Plaintiff's Brief Regarding the Constitutionality of Central Registry
COLORADO STATE DEPARTMENT OF SOCIAL SERVICES
Plaintiffs, by and through their counsel, The Law Finn of
Stayton & Brennen, hereby submit their brief concerning the issue of the
constitutionality of the statutory scheme underlying the Colorado Central
Registry for Child Protection. The parties have previously submitted a
Statement of Stipulated Facts, which statement is incorporated herein by
The Statutory Scheme
The Colorado Central Registry for Child Protection was
created by the Colorado legislature in 1969 and is currently incorporated into
Article 3 of the Colorado Children's code. C.R.S. 19-3-313. The purpose of the
Registry, according to the Defendant, which is responsible for its operation, is
(P)rovide a tracking system of children who have been
mistreated and of the individual responsible for the injury or neglect. The
Central registry also serves as a statewide data system to profile abuse and
neglect within Colorado.
An important reason for tracking abused and neglected
children and alleged perpetrators is to provide county departments of social
services and law enforcement agencies with information about prior incidents.
This information is important in the initial stages of investigations and in
determining the chronicity of injurious behavior. The Central Registry file is
also used in screening applicants for day care centers, family foster homes,
and licensed care facilities.
(Colorado Department of Social Services, Reporting of child
Abuse to Colorado Central Registry — Fiscal Years 1977 to 1985, p. 2.)
Another portion of the same statute defines "child abuse
or neglect" as an act or omission encompassing any of the following
categories which threatens the health or welfare of a child:
a. Any case in which a child exhibits evidence of skin
bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any
bone, subdural hematoma, soft tissue swelling, or death, and such condition or
death is not justifiably explained, or where the history given concerning such
condition or death is at variance with the degree or type of such condition or
death may not be the product of an accidental occurrence;
b. Any case in which a child is subjected to sexual assault
or molestation, sexual exploitation, or prostitution; or
c. Any case in which a child is in need of services because
the child's parents, legal guardians, or custodians fail to take the same
actions to provide adequate food, clothing, shelter, medical care, or
supervision that a prudent parent would take. C. R. S. 19-3-303 (1) (a).
In defining child abuse or neglect, the legislature also
mandated that "accepted child rearing practices of the culture in which the
child participates" are to be taken into account. Thus, individuals who are
accused or suspected of child abuse or neglect are statutorily protected in
committing "acts which could be construed to be a reasonable exercise of
parental discipline." C. R. S. 19-3-303 (1) (b).
Reports of suspected child abuse or neglect are reported to
and investigated by the particular county department of social services in which
the alleged abuse or neglect occurred. Copies of the county reports are then
forwarded to the Central Registry. C. R. S. 19-3-307.
Once the Central Registry has received and filed a report
from the county, it sends Form CWS-59B to the "person responsible for the
incident." This notice informs the "perpetrator" that he or she
may request the Director of the Registry to expunge or otherwise amend the
report. The decision to expunge is made by the Director and is based solely on
"the investigation made by the county department or the local law
enforcement agency." C. R. S. 19-3-313 (4) and (7).
Under C. R. S. 19-3-313 (7):
If the director refuses or does not act within a reasonable
time, but in no event later than thirty days after such request, the subject
shall have the right to a fair hearing as provided under the "State
Administrative Procedure Act" to determine whether the record of the
report in the central registry should be amended, sealed, or expunged on the
grounds that it is inaccurate or it is being maintained in a manner
inconsistent with part 3. ... The burden of proof in such a hearing shall be on the
county department. In such hearings the fact that there was such a finding of
confirmed child abuse or neglect shall be presumptive evidence that the report
An adverse finding by an administrative law judge at the fair
hearing may then be appealed to the appropriate district court pursuant to C. R.
S. 19-3-313 (13).
Although the statutory criterion for confirmation of a report
is "some credible evidence," the standard of proof on appeal at the
fair hearing is a preponderance of evidence based upon whether the registry
record is inaccurate or is being maintained in a manner inconsistent with the
statute. C. R. S. 19-3-313 (4) and (7). The Central Registry statute also
provides that a report may be expunged by the Director at any time for
"good cause shown." C. R. S. 19-3-313 (5).
The Analytical Framework
In their Complaint, Plaintiffs have asserted two bases upon
which the foregoing statutory scheme is unconstitutional. First, Plaintiffs
allege they possess certain liberty and property interests which have been
unconstitutionally infringed without due process of law. Second, Plaintiffs
argue the Central Registry statute is unconstitutionally vague. On both counts,
Plaintiffs rely upon both the state and federal constitutions. At the outset, it
must be conceded that "statutes are presumed to be constitutional, and a
party asserting that a particular statute is unconstitutional assumes the burden
of establishing such assertion beyond a reasonable doubt." Anderson v.
State Department of Personnel, 756 P.2d 969 (Colo. 1988). Nevertheless, as will be
shown herein, where it is demonstrated that a statutory scheme violates fundamental
notions of due process as recognized by federal and state law, that statute must
be ruled unconstitutional.
The United States Supreme Court has had numerous
opportunities to expound upon the proscription contained in the Fifth Amendment
of the federal constitution, and applied to the states in the Fourteenth
Amendment, that no person be deprived of "life, liberty or property,
without due process of law":
For more than a century the central meaning of procedural
due process ha(s) been: "Parties whose rights are to be affected are
entitled to be heard and in order that they may enjoy that right they must
first be notified." It is equally fundamental that the right to notice
and an opportunity to be heard "must be granted at a meaningful time and
in a meaningful manner." (Citations omitted).
Fuentes v. Shevin, 407 U.S. at 80, 92 S. Ct. at 1194, 32 L.
Ed. 2d at 569-70.
This mandate has been echoed by decisions of the Colorado Supreme Court, whose state constitution
(Article II, Section 25) contains an identical due process clause. Patterson v.
Cronin, 650 P.2d 531 (Cob. 1982).
It is also well settled that only a limited range of
interests fall within these provisions:
The requirements of procedural due process apply only to
the deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property. When protected interests are implicated,
the right to some kind of prior hearing is paramount. But the range of
interests protected by procedural due process is not infinite.
Board of Regents of State Colleges v. Roth, 406 U. S
.564, 92 S.
Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972),
Despite the above-quoted limitation, however, it has also
been held that protected liberty and property interests may be created and
defined not only by the Constitution itself, but also by federal and state
statutes and rules, or by contract, Board of Regents V. Roth, supra;
Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42L. Ed. 2d 725 (1975); People v.
Chavez, 629 P.2d 1040 (Colo. 1981); Anderson v. State Department, supra.
Once it has been determined that a protected liberty or
property interest is impacted by the actions of the state:
(T)he fundamental procedural due process safeguards of
notice and an opportunity to be heard "at a meaningful time and in a
meaningful manner" are absolute. However, the specific procedures
required will vary depending upon the nature of each case. Craig v.
449 E Supp. 385 (M.D. Ha. 1978). See Mullane v. Central Hanover Bank and Trust
Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950). In determining what procedures
must be afforded to satisfy constitutional due process requirements in a particular
case, the United States Supreme Court has formulated a balancing test which
weighs the following three factors: (1)
the kind of private interest at slake; (2) the risk of an erroneous deprivation
of that interest and the probable value of additional or substitute procedures
in reducing the risk; and (3) the public or governmental interest
involved and the fiscal and administrative burden additional procedural
requirements would entail. Smith v. Organization of Foster Families, 431 U.S.
816,97 S.Ct. 2094,53 L.Ed.21 14 (1977); Dixon v. Love, 431 U.S. 105,97
1723,52 L.Ed .2d 172 (1977); Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976); (Other citations omitted).
Patterson v. Cronin, supra, 650 P. 2d at 537.
As noted earlier, in addition to a claim that the Central
Registry statute deprives them of liberty and property interests without due
process, Plaintiffs also assert that the standards set out therein are
impermissably vague. As the United States Supreme Court has noted:
It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that man is free to
steer between lawful and unlawful conduct, we insist that laws give the person
of ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and discriminatory enforcement is
to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissable delegates basic policy matters to policemen,
judges and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute "abuts upon sensitive areas of basic First
Amendment freedoms," it "operates to inhibit the exercise of (those)
freedoms". Uncertain meanings inevitably lead citizens to "steer far
wider of the unlawful zone"... than if the boundaries of the forbidden
areas were clearly marked.
Grayned v. City of Rockford. 408 U.S. at 108109, 92 S.Ct. at
2298 2299 (1972).
Similarly, Colorado courts have held that "a statute
which is unconstitutionally vague constitutes a denial of due process"
under the Colorado Constitution. People v. Moyer, 670 P.2d 785, 789 (Cob. 1983).
"A statute is unconstitutionally vague if persons of common intelligence
must guess at its meaning." Moyer, supra at 789.
Given the foregoing analytical framework, Plaintiffs will now
proceed to demonstrate that they have protected interests which have been
infringed by the statutory scheme underlying the Central Registry, that the
procedures created thereunder are violative of the due process guaranteed them by the federal and state
constitutions, and that the standards employed by the statute are
Plaintiffs' Constitutionally Protected Interests
In the case at bar, it has been stipulated that each of the
named Plaintiffs has appeared on the Central Registry as a perpetrator of child
abuse or neglect. In most instances, the alleged abuse or neglect occurred in a
familial setting. Additionally, according to the operation of the statute,
anyone whose name appears on the Central Registry may be screened by potential
employers should they seek work in day care or child placement facilities.
of these circumstances implicates a liberty or property interest which is
protected by federal or state constitutional law.
In Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27
L. Ed. 2d 515 (1971), the United States Supreme Court ruled unconstitutional a
Wisconsin statute whereby the plaintiff's name was posted in retail liquor
establishments as one to whom liquor should not be sold, where the statute did
not provide for notice and a hearing prior to the posting. There, the Court
Generalizations are hazardous as some state and federal
administrative procedures are summary by reason of necessity or history. yet
certainly where the State attaches "a badge of infamy" to the
citizen, due process comes into play. ... "The right to be heard before
being condemned to suffer grievous loss of any kind, even though it may not
involve the stigma and hardships of a criminal conviction, is a principle
basic to our society. ..."
Where a person's good name, reputation, honor or integrity is
at stake because of what the government is doing to him, notice and an
opportunity to be heard are essential.
Constantineau, supra, 400 U.S. at 437, 91 S. Ct. at. 510.
In the case at bar, it cannot reasonably be disputed that the
labeling of Plaintiffs as perpetrators of child abuse or neglect is just the
type of "badge of infamy" to which the Constantineau Court was
referring. Moreover, said badge was attached to the Plaintiffs prior to any
hearing under the Central Registry statute.
It is true that the Supreme Court subsequently narrowed the
holding of Constantineau to require that some interest, apart from reputation
alone, be present to implicate due process. See Paul v. Davis, 424 U.S. 693,96
S. Ct. 1155, 47 L.Ed.2d 1405 (1976). However, both state and federal courts have
subsequently ruled that, in the context of statutes regulating the reporting of
child abuse or neglect, constitutionally protected liberty and property interests are implicated.
Petition of Bagley, 513 A. 2d. 331 (N.H. 1986); Bohn v. County of
Dakota, 772 F. 2d 1433 (8th
In the latter case, the Eighth Circuit noted:
The privacy and autonomy of familial relationships involved
in a case like this are unarguably among the protectable interests which due
process protects. We can conceive of no more important relationship, no more
basic bond in American society, than the tie between parent and child. In
Stanley v. Illinois, 405 U.S. 645,92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972), the
Supreme Court stated that the interest of a widower "in the children he
has sired and raised, undecidedly warrants deference and, absent a powerful
countervailing interest/ protection." Id. at 651, 92 S.Ct. at 1212.
The Court continued:
(T)he interest of a parent in the companionship, care,
custody and management of his or her children "come(s) to this Court with
a momentum for respect lacking when appeal is made to liberties which derive
merely from shifting economic arrangements." (citation omitted):
The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one's children have been deemed
"essential," "basic civil rights of man," and "rights
far more precious ... than property rights ... "It is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder."... The integrity of the family unit has found
protection in the Due Process Clause of the Fourteenth Amendment, the Equal
Protection Clause of Fourteenth Amendment, and the Ninth Amendment. (citations
In another case considering the protections due a foster
family, the Supreme Court first considered the case of natural families, and
concluded that "the liberty interest in family privacy has its source,
and its coutours are ordinarily to be sought, not in state laws but in
intrinsic human rights, as they have been understood in this Nation's history
and tradition." (citation omitted).
Bohn, supra, 772 F. 2d at 1435-36.
In a footnote concerning this issue, the Bohn Court noted:
In light of the protectable family interests we have set
forth above, however, we read Constantineau as controlling in this case and we
distinguish Paul. When the County Department found Bohn to be a child abuser,
it drove a wedge into this family and threatened its foundation. The stigma Mr.
Bohn suffers as a reported child abuser undoubtedly has eroded the family's
solidarity internally and impaired the family's ability to function in the
community. In light of these clear adverse effects on familial integrity and
stability, we find that Mr. Bohn's reputation is a protectable interest.
Because this stigma strikes so directly at the vitality of the family, we find
the reputation interest at stake to be clearly distinguishable from the respondent's record of petty crimes
in Paul, which was tied to no other protectable interest.
Bohn, supra, 772 F. 2d at 1436, Footnote 4.
In the instant case, as with many cases impacted by the
Colorado Central Registry, the inclusion of individuals as perpetrators of child
abuse is done in the context of a family setting. The statute itself is
cognizant of this fact when it proscribes the inclusion of the reasonable
exercise of parental discipline (C.R.S. 19-3-303(l)(b). Indeed, this latter
statutory provision can be construed as a separate state entitlement to
Plaintiffs which thereby invokes due process protection.
Apart from these liberty interests, the operation of the
Central Registry may effectively foreclose an individual whose name is included
thereon from gaining employment as a day care provider or in a related child
care field. The denial of employment has been held to be a separate property
interest which may also implicate due process considerations. See Board of
Regents v. Roth, supra.
Therefore, it is incontrovertible that the statutory scheme
underlying the Colorado Central Registry impacts both liberty and property
interests which are cognizable under the Federal and State constitutions and,
additionally, by the operation of a Colorado state statute.
What Process is Due?
Given the existence of a constitutionally protected interest,
it becomes necessary to analyze the Central Registry enabling legislation to
determine whether its procedures provide the Plaintiffs with that process which
is due them under the federal and state constitutions. As noted herein, persons
whose names are included on the Registry are not provided an adversarial hearing
until months and sometimes years after said inclusion. It is just such a
deprivation of their constitutional liberty and property interests without a
prior right to be heard which offends constitutional due process. This
unconstitutional deprivation can be clearly seen in the three-pronged test first
set out in Matthews v. Eldridge supra.
First, the kind of private interests involved are 1) certainly liberty (reputation and family) and 2) potentially property
(employment) interests. As to the former, the above quoted language from the
Bohn case indicates that the familial and reputational interests implicated
herein are the kind which are most sacrosanct under a constitutional analysis.
Indeed, the United States Supreme Court has ruled that deprivation of a liberty interest for even a minimal period
may violate due process. Goss v. Lopez, supra. There, the deprivation involved a
suspension of students from school for a period of only ten days. A fortiori a
deprivation of the most inviolate type of liberty interest for a period of
months or years is to be afforded special protection.
As to the potential property (employment) interest involved,
the federal and state courts have ruled that a pre-deprivation hearing is
normally required unless there are present some "extraordinary
circumstances where a valid governmental interest is at stake which justifies
postponement of the hearing until after the event." Patterson v.
Cronin, supra, 650 P. 2d at 537. Here, the avowed purpose of the Central Registry is
primarily to act as a tracking system for child abuse and neglect and to provide
a statewide data base. Plaintiffs submit that such a purpose is not such an
extraordinary circumstance which justifies postponement of a due process
hearing. Indeed, one court has ruled that, to the extent a Central Registry
purports to act as a clearinghouse for child abuse and neglect information, it
is per se violative of due process. Sims v. State Department of Public
438 F. Supp. 1179 (S.D. Texas 1977).
The second factor to be considered is the risk of an
erroneous deprivation of that interest and the probable value of additional or
substitute procedures in reducing that risk. In the case at bar, because child
abuse or neglect may often depend upon the veracity of witnesses who can testify
to the facts constituting abuse or neglect and to the causal connection between
the alleged perpetrator and the perceived abuse or neglect, there is a
significant risk of an erroneous deprivation. This is not a circumstance such as
that presented in Patterson v. Cronin, supra, where it was relatively easy to
determine that a parking violation had occurred and where the alleged violator
had already had an opportunity to contest the validity of a parking ticket.
See Patterson, 650 P. 2d at 537.
Moreover, the statute already grants an adversarial hearing. The substitute or alternative procedure would simply be to grant the hearing at
a pre-deprivational stage. This would allow Plaintiffs an opportunity to contest
the adjudication at a stage which would prevent a deprivation in the first
place. Thus, the probable value of a pre-deprivation hearing is significant.
As to the last prong of the analysis, while Plaintiffs
concede there is some value in the avowed governmental interests of a Central
Registry, such interests are significantly outweighed by the previously
explicated private interests of the Plaintiffs. Moreover, since an adversarial
hearing is already provided by statute, there would be no additional fiscal or administrative burden in the substitute procedure of
providing the hearing at a pre-deprivational stage.
Therefore, under the balancing test which is mandated by the
infringement of Plaintiffs' protected liberty and property interests, the
operation of the statutory scheme underlying the Colorado Central Registry must
be declared unconstitutional. Indeed, in the case of Plaintiff John Doe, an
administrative law judge has concluded that the instant statutory scheme is
violative of constitutional due process requirements. (See Agency Decision in
Case No. SE 87-07 attached as exhibit 3). There, the ALJ felt constrained to deny
expungement despite his unconstitutional determination. However, it is within
this Court's power to make such a ruling. Plaintiffs respectfully request this
Court declare the statute in question is violative of their due process under
both the state and federal constitutions.
As previously noted, a statute should be declared void as
violative of due process if a reasonable person cannot determine what conduct is
prohibited or where the law impermissably delegates basic policy matters on an
ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory enforcement. The instant statutory provisions delineate just such
a vague law.
First, while the statute defines child abuse or neglect it
also permits the reasonable exercise of parental discipline based upon
"accepted child-rearing practices of the culture in which the child
participates." C. R. S. 19-3-303 (1) (b). Therefore, it is only after a
determination is made that a particular child rearing practice is unacceptable
that a person is cognizant that the particular practice constitutes abuse or
Additionally, the standards of proof set by the statute
create a circumstance wherein adjudication as a perpetrator is accomplished on
an ad hoc or subjective basis. First, the term "some credible
evidence" is not defined by the statute. In several fact patterns
delineated in the Statement of Stipulated Facts, a named Plaintiff was
vindicated in criminal or dependency and neglect proceedings, but was included
on the Registry.
Moreover, the statute seems to contain conflicting or
ill-defined expungement standards. While the statutory criterion for
confirmation of a report is "some credible evidence," the standard of
proof on appeal is a preponderance of evidence based upon whether the record in
the registry is inaccurate or is being maintained in a manner inconsistent with
These conflicting standards run the risk of arbitrary or conflicting determinations
Finally, the statute contains a further provision that a
perpetrator may be removed for "good cause" without defining that
term. Clearly, what may constitute good cause is a subjective finding and allows
for an ad hoc determination, precisely the process which offends due process
requirements in this area.
In light of the fact that Plaintiffs posses legal and
property interests which are constitutionally infringed without due process and
because the instant statute is unconstitutionally vague, Plaintiffs respectfully
request this Court declare the statutory scheme underlying the Central Registry
for Child Protection unconstitutional on its face as applied to the instant
|* Rowe Stayton is an
attorney at Stayton and Brennan, 1120
Lincoln Street, Suite 908, Denver, Colorado 80203. [Back]