Salazar v. Pub. Trust Inst.

522 P.3d 242

2022 COA 109 M

Joseph A. SALAZAR, Plaintiff-Appellee,

v.PUBLIC TRUST INSTITUTE and Suzanne Staiert, Defendants-Appellants.

Court of Appeals No. 21CA0601

Colorado Court of Appeals, Division I.

Announced September 15, 2022

As Modified on Denial of Rehearing October 13, 2022

Levin Sitcoff Waneka PC, Bradley A. Levin, Jeremy A. Sitcoff, Robyn Levin Clarke, Denver, Colorado, for Plaintiff-Appellee

Daniel E. Burrows, Denver, Colorado, for Defendants-Appellants

Opinion by JUDGE TOW

¶ 1 Defendants, Public Trust Institute (PTI) and Suzanne Staiert, appeal the district court's order denying their special motion to dismiss the complaint for malicious prosecution filed by plaintiff, Joseph A. Salazar. PTI and Staiert filed the special motion to dismiss under section 13-20-1101, C.R.S. 2021, commonly known as Colorado's anti-SLAPP statute.¹

¶ 2 We affirm in part, reverse in part, and remand for further proceedings. In doing so, we consider, as a matter of first impression, the appropriate standard for resolving a special motion to dismiss under the anti-SLAPP statute, including whether a plaintiff's claims in this context are also subject to the standard set forth in Protect Our Mountain Environment, Inc. v. District Court , 677 P.2d 1361 (Colo. 1984) ( POME ). We also hold for the first time that an administrative proceeding may form the basis of a malicious prosecution claim only if the proceeding is quasi-judicial in nature.

I. Background

¶ 3 Salazar is a former state representative, former candidate for Colorado Attorney General, and former Executive Director of Colorado Rising, an environmental protection nonprofit organization. Staiert is a former Deputy Secretary of State for Colorado and former Executive Director of PTI, a nonprofit organization Staiert describes as having been "founded to promote open and accountable government."

¶ 4 In December 2019, while serving as PTI's Executive Director, Staiert filed two administrative complaints — one with the Office of the Colorado Secretary of State (SOS) and one with the Colorado Independent Ethics Commission (IEC) — alleging that Salazar had violated lobbying laws and regulations.² Specifically, based on Salazar's behavior on four occasions, Staiert asserted that Salazar had violated Colorado's lobbying statute, sections 24-6-301 to - 309, C.R.S. 2021, and Amendment 41 to the Colorado Constitution.

¶ 5 After conducting an initial review, the Elections Division of the SOS investigated the allegations in the complaint. The Elections Division then filed a motion to dismiss "on grounds that there is no factual or legal basis to establish violation of the lobbying regulation." The SOS granted the Elections Division's motion.

¶ 6 The IEC also reviewed Staiert's complaint. Salazar moved to dismiss the IEC complaint under C.R.C.P. 12(b)(1) and (5) for lack of jurisdiction and for failure to state a claim.³ The IEC then held a public hearing on the complaint and motion to dismiss. At the hearing, Staiert voluntarily dismissed three of the four alleged violations. The IEC then dismissed the fourth alleged violation for failure to state a claim.

¶ 7 After the SOS and the IEC dismissed Staiert's complaints, Salazar filed an action for malicious prosecution against PTI and Staiert, arguing "they were aware that Salazar's conduct did not violate Colorado's lobbying laws, but nonetheless filed their administrative complaints with the goal of damaging Salazar's reputation." In his complaint, Salazar alleged that

as a former Deputy Secretary of State [Staiert] knew there was no probable cause to bring these complaints against Plaintiff Salazar. Not only was Defendant Staiert fully knowledgeable of the relevant law here, but she actually applied the law in similar circumstances during her time as Deputy Secretary of State.... Furthermore, the clear exceptions to "lobbying" that the SOS stated applied to Plaintiff Salazar were in existence at the time when Defendant Staiert was the Deputy Secretary of State.

¶ 8 Salazar's complaint contained one claim of malicious prosecution, premised on both the SOS and IEC complaints. Before answering the complaint, Staiert filed two motions: a motion to dismiss under Rule 12(b)(5) and a special motion to dismiss under Colorado's relatively new anti-SLAPP statute.

¶ 9 The district court denied both motions in separate orders. Staiert appeals the denial of the special motion to dismiss.⁴

II. Applicable Law and Standard of Review

¶ 10 Staiert argues that the district court erred by denying her special motion to dismiss under the anti-SLAPP statute. She argues that (1) a malicious prosecution claim cannot be based on truthful complaints to governmental investigators; (2) the First Amendment requires Salazar's claim be dismissed; and (3) the administrative proceedings before the SOS were insufficient to support a malicious prosecution claim. We reject the first two arguments but agree with the third.

A. Anti-SLAPP Statute

¶ 11 In enacting the anti-SLAPP statute, the General Assembly declared "that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process." § 13-20-1101(1)(a). The statute's purpose is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury." § 13-20-1101(1)(b). In other words, the anti-SLAPP statute seeks to balance both parties’ constitutionally protected interest in petitioning the government, be it by participating in the legislative process, invoking the government's administrative or executive authority (such as by reporting suspected unlawful activity), or instigating litigation to protect or vindicate one's interests.

¶ 12 To effectuate this balancing, the General Assembly created a mechanism whereby the district court can make an early assessment about the merits of claims brought in response to a defendant's petitioning or speech activity.

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States constitution or the state constitution in connection with a public issue is subject to a special motion to dismiss unless the court determines that the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim.

§ 13-20-1101(3)(a). In determining whether the plaintiff has demonstrated a reasonable likelihood of success, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." § 13-20-1101(3)(b).

B. Standard of Review

¶ 13 The parties disagree somewhat as to the standard by which we are to review this matter — including what, if any, deference we are to afford the district court. No Colorado appellate court has yet to consider this question.

¶ 14 To the extent our resolution of this appeal turns on interpretation of the anti-SLAPP statute, our review is de novo. See In re Estate of Garcia , 2022 COA 58, ¶ 22, 516 P.3d 962. When interpreting a statute, we strive to give effect to the General Assembly's intent, reading the words and phrases of the statute in context, according them their plain meaning in view of the rules of grammar and common usage. Id.

¶ 15 In some respects, the special motion to dismiss is just that — a motion to dismiss. It seeks an early end to the litigation based, essentially, on the assertion that the plaintiff will ultimately, and inevitably, lose. We review de novo a district court's ruling on such a motion. Bewley v. Semler , 2018 CO 79, ¶ 14, 432 P.3d 582. In doing so, we (like the district court) must accept the factual allegations in the complaint as true, viewing them in the light most favorable to the plaintiff. Id. However, we may consider only the allegations contained in the complaint, documents attached as exhibits or referenced in the complaint, and matters of which the court may take judicial notice. Peña v. Am. Fam. Mut. Ins. Co. , 2018 COA 56, ¶ 14, 463 P.3d 879.

¶ 16 In other respects, the special motion to dismiss is more like a motion for summary judgment. For example, when considering a summary judgment motion, the court is to consider supporting and opposing affidavits if any are filed, as well as matters set forth in the parties’ discovery responses (if filed with the court). C.R.C.P. 56(c). Even where the pleadings and other submissions demonstrate that the material facts are undisputed, the court "must grant the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and it must resolve all doubts against the moving party." Ryser v. Shelter Mut. Ins. Co. , 2021 CO 11, ¶ 13, 480 P.3d 1286. As with a motion to dismiss, we review a summary judgment ruling de novo. Harvey v. Catholic Health Initiatives , 2021 CO 65, ¶ 15, 495 P.3d 935.

¶ 17 In yet other ways, an anti-SLAPP special motion to dismiss is similar to a request for injunctive relief, as the moving party is essentially seeking to enjoin the nonmoving party's lawsuit. Indeed, resolution of both turns on whether a party can demonstrate a reasonable likelihood of success. Compare § 13-20-1101(3)(a) (providing that a special motion to dismiss is to be granted "unless the court determines that the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim"), with In re Estate of Feldman , 2019 CO 62, ¶ 17, 443 P.3d 66 (noting that a "prerequisite[ ] to preliminarily enjoining someone is a reasonable likelihood of the moving party's success on the merits" (citing Rathke v. MacFarlane , 648 P.2d 648, 653 (Colo. 1982) )). In contrast to a motion to...