Joseph A. Salazar v. Public Trust Institute ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 15, 2022
2022COA109No. 21CA0601, Salazar v. Public Trust Institute — Courts and
Court Procedure — Action Involving Exercise of Constitutional
Rights — Anti-SLAPP; Appeals — Standard of Review — De
Novo; Torts — Malicious Prosecution — Quasi-Judicial
Administrative Proceedings
As a matter of first impression, a division of the court of
appeals establishes the manner in which a special motion to
dismiss under section 13-20-1101, C.R.S. 2021, commonly known
as Colorado’s anti-SLAPP statute, is reviewed. In addition, the
division holds for the first time that for an administrative
proceeding to form the basis of a malicious prosecution claim, it
must be quasi-judicial in nature.
COLORADO COURT OF APPEALS 2022COA109Court of Appeals No. 21CA0601
City and County of Denver District Court No. 20CV33689
Honorable Alex C. Myers, Judge
Joseph A. Salazar,
Plaintiff-Appellee,
v.
Public Trust Institute and Suzanne Staiert,
Defendants-Appellants.
ORDER AFFIRMED IN PART, REVERSED IN PART
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur
Announced September 15, 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
¶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
1SLAPP is an acronym for “strategic lawsuit against public
participation.”
1
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
2Staiert, in her capacity as Executive Director, filed the complaints
with both agencies. And in the opening brief, appellants treat
Staiert as the complaining party. Thus, unless necessary to
distinguish between them, we will refer to appellants collectively as
Staiert.
2
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
3 The IEC Rules apply C.R.C.P. 12(b) to dispositive motions.
Independent Ethics Commission Rules of Procedure, Rule 2(A)(8),
https://perma.cc/B26Z-6FX5.
3
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
4 A denial of a special motion to dismiss under the anti-SLAPP
statute is appealable. § 13-20-1101(7), C.R.S. 2021; see also
§ 13-4-102.2, C.R.S. 2021 (granting this court initial appellate
jurisdiction over such appeals). Staiert sought leave to file an
interlocutory appeal of the denial of the C.R.C.P. 12(b)(5) motion
pursuant to C.A.R. 4.2. However, a division of this court denied
that request.
4
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
5
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
6
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. 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. 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
7
take judicial notice. Peña v. Am. Fam. Mut. Ins. Co., 2018 COA 56,
¶ 14.
¶ 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. As with a motion
to dismiss, we review a summary judgment ruling de novo. Harvey
v. Catholic Health Initiatives, 2021 CO 65, ¶ 15.
¶ 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)
8
(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 (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 dismiss and a motion for summary judgment, we
review the grant or denial of a request for preliminary injunction for
an abuse of discretion.5 Friends of Denver Parks, Inc. v. City &
Cnty. of Denver, 2013 COA 177, ¶ 38. In doing so, we will not
disturb the district court’s factual determinations if they are
supported by the record. Id.¶ 18 In short, while the special motion to dismiss under the
anti-SLAPP statute has similarities to each of these three types of
motions, the differences call for some variance from each in terms
5 In truth, because a special motion to dismiss, if successful, would
bar the litigation, it is arguably more akin to a request for a
permanent injunction. But we compare it to a request for a
preliminary injunction because of the General Assembly’s
invocation of the “reasonable likelihood of success” rubric.
9
of the standard of review. For example, the question is not merely
whether the claim asserts a plausible basis for relief, see Warne v.
Hall, 2016 CO 50, ¶ 24, but whether the plaintiff has a reasonable
likelihood of success. The question is not whether undisputed facts
demonstrate that one party is entitled to judgment but whether any
material disputes of fact are reasonably likely to be resolved in the
plaintiff’s favor. And the question is not whether the court should
grant preliminary injunctive relief (which can, of course, be revisited
at a later point in the litigation) but whether the case should be
dismissed with prejudice.
¶ 19 Because of these differences, we reject Salazar’s call for us to
defer to the district court’s factual findings. First, in resolving a
special motion to dismiss, the district court does not make factual
findings, at least in the traditional sense. Indeed, the statute
provides that the district court’s determination, at this early stage,
that there was a reasonable likelihood of success on the merits is
not “admissible in evidence at any later stage of the case or in any
subsequent proceeding.” § 13-20-1101(3)(c). Moreover, to the
extent the district court’s preliminary determination can be
considered a factual finding, it is not based on any unique ability to
10
observe the witnesses but, rather, on a review of documents alone.
In these circumstances, an appellate court need not defer to the
district court’s factual findings. See Tyra Summit Condos. II Ass’n v.
Clancy, 2017 COA 73, ¶ 14.
¶ 20 Finally, we agree with Staiert that the review of a special
motion to dismiss is similar to a review of the sufficiency of the
evidence, in that a court reviewing such a motion is called on to
determine whether the plaintiff’s allegations and supporting
affidavit, viewed in conjunction with any opposing affidavit, meet
the legal threshold of establishing a reasonable likelihood of success
on the merits. Thus, we are reviewing a legal determination
necessary for the case to proceed, rather than a discretionary act
that is not case-dispositive such as the granting of a preliminary
injunction.
¶ 21 Taking into account the similarities and differences among
these various motions, we conclude that we review de novo a
district court’s ruling on a special motion to dismiss to determine
whether the plaintiff has established a reasonable likelihood of
prevailing on the claim. In doing so, we (like the district court)
consider first whether the motion and supporting affidavit establish
11
a prima facie case that the plaintiff’s cause of action falls within the
anti-SLAPP statute — that is, whether the claim arises from an act
“in furtherance of the [defendant’s] right of petition or free
speech . . . in connection with a public issue.” § 13-20-1101(3)(a).
If so, we then consider the pleadings and the supporting and
opposing affidavits to determine whether the nonmoving party (the
plaintiff) has established a reasonable likelihood of success on his
claim. We neither simply accept the truth of the allegations nor
make an ultimate determination of their truth. Instead, ever
cognizant that we do not sit as a preliminary jury, we assess
whether the allegations and defenses are such that it is reasonably
likely that a jury would find for the plaintiff.
C. Reasonable Likelihood
¶ 22 The statute does not define the term reasonable likelihood.
But in other contexts, Colorado appellate courts have treated
“reasonable likelihood” as equivalent to “reasonable probability.”
For example, when seeking preliminary injunctive relief pursuant to
C.R.C.P. 65(a), under one formulation of the standard of proof, the
moving party must demonstrate “a reasonable probability of
success on the merits.” Rathke, 648 P.2d at 653. But other
12
appellate cases define the standard of proof in that respect as
“reasonable likelihood.” See, e.g., Estate of Feldman, ¶ 17; Dallman
v. Ritter, 225 P.3d 610, 621 (Colo. 2010); Sanger v. Dennis, 148 P.3d
404, 407 (Colo. App. 2006); Bd. of Cnty. Comm’rs v. Fixed Base
Operators, Inc., 939 P.2d 464, 467 (Colo. App. 1997).6 The case law
analyzing the grant or denial of preliminary injunctions thus uses
the terms “reasonable probability” and “reasonable likelihood”
interchangeably.
¶ 23 We presume the General Assembly was aware of judicial
treatment of this phrase when it enacted the anti-SLAPP statute.
See Advanced Component Sys. v. Gonzales, 935 P.2d 24, 27 (Colo.
App. 1996), rev’d on other grounds, 949 P.2d 569 (Colo. 1997).
Thus, we conclude that “reasonable likelihood” in the anti-SLAPP
statute is synonymous with “reasonable probability.”
III. Application
¶ 24 Neither party disputes that Salazar’s claim arises out of
Staiert’s petitioning activity or speech in connection with a public
6 In light of this longstanding judicial treatment of these phrases,
we disagree with the district court’s conclusion that reasonable
likelihood is distinguishable from reasonable probability. This
disagreement, however, does not affect our disposition.
13
issue. Thus, we turn to whether Salazar has demonstrated a
reasonable likelihood of success on his claim. Staiert contends that
he has failed to do so for three reasons.
A. Malicious Prosecution Claim Premised on “Truthful
Complaints”
¶ 25 Staiert first argues that Salazar’s claim “should have been
dismissed because Colorado does not allow a malicious prosecution
suit based on truthful complaints to government investigators.” We
are not persuaded.
¶ 26 To prove a claim for malicious prosecution, a plaintiff must
establish “(1) the defendant contributed to bringing a prior action
against the plaintiff; (2) the prior action ended in favor of the
plaintiff; (3) no probable cause; (4) malice; and (5) damages.”
Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007).
¶ 27 Probable cause requires that the defendant believed “in good
faith . . . in the [wrongful conduct] of the [plaintiff in the underlying
action], and that such belief [was] reasonable and prudent.”
Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 508, 272 P.2d
643, 646 (1954); see W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 119, at 876 (5th ed. 1984) (“Probable cause is a
14
reasonable ground for belief in the guilt of the party charged.”).
“Probable cause is judged by appearances to the defendant at the
time he initiates prosecution.” Prosser and Keeton § 119, at 876
(footnote omitted).
¶ 28 Relying on Climax Dairy Co. v. Mulder, 78 Colo. 407, 418, 242
P. 666, 671 (1925), Staiert contends that “factually truthful”
complaints cannot support malicious prosecution claims.7 In that
case, the defendant reported facts to law enforcement that law
enforcement then used to obtain a search warrant for the plaintiff’s
premises. Id. at 409, 242 P. at 667. Based on the search, the
plaintiff was arrested and criminally charged, but then acquitted.
Id. Following his acquittal, he sued the defendant for malicious
prosecution. Id. at 408-09, 242 P. at 667. The Colorado Supreme
Court concluded that because the defendant provided law
7 Staiert also cites Walker v. Van Laningham, 148 P.3d 391 (Colo.
App. 2006), for this proposition. But Staiert misreads that opinion.
Though the plaintiff in Walker alleged that the complaints to the
government were unfounded, the opinion points out that the
plaintiff had, in fact, been convicted of some of the ordinance
violations that had been reported. Id. at 393. Thus, the opinion
cannot be read to suggest that a party that reports alleged
misconduct to the proper government authorities cannot be sued
even if, when making that report, the party knew the report was
factually or legally baseless.
15
enforcement with a “full, fair, and honest statement of the facts,” id.
at 419, 242 P. at 671, he could not then be liable because the
“officer incorrectly determine[d] that such facts constitute[d] a
crime.” Id. at 417-18, 242 P. at 670.
¶ 29 Staiert asserts that Climax Dairy’s holding establishes that so
long as a defendant’s complaint is factually truthful, it can never
give rise to a malicious prosecution claim. But Climax Dairy does
not stand for such a broad proposition. In that case, the
defendant’s knowledge was limited to the facts. There was no
indication that he was aware of the applicable legal standards or
whether the plaintiff’s conduct amounted to prosecutable criminal
behavior. The defendant in good faith believed that the plaintiff’s
conduct was wrongful and, thus, he did not lack probable cause.
¶ 30 An entirely different scenario arises where a defendant is well
versed in not only the facts, but the applicable law as well. If such
a defendant contributes to bringing a complaint when they know
that there is no legal basis for “prosecuting” the plaintiff, then they
may be liable for malicious prosecution because there would not be
probable cause for such a complaint. This is true regardless of
16
whether the factual allegations raised in the defendant’s complaint
are truthful.
¶ 31 The allegations in this case are less like those in Climax Dairy
and more in line with the latter scenario. Although the factual
allegations may have been truthful, there is a reasonable likelihood
that Salazar will be able to demonstrate that Staiert knew those
facts did not add up to a violation of the law. See POME, 677 P.2d
at 1369. We therefore reject Staiert’s contention that “[b]ecause
everything in Staiert’s complaints was truthful . . . [Salazar] cannot
pursue this case.”
B. First Amendment Protection
¶ 32 Staiert next argues that the First Amendment protects her
conduct and requires that Salazar’s claim be dismissed.
Specifically, she asserts that (1) Salazar failed to establish “actual
malice,” and (2) Salazar’s claim fails to meet the standard set forth
in POME. We decline to address the first contention — as it is
unpreserved — and reject the second.
1. Actual Malice
¶ 33 Staiert argues that “in a suit involving speech about a public
figure like former Representative Salazar, a plaintiff must prove
17
‘actual malice’ before liability may attach.” According to Staiert,
“actual malice requires clear evidence that the defendant made a
false statement of fact, either knowing it to be false or in reckless
disregard thereof.” And, relying on New York Times Co. v. Sullivan,
376 U.S. 254 (1964), she asserts that actual malice is different from
malice in the common law sense, and must be shown with
“‘convincing clarity,’ without resort to presumptions.”
¶ 34 In her special motion to dismiss, however, Staiert did not
argue that Salazar was required to sufficiently plead actual malice
to establish a reasonable likelihood of success on his malicious
prosecution claim. In the briefing on the special motion to dismiss,
Staiert cited Sullivan once in the motion itself and once in the reply
brief. The first reference was asserted as support for the following
statement: “Only in very limited circumstances is it proper to use
the levers of government to punish speech regarding public figures
like [Salazar].” The second reference, contained in a string cite in a
footnote, parenthetically referenced the holding from the case,
including that a public figure bringing a libel suit must show
statements made with knowledge of falsity or reckless disregard for
the truth. The string cite containing this reference was asserted in
18
support of Staiert’s position regarding the accuracy of her
statement of the POME principles. These passing references and, at
most, undeveloped arguments are insufficient to have preserved the
argument asserted on appeal. See Fiscus v. Liberty Mortg. Corp.,
2014 COA 79, ¶ 35 n.1 (“A skeletal ‘argument,’ really nothing more
than an assertion, does not preserve a claim.” (quoting United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))).
¶ 35 Because this argument is raised for the first time on appeal,
we decline to review it. See Mangone v. U-Haul Int’l, Inc., 7 P.3d
189, 191 (Colo. App. 1999) (“[P]laintiff did not raise this issue before
the trial court, and the issue was not properly preserved for
appellate review.”).
2. Application of POME
¶ 36 Staiert next contends that Salazar failed to produce sufficient
evidence to meet the POME test.
¶ 37 POME addressed the scope of the First Amendment right to
petition in the context of a claim for abuse of process. In POME, an
environmental group filed an unsuccessful C.R.C.P. 106 action
challenging a county board’s decisions to rezone on behalf of a
developer. 677 P.2d at 1362-63. The developer then sued the
19
group for abuse of process. Id. at 1364. The environmental group
moved to dismiss the developer’s claims, arguing that the Rule 106
action was a lawful exercise of its First Amendment right to petition
the government for redress of grievances. Id.
¶ 38 The Colorado Supreme Court concluded that the act of filing a
lawsuit challenging governmental activity is protected under the
First Amendment, and therefore the parties filing the lawsuit are
immunized from liability, unless the lawsuit is baseless or a sham.
Id. at 1365-66. It held that when “a plaintiff sues another for
alleged misuse or abuse of the administrative or judicial processes
of government, and the defendant files a motion to dismiss by
reason of the constitutional right to petition,” the plaintiff must
demonstrate that the defendant’s petitioning activity was not
immunized from liability under a three-part test. Id. at 1369. The
plaintiff must make a sufficient showing that
(1) the defendant’s administrative or judicial
claims were devoid of reasonable factual
support, or, if so supportable, lacked any
cognizable basis in law for their assertion; and
(2) the primary purpose of the defendant’s
petitioning activity was to harass the plaintiff
or to effectuate some other improper objective;
and (3) the defendant’s petitioning activity had
20
the capacity to adversely affect a legal interest
of the plaintiff.
Id.
¶ 39 As a threshold matter, Salazar contends that “the procedure
set forth in POME is inapplicable to cases where a special motion to
dismiss is filed pursuant to the Anti-SLAPP statute” because the
application of both imposes an excessive burden on a plaintiff such
as himself. Salazar also argues that the “heightened standards set
out in POME are overridden by the Anti-SLAPP statute.” He points
out that while “the Anti-SLAPP statute created a threshold
proceeding for testing constitutional viability, POME explicitly
created a summary-judgment procedure for assessing the same
issues.”
¶ 40 It is true that anti-SLAPP motions and POME motions occur at
different procedural stages and place different burdens on a
plaintiff.8 A challenge under the anti-SLAPP statute is a special
8 We do not agree with Salazar that, by enacting the anti-SLAPP
statute, the General Assembly intended to replace the POME
analysis. When a legislature seeks to abrogate established case
law, it generally must clearly express its intent to do so. Cf. Preston
v. Dupont, 35 P.3d 433, 440 (Colo. 2001) (discussing legislative
abrogation of common law). The anti-SLAPP statute does not
21
motion to dismiss and only allows the court to consider the
pleadings and supporting and opposing affidavits when assessing
whether the plaintiff has established a reasonable likelihood of
prevailing on his claim. § 13-20-1101(3). In contrast, a motion to
dismiss under the POME standard must be converted into a motion
for summary judgment, giving the “the parties a reasonable
opportunity to present all material pertinent to the motion.” 677
P.2d at 1369. And under POME, “the plaintiff must make a
sufficient showing to permit the court to reasonably conclude that
the defendant’s petitioning activities were not immunized from
liability under the First Amendment.” Id.
¶ 41 However, these differences do not mean that the POME test
should not be considered when ruling on a special motion to
dismiss under the anti-SLAPP statute. The ultimate question in
that circumstance is whether the plaintiff has demonstrated a
contain any such expression of intent. Nor do we read the statute
to be necessarily inconsistent with POME, as opposed to
supplementing it. In any event, even if the anti-SLAPP statute’s
procedural aspects were intended to replace a POME motion,
nothing in the statute overrides the substantive requirements POME
establishes for a lawsuit arising out of a defendant’s First
Amendment activity to meet constitutional muster.
22
reasonable likelihood that he will prevail on his claim. To do so in a
case involving the defendant’s exercise of the right to petition, POME
establishes what is necessary to overcome a constitutional
challenge to the claim. In other words, Salazar must ultimately
satisfy the POME standard to prevail on his malicious prosecution
claim. Therefore, when addressing at this early stage whether he
has demonstrated a reasonable likelihood of success, it is necessary
to consider — as the district court did — whether he has a
reasonable likelihood of making the required showing under POME.
¶ 42 Applying the POME test to Salazar’s malicious prosecution
claim, we conclude that he successfully established a reasonable
likelihood of successfully meeting all three elements.
¶ 43 The first element requires a showing that the defendant’s
administrative or judicial claims were devoid of reasonable factual
support, or, if so supportable, lacked any cognizable basis in law for
their assertion. Id. Both the SOS and IEC complaints Staiert filed
against Salazar were dismissed. The SOS concluded that none of
the alleged instances of misconduct constituted a lobbying
violation. As for the IEC complaint, Staiert herself conceded to the
IEC that three of the four instances did not actually meet the
23
definition of lobbying, and the final instance was dismissed by the
IEC for failure to state a claim pursuant to Rule 12(b)(5). Therefore,
Salazar sufficiently established that the administrative claims
lacked any cognizable basis in law.9
¶ 44 Next, Salazar demonstrated a reasonable likelihood of proving
that Staiert had an improper objective in filing the complaints. His
complaint alleges that Staiert brought these complaints despite
having personal knowledge that they lacked a legal basis. As the
district court noted, Staiert’s complaints “expressly accuse Mr.
Salazar of violating Colorado’s lobbying laws in the face of contrary
advisory decisions based on closely aligned facts — some of which
Ms. Staiert drafted herself.” Additionally, Salazar’s complaint
alleges that Staiert refused to participate in various stages of the
SOS and IEC proceedings, yet issued a press release accusing
Salazar of violating lobbying laws. The pleadings and affidavits
9Staiert argues that we should modify POME and require that
Salazar prove that her “complaint was false, baseless, or otherwise
a sham proceeding with no lawful purpose” since the malicious
prosecution claim here differs from the abuse of process claim in
POME. We discern no basis — nor the authority — to modify
supreme court precedent. Although POME involved an abuse of
process case, its factors are equally applicable to the claim here.
24
thus sufficiently establish a reasonable likelihood that Salazar will
be able to show that Staiert brought the complaints for an improper
purpose.
¶ 45 As to the third element, Staiert does not appear to contend
that Salazar’s legal interests could not have been adversely affected
by these complaints.
¶ 46 We pause to note an important detail. The district court’s (and
our) determination that Salazar has demonstrated a reasonable
likelihood of success is in no way an opinion that he will actually
prevail. Indeed, the statute prohibits a jury that ultimately hears
the case from learning about that determination and prohibits this
early screening determination from being given the effect of the law
of the case. § 13-20-1101(3).
¶ 47 That being said, at this preliminary stage, we conclude that
Salazar successfully demonstrated a reasonable likelihood that he
will prevail.
C. Sufficiency of the SOS Proceedings
¶ 48 Staiert next argues that the district court should have at least
granted the special motion to dismiss as to the SOS proceedings
25
because those proceedings lacked the necessary quasi-judicial
character to support a malicious prosecution claim.10 We agree.
1. Quasi-Judicial Administrative Proceedings as “Prior Actions”
for Malicious Prosecution Claims
¶ 49 As noted, to prevail on his malicious prosecution claim,
Salazar must prove that Staiert contributed to bringing a “prior
action” against him. Hewitt, 154 P.3d at 411. Staiert argues that
for an administrative proceeding to be such a “prior action,” it must
be quasi-judicial in nature.
¶ 50 Historically, the “prior action” element was limited to judicial
proceedings. Under common law, the thrust of the tort of malicious
prosecution has been “upon the misuse of criminal — and
sometimes civil — actions as a means for causing harm.” Prosser
and Keeton § 119, at 870. Although the action “began as a remedy
for unjustifiable criminal procedings [sic],” it has extended into the
field of “the wrongful initiation of civil suits.” Id. § 120, at 889.
10Staiert does not challenge the IEC proceedings on this ground. In
fact, in her motion to dismiss under C.R.C.P. 12(b)(5) she noted that
the proceedings before the IEC were “probably sufficient to get past
12(b)(5).”
26
¶ 51 Colorado courts have generally followed suit, holding that the
first element of a malicious prosecution claim may be established if
a defendant “was a party to or assisted in a criminal or civil
proceeding against the plaintiff.” Walford v. Blinder, Robinson &
Co., 793 P.2d 620, 623 (Colo. App. 1990); see also Slee v. Simpson,
91 Colo. 461, 465, 15 P.2d 1084, 1085 (1932) (“[O]ne of the
essential elements of a malicious prosecution is the commencement
or continuance of an original criminal or civil judicial proceeding.”).
¶ 52 In Walford, a division of this court extended the reach of the
tort and held that “a judicially enforceable arbitration proceeding
. . . may form the basis for a malicious prosecution action.” 793
P.2d at 623-24. In reaching its conclusion, the division cited Melvin
v. Pence, 130 F.2d 423 (D.C. Cir. 1942), for the proposition that
administrative proceedings can give rise to malicious prosecution
claims. According to Melvin,
[t]he same harmful consequences may flow
from the groundless and malicious institution
of proceedings in them as does from judicial
proceedings similarly begun. When one’s
livelihood depends upon a public license, it
makes little difference to him whether it is
taken away by a court or by an administrative
body or official. Nor should his right to redress
the injury depend upon the technical form of
27
the proceeding by which it is inflicted. The
administrative process is also a legal process,
and its abuse in the same way with the same
injury should receive the same penalty.
Id. at 426.
¶ 53 Several jurisdictions that have recognized malicious
prosecution actions based on administrative proceedings have
limited the concept to those proceedings that are quasi-judicial in
nature. See Hardy v. Vial, 311 P.2d 494, 495 (Cal. 1957) (“It is the
general rule that a malicious prosecution action may be founded
upon a proceeding before an administrative body. . . . The theory of
these authorities is that the same harmful consequences may result
from the malicious institution of administrative proceedings as from
judicial proceedings maliciously begun . . . .”); Kauffman v. A. H.
Robins Co., 448 S.W.2d 400, 403 (Tenn. 1969) (“[C]ertain
administrative proceedings are at least ‘quasi-judicial’ to the extent
that they may be the basis for a malicious prosecution action,
provided all the requisite elements of such an action are both
alleged and proved.”); Hillside Assocs. v. Stravato, 642 A.2d 664,
669 (R.I. 1994) (“[O]nly quasi-judicial contested administrative
determinations or proceedings that establish the legal rights,
28
duties, or privileges of a party after a hearing and that embody
sufficient attributes of judicial proceedings may generate causes of
action for malicious prosecution or for abuse of process.”).
¶ 54 Consistent with these authorities, the Restatement (Second) of
Torts § 680 (Am. L. Inst. 1977), has recognized that “[o]ne who
takes an active part in the initiation, continuation or procurement
of civil proceedings against another before an administrative board
that has power to take action adversely affecting the legally
protected interests of the other, is subject to liability for any special
harm caused thereby.” In other words, a quasi-judicial
administrative proceeding may lead to a malicious prosecution
claim. Id.; see Hellas Constr., Inc. v. Rio Blanco Cnty., 192 P.3d
501, 504 (Colo. App. 2008).
¶ 55 We agree with this reasoning. Consequently, we hold that for
an administrative proceeding to qualify as a “prior action” that may
give rise to a malicious prosecution claim, it must be quasi-judicial
in nature.
2. The Secretary of State Proceedings
¶ 56 We turn, then, to whether Salazar has demonstrated a
reasonable likelihood of success on his malicious prosecution claim
29
insofar as the claim is based on Staiert’s SOS complaint. We
conclude that Salazar has failed to demonstrate a reasonable
likelihood of proving that the SOS proceedings were sufficiently
quasi-judicial in nature to satisfy the “prior action” element of his
claim.
a. Preservation
¶ 57 Initially, we reject Salazar’s contention that this issue is not
properly before this court because “the district court did not
address the substance of that issue in its Order on the Special
Motion to Dismiss.”
¶ 58 In its order denying Staiert’s motion to dismiss under C.R.C.P.
12(b)(5), the district court considered this question and found that
“the SOS proceeding here was sufficiently judicial to satisfy the first
element of a malicious prosecution claim.” In her special motion to
dismiss, Staiert reiterated the argument that the SOS proceeding
was not sufficiently judicial in nature to establish the first prong of
Salazar’s claim.
¶ 59 In ruling on the special motion to dismiss, the district court
found that “Salazar has shown a reasonable likelihood of prevailing
on his claim,” including showing that “the defendant contributed to
30
bringing a civil or criminal proceeding against the plaintiff.” The
district court further noted that because its order on the Rule 12
motion to dismiss addressed Staiert’s argument that the
administrative actions in this case could not serve as the basis of a
malicious prosecution claim, that argument would not be
re-addressed in the order on the special motion to dismiss. In
substance, the court incorporated by reference its prior rejection of
the argument that the SOS proceeding was not a quasi-judicial
proceeding. Therefore, this question is properly before us.
b. Analysis
¶ 60 A quasi-judicial proceeding is one that “involves the
determination of rights, duties, or obligations so as to adversely
affect the protected interests of specific individuals, and it is
reached by application of preexisting legal standards or policy
considerations to past or present facts to resolve the particular
interests in question.” Hellas Constr., 192 P.3d at 504.
¶ 61 “[U]nsuccessful efforts to secure the institution of proceedings,
however malicious or unfounded, are not actionable as malicious
prosecution.” Melvin, 130 F.2d at 425. “The proceeding must,
however, have been commenced. It is not enough that a mere
31
complaint has been made to the proper authorities for the purpose
of setting prosecution in motion, where no official action ever has
been taken.” Prosser and Keeton § 119, at 871.
¶ 62 The regulations in effect at the time Staiert filed the complaint
provide that, upon receipt of a complaint, the Elections Division
conducts an initial review. Dep’t of State Rule 4.3.1, 8 Code Colo.
Regs. 1505-8 (effective Jan. 30, 2020). Based on the initial review,
the Elections Division may either dismiss the complaint or conduct
an investigation. Id. at Rule 4.3.2. After an investigation, the
Elections Division must make a motion to the Secretary of State to
dismiss the complaint if the division determines that it “does not
have reasonable grounds to believe that a violation . . . has
occurred, or otherwise concludes that enforcement pursuant to
Rule 4.6 is not warranted.” Id. at Rule 4.5.3. Otherwise, the
Elections Division initiates a formal, public hearing. Id. at Rule
4.6.1.11
11Salazar’s assertion that the SOS “will, following its investigations,
conduct hearings on the alleged infraction” is incorrect. The
regulation clearly provides that the Elections Division may initiate a
hearing only “[i]f, after its investigation, the division has reasonable
grounds to believe that a violation of [the lobbying statute] has
32
¶ 63 It is only at this point in the process that the Secretary of
State has authority to take legal action against the subject of the
complaint. See id. at Rule 4.6.2 (identifying the actions the
Secretary of State may take). In other words, only at this
enforcement stage does the Secretary of State have the “power to
take action adversely affecting the legally protected interests” of the
subject of the complaint. See Restatement (Second) of Torts § 680.
¶ 64 Staiert’s complaint only progressed through the investigation
phase. At that point, the Elections Division asked the Secretary of
State to dismiss the complaint. No formal proceedings were filed
and no hearing was initiated or held. Consequently, we conclude
that the SOS proceedings were not quasi-judicial in nature and,
thus, cannot support a claim for malicious prosecution.
¶ 65 Because Salazar cannot establish the “prior action” element of
his malicious prosecution claim as it relates to the SOS
proceedings, he has not demonstrated a reasonable likelihood of
success on that aspect of his claim. Accordingly, the district court
occurred.” Dep’t of State Rule 4.6.1, 8 Code Colo. Regs. 1505-8
(effective Jan. 30, 2020).
33
erred by denying Staiert’s special motion to dismiss with respect to
this portion of Salazar’s claim.
IV. Attorney Fees
¶ 66 Staiert requests attorney fees under section 13-20-1101(4).
That provision authorizes “a prevailing defendant on a special
motion to dismiss” to recover attorney fees and costs. Id. Although
we partially reverse the district court’s order denying the special
motion to dismiss, Salazar is still able to pursue a malicious
prosecution claim at this time. Thus, we do not view Staiert as a
prevailing defendant, and we deny the request.
V. Disposition
¶ 67 The order is affirmed in part and reversed in part. The case is
remanded for further proceedings on Salazar’s claim arising out of
the IEC complaint.
JUDGE DAILEY and JUDGE BERGER concur.
34