant City Attorneys, Denver, Colorado, filed an Amicus Curiae brief for Denver Human Services, in support of Appellants.

David P. Ayraud, Fort Collins, Colorado, filed an Amicus Curiae brief for Larimer County, on behalf of Appellants.

Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellee Jessica Peck is an attorney who represents parents and other family members in child abuse cases in Colorado juvenile courts. She brought this suit against Defendant-Appellants, Colorado Executive Director of Health Services Michelle Barnes and Second Judicial District Attorney Beth McCann, to challenge the constitutionality of § 19-1-307 ("Section 307") of the Colorado Children's Code Records and Information Act ("Children's Code"). Section 307 requires that child abuse records and reports be kept confidential, and has two separate subsections—Section 307(1) and Section 307(4)—that impose penalties upon those who improperly disclose information from child abuse reports.

Ms. Peck alleges that Section 307 violates her First Amendment rights by restricting her disclosures and thereby chilling her speech on these matters. The district court agreed and struck down both of Section 307's penalty provisions. But for the reasons explained herein, we think that Section 307(1) and Section 307(4) have different scopes due to their distinct language and legislative histories. As a result, we find that Ms. Peck may challenge Section 307(4)’s penalty as unconstitutional, but has not properly challenged Section 307(1). We thus REVERSE the district court's order insofar as it invalidated Section 307(1).

Proceeding with Ms. Peck's challenge to Section 307(4), we find that the Article III requirements for our subject matter jurisdiction are met. Because the statute undisputedly imposes a burden on speech, we apply strict scrutiny and conclude that this provision is not narrowly tailored to the state's compelling interest. Accordingly, we hold that Section 307(4) is unconstitutional and AFFIRM the district court's order to the extent that it struck down that provision. In light of these dual conclusions, we also REMAND on the sole question of whether Section 307(4) is severable from the rest of the statute.

BACKGROUND

Colorado's child protection system is governed by the Children's Code, which was passed in 1975 to "balance the best interests of children and the privacy interests of children and their families with the need to share information among service agencies and schools and the need to protect the safety of schools and the public at large." Colo. Rev. Stat. § 19-1-302. At issue in this case is Section 307 of the Children's Code, which 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." Colo. Rev. Stat. § 19-1-307(1)(a). This confidentiality requirement is enforced by two distinct penalties. First is Section 307(1)(c), which states:

(c) Any person who violates any provision of this subsection (1) is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.

Colo. Rev. Stat. § 19-1-307(1) (2021). The second penalty is codified at Section 307(4), and reads:

(4) 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 entitled to access 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.

Colo. Rev. Stat. § 19-1-307(4) (2021) (emphasis added).¹ The statute also lists a number of individuals and entities that may lawfully access the otherwise-confidential reports. Colo. Rev. Stat. § 19-1-307(b).

One function of Section 307 is to fulfill Colorado's obligations under the Child Abuse Prevention and Treatment Act ("CAPTA"), which conditions federal funding for state child protection systems on the state's use of "methods to preserve the confidentiality of all records in order to protect the rights of the child and the child's parents or guardians, including requirements ensuring that reports and records ... shall only be made available to [specified persons, entities, and agencies]." 42 U.S.C. § 5106a(b)(2)(B)(viii). Each year, the Colorado Department of Human Services certifies that Section 307's confidentiality requirement is being enforced in order to ensure that the state receives CAPTA funding from the federal government.

Turning from the statutory background to the facts of this case,² Ms. Peck is a private attorney who represents family members in investigations of suspected child abuse or neglect in Colorado. In January 2019, Ms. Peck represented the mother of a three-year-old girl in a dependency and neglect case in Denver Juvenile Court. While the case was ongoing, Ms. Peck made statements to the Denver weekly newspaper Westword suggesting that Denver Human Services ("DHS") filed the case against her client "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." App'x Vol. I at 55. Ms. Peck also provided Westword with an excerpt of a caseworker supervisor's email detailing the concerns DHS had about her client. Ms. Peck further told Westword the date, time, and location of an upcoming hearing in the case.

After the Westword article was published, the Juvenile Court Magistrate presiding over Ms. Peck's case issued an order stating "that Counsel for Respondent Mother ... may have disclosed information to a non-party in violation of § 19-1-307(1)(a)," and emphasizing 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." Id. at 231. The court took no further action against Ms. Peck, nor was she contacted by any law enforcement authority. In fact, records dating back to 1966 indicate that Denver's District Attorney has never prosecuted anyone under Section 307, and records dating back to 2010 similarly show zero Section 307 prosecutions by the Denver City Attorney. Defendant McCann disclaims any policy, custom, or practices of prosecuting violations of Section 307, but Defendants have expressly chosen not to disavow an intent to prosecute Ms. Peck or anyone else under Section 307.

Ms. Peck filed this action in the United States District Court for the District of Colorado on December 9, 2019, and an amended complaint on January 29, 2020, seeking a court order declaring that Section 307 is unconstitutional and enjoining its enforcement. She initially named several state government defendants, but the district court dismissed all except Ms. Barnes and Ms. McCann in their official capacities. As Executive Director of the Colorado Department of Human Service, Ms. Barnes "supervises and provides policy direction for Colorado's child welfare system," which provides services such as child protection, risk assessment, and case management. App'x Vol. I at 222. As District Attorney for Colorado's Second Judicial District, Ms. McCann is in charge of enforcing Colorado criminal laws—including the offenses under Section 307(1) and Section 307(4)—within the City and County of Denver.

In July 2020, the parties filed a joint stipulation of facts for the district court to rely on for the purposes of summary judgment in July 2020. Ms. Peck also filed a sworn declaration stating that she desires in the future to rely on the child abuse reports she comes across during her work to call out misconduct by government officials and government employees to the public. She stated her belief that Section 307 unconstitutionally prohibits such speech, and that she would risk prosecution under the statute by engaging in her desired speech.

Shortly thereafter, Ms. Peck and each Defendant filed cross-motions for summary judgment. The district court granted Ms. Peck's motion for summary judgment, enjoining enforcement of both Section 307(1)(c) and Section 307(4) and granting reasonable costs to Ms. Peck. Defendants now appeal that ruling.

DISCUSSION

The crux of Ms. Peck's...