A lawsuit filed against Gov. Jared Polis after he attempted to comply with a subpoena from federal immigration officials will continue despite the governor’s efforts to get the case dismissed, a Denver judge ruled Monday.
In his ruling, Denver District Judge A. Bruce Jones said Polis’ request to end the case was “untethered to any rule of procedure supporting the relief requested” and cited an “absence of any legal authority.”
The ruling marks another loss for the governor in the case first brought last June by Scott Moss, the former director of the Division of Labor Standards and Statistics at Colorado’s Department of Labor. Moss alleged Polis directed him to comply with a subpoena from U.S. Immigration and Customs Enforcement requesting the personal information of 35 people, but Colorado law prohibits state agencies from providing personal information to federal immigration officials unless it is related to a criminal investigation.
Polis argued that the subpoena at the center of the case is related to a human trafficking investigation by the Department of Homeland Security, an argument Jones has rejected. The subpoena is titled “Immigration Enforcement Subpoena.”
After months of defending his attempted compliance with the subpoena, Polis earlier this year reversed his position and asked the judge to permanently block the release of the information and end the case, saying ICE no longer appeared interested in the information.
But there is much that remains unresolved, according to Moss’ lawyers, including how the governor will respond in the future when ICE asks state agencies for Coloradans’ data.
In court filings, Moss’ team has criticized Polis’ recent revisions to state policy about how agencies should respond to subpoenas.
A policy issued in November by the state labor department included in court filings says the department should confer with the Attorney General’s Office about whether to comply with a subpoena. Labor Department Deputy Executive Director Cher Haavind told state lawmakers about the policy in January, saying the department should request that anyone sending a subpoena get a court order.
“The general policy of the department is not to respond to administrative subpoenas,” the policy says.
But on Feb. 12, the governor’s office issued a superseding policy for all state agencies. It now directs the person who receives a subpoena to loop in the governor’s office and label all correspondence related to the subpoena as “privileged.”
“The agency should respond to the subpoena as directed by the Governor’s Office,” the policy says.
The new policy, Moss’ lawyer says in court filings, “vests the Governor with unfettered authority on production decisions while also shielding all such deliberations from scrutiny.” Moss also argues the new policy encourages agencies to comply with ICE subpoenas.
In a statement, Polis spokesperson Eric Maruyama said the governor’s office is evaluating the order and next steps.
“Our policy is simple and it follows the law: we cooperate on criminal investigations with the federal government regardless of whether an individual is here legally or not and we do not cooperate on non-criminal matters that are only for civil immigration enforcement,” Maruyama said.
It’s unclear whether the judge will eventually determine how the state can comply with all subpoenas under the state law. The two sides – lawyers for Moss and Polis – are scheduled to meet for mediation in mid-April and Moss’ lawyers will get to depose the governor before then.
The judge’s decision comes as state lawmakers are trying to pass more reforms at the Colorado Capitol about how the state can interact with ICE.
One proposal, House Bill 1276, would expand on the law passed last year that prohibits state officials from sharing personal identifying information with federal immigration authorities unless it is being used in a criminal case. It would prohibit state and local agencies, not just individual officials, from sharing the information. State agencies would have to publish ICE subpoenas they receive, and state and local agencies that comply with subpoenas would have to alert individuals that their information has been shared with ICE.