By Marianne Goodland | Denver Gazette
A Denver district court judge has issued a preliminary injunction to prevent a division within a state agency from complying with a subpoena issued by U.S. Immigration and Customs Enforcement.
The injunction is a step that will now lead to a trial on the merits of a lawsuit filed by a state division chief.
Notably, the judge’s injunction only applies to that state division and the court appears to allow the governor to comply with the ICE subpoena.
In his order, Judge A. Bruce Jones said the subpoena would require state employees to violate state laws signed in 2021 and 2025 by disclosing personally identifiable information to federal immigration officials.
The ICE subpoena was issued administratively, not by a court or judge, and that was a factor in Jones’ decision. The subpoena sought information on 35 individuals who are custodians of unaccompanied minor children who are illegally staying in the U.S. Homeland Security Investigations, a division of ICE, said it wants email, home addresses and phone numbers for the 35 individuals to ensure the children are not being subjected to human trafficking or other forms of exploitation.
Jones made the order in the lawsuit filed by Scott Moss, director of the the Colorado Department of Labor and Employment Division of Labor Standards and Statistics.
Moss’ team has argued that subpoena failed to actually state that its purpose is criminal investigation, as indicated by not checking a box specifically included for either child exploitation or child pornography.
Under Jones’ order, Moss and his employees at the division will not be required to comply with the subpoena.
Moss had objected based on state laws enacted in 2021 and 2024.
Jones declared the injunction because he said the requirement to provide the information is illegal under the statutes. But his order does not apply to any other divisions of the labor agency. Two other divisions are believed to be under the subpoena, and the opinions of the chiefs of those divisions is not known nor disclosed in court.
The judge also said that, if Gov. Jared Polis decided to pursue the data sought by ICE, “I will not enjoin the governor from responding to the subpoena if that’s what he wants to do.”
He cautioned the state that it should not go forward without notifying the 35 people whose information is being sought by ICE.
In a statement Wednesday evening, a spokesperson for the governor said, “We are reviewing the court’s preliminary ruling to determine next steps in this matter. We will abide by the court’s decision as we have always said we would.”
“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 HSI will provide subpoenas for state information consistent with this ruling,” the spokesperson added.
The governor wants to comply with the subpoena, according to testimony during the three-day hearing this week, out of concern he would be accused of not helping ICE if children were at risk.
Moss was joined in the lawsuit by Colorado WINS, the state employee union, and Towards Justice, a nonprofit law firm that intends to advocate for the 35 people whose information ICE is seeking.
The plaintiffs claimed they had standing to bring the lawsuit because of the risk of fines, as outlined in state law, that could reach $50,000 per occurrence.
Jones ruled that Moss had standing, as did WINS for the state employees in the state division who could be ordered to violate the law. The judge is skeptical about granting standing to Moss or Towards Justice in defense of the 35 individuals, noting there is no evidence presented on their behalf or that it is even claimed the 35 individuals are illegally staying in the U.S.
Attorney Trey Rogers, representing the governor, argued that Moss had not suffered any injury and that he could turn over the information to his boss, CDLE Executive Director Joe Barela. He also noted testimony from Barela that Moss’ job is not in jeopardy.
Jones disagreed, saying Moss would be subject to the penalty if he complied, calling it an “injury in fact,” which means harm could be imminent.
As to the subpoena itself, Jones said if it had come to him, “it would be narrowed to the point of almost non-existence because it’s so overbroad.”
Following the ruling, Moss told reporters that subpoenas for immigration enforcement are illegal for voluntary information and elsewhere: “If compliance with a subpoena is illegal, none of the many ICE subpoenas like this should not complied with. The ball is in the state’s court.”
“Jones recognized the harm that would have occurred if the governor’s actions were allowed to eviscerate the statute he had just signed,” added Diane Byrne, president of Colorado WINS.
Sen. Julie Gonzales, D-Denver, the co-sponsor of Senate Bill 25-276, also lauded Jones’ order. She said it is clear the administrative subpoena does not fall under section of statute that Polis tried to claim.
“Frankly, if anyone wants to try and argue that ICE has the interests of children at the center of their work, I think Gov. Polis has a pedestrian bridge to sell you,” she said.
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