Denver judge says ICE subpoena doesn’t comply with state law, but doesn’t prohibit Polis from responding

A Denver judge said Wednesday that state law doesn’t allow officials to comply with a federal immigration subpoena that Gov. Jared Polis had decided to fulfill, and he prohibited the governor from directing a senior state employee and his staff from turning over personal information to authorities.

But District Judge A. Bruce Jones said he wouldn’t block Polis or other state officials from otherwise responding to the subpoena. He said, though, that he would find it “very problematic” if Polis and the state fulfilled the request, which seeks employment and health records on 35 people, without first notifying those individuals that their information was about to be turned over to federal Immigration and Customs Enforcement agents.

The decision is a temporary order that will hold while the rest of senior state official Scott Moss’ lawsuit against Polis plays out. It effectively means that Moss, a director in the state Department of Labor and Employment, and his staff can’t be ordered to comply with a subpoena that seeks records on the sponsors of unaccompanied and undocumented children.

Moss sued Polis this month, alleging that the governor personally decided to comply with the subpoena despite Moss’ contention that doing so would enable the deportation of children and would violate a state law that generally prohibits sharing information with ICE.

Jones signaled throughout the hearing, which stretched over three days, that he didn’t buy Polis’ argument that the subpoena was related to a criminal investigation, which would trigger an exemption in state law allowing the information to be shared with ICE. Jones reaffirmed that position Wednesday, saying that complying with the subpoena “would be a violation of the statute.”

Still, Jones said he wouldn’t prohibit Polis or other state employees from going around Moss and his staff, and he ruled that two labor unions and a nonprofit law firm who joined the case didn’t adequately argue for a more far-reaching enjoinder.

“I am relatively certain that I could find law that says if somebody wants to violate the law, somebody else can’t get an injunction to stop them from doing it,” Jones said of Polis and Moss.

In a statement, Polis spokeswoman Shelby Wieman said the governor’s office “will abide by the court’s decision as we have always said we would.” She did not immediately respond to a follow-up question asking if that meant the governor would not comply with the subpoena at all or if he would only follow the court’s direction not to order Moss to do so.

Laura Wolf, Moss’ attorney, also did not immediately respond to a request for comment after the ruling.

Polis’ office had contended that the April subpoena was part of a “specific” investigation into child abuse and exploitation and that the governor was eager to assist in preventing trafficking or harm to kids.

But the subpoena does not describe a specific criminal investigation, and Polis’ private attorneys did not provide any evidence that such an investigation exists, other than by pointing to the subpoena itself. His attorneys said that Polis effectively trusted ICE at its word that it was interested only in child welfare.