Some of the most prominent attorneys in Colorado have combined forces to challenge a statute related to child abuse records — and the lawsuit was triggered by a gag order issued after the January publication of a Westword story about a mom who was threatened by Denver Human Services (DHS) with losing custody of her child, in part because of her belief that her ex-husband was innocent in the death of his girlfriend's three-year-old son.
Lawyer Jessica Peck, the plaintiff in the suit, is being represented by First Amendment expert Tom Kelly, who's handled groundbreaking cases for the Denver Post and other major media outlets, and David Lane, a principal in Denver-based Killmer, Lane & Newman, LLP. Defendants include the State of Colorado, Governor Jared Polis, Colorado Attorney General Phil Weiser and Denver District Attorney Beth McCann, who say they are not commenting for this story because the litigation is pending.
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As noted in the suit, Peck "has made statements to the press regarding the misconduct of officials charged with the protection of children using information derived from records and reports made secret" by section 307 of the Colorado Revised Statutes. "Specifically, she has alleged that certain officials have issued false reports concerning her clients, thereby putting such clients at legal jeopardy and at risk of losing parental custody." In making these assertions, Peck "has not disclosed, and does not intend to disclose, identifying information concerning child abuse victims or family members, but does wish to continue to disclose publicly the contents of child abuse reports and records to the limited extent necessary to alert the public to misfeasance and malfeasance on the part of government officials." But by doing so, the complaint maintains, she "has been threatened with prosecution for violating Section 307" — a Class 2 petty offense punishable by a fine of up to $300.
In Peck's view, this interpretation goes too far and prevents accountability. "Without contacting lawmakers or reporters or community organizations to talk about reform, some of the most corrupt caseworkers are allowed to remain," she says. "When a child is injured or killed, we should all be asking important questions. We need to know who's watching DHS."
Adds Kelly: "The public is harmed when public officials — particularly those charged with looking after the safety and welfare of children — aren't doing their jobs. I dare anybody to say that's not a matter of public interest."
To illustrate its arguments, the lawsuit specifically mentions the fallout from two stories involving Peck clients. The first is "Why Did Jamel Myles Die?," a 5280 article, also from January, about "a nine-year-old who tragically took his own life in the late summer of 2018, after alleged bullying over his sexual orientation." During the course of her work on behalf of Myles's family, Peck is said to have "discovered that the Denver Human Services social worker's reporting on the case contained material errors and portrayed the actions and behavior of the child's surviving siblings and mother in a demonstrably false and derogatory manner."
After allusions to such claims turned up in the 5280 piece, the suit reveals, officers with the Denver Police Department contacted the magazine's staff, former DHS whistleblower Arthur Trass, who appears in the article, and Peck's clients demanding to know if they released Jamel's confidential records. "I can determinedly say it was not me," Peck adds. "But in this case, the mom begged for help from DHS for years — and there were significant, unprecedented mistakes made by Denver Public Schools and DHS. The mom can reveal DPS records, but she can't reveal DHS records? Her child was dead, and yet when she or somebody on her behalf provided that information to reporters on a nationally watched case, this is what happened. Is that how our system should work? Shouldn't the grieving parent of a dead child have an opportunity to seek help, to seek answers, under the current system?"
Later that same month, Westword reported about a custody hearing related to the former spouse of John Affourtit, who was then behind bars and awaiting trial on murder charges for allegedly causing the death of his girlfriend's son, a three-year-old named Jeromiah. The lawsuit stresses that the mother "was never accused of child abuse of any kind prior to DHS contact.... [But] while representing this individual, Ms. Peck again discovered that the same Denver Health Services social worker who submitted false reports in the Myles matter also submitted falsely derogatory reports in the case of the Affourtit child concerning her client."
Upon the publication of the Westword item on this subject, Peck was slapped with the gag order even though she "did not disclose identifying information pertaining to a child, a family member or other non-official person named in a child abuse record or report," the complaint allows. "Ms. Peck's comments in the article were limited to criticism of official conduct." Because she was threatened with prosecution anyhow, she "believes she cannot disclose governmental abuse when it relates to a child abuse reporter record. Any reasonable person in the same circumstances would harbor the same belief. As a result, Ms. Peck's speech has been, and remains, chilled and abridged."
Kelly is familiar with this scenario. "I've been dealing with this statute since the 1970s, in a case called Gillies v. Schmidt. It was a case attacking the practice of what was then the child protection team conducting all of their meetings in secret." The trial court entered an injunction requiring such get-togethers to be made public, but with the proviso that some information would remain confidential. However, Kelly notes, "the Court of Appeals reversed that — and the Supreme Court didn't hear it. Ever since, I've lived with the notion that this statute is overly broad and prevents disclosures of incompetence or outright misconduct. Jessica's stories really brought that to life for me, because it not only covers attorneys, but also parents who want to call out abuses by the people who are supposed to be protecting everybody's rights."
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Making changes in such a longstanding law won't be easy, Kelly acknowledges, "but I see it as relatively straightforward. The lawsuit makes a facial challenge to the statute, and Jessica's circumstances give her standing. We have the right to challenge it on behalf of all speakers who might be constitutionally affected, including parents."
Under the law, Peck is reluctant to provide too many details about the mom's custody case previously covered in this space, other than to say, "It was a positive outcome." She adds, "I would go to court sitting between them, mother and father, and I could feel their tears falling on me. They were hysterical from crying about this situation. What [Affourtit] did or didn't do, I can't say. But it should be my client's right to have her views and be treated with fairness and respect. Without that, who knows what would have happened?"
As for the motivation behind the lawsuit, Peck contends, "This gets to the very core of our rights as parents. If we deny the rights of a grieving parent to find out what happened to their child, our Constitution stands for nothing in those cases."
Click to read Jessica Peck v. State of Colorado, et al.