Colorado Supreme Court to examine whether portion of anti-SLAPP law is unconstitutional

The Colorado Supreme Court announced on Monday that it will address whether lawmakers inadvertently violated the state constitution by creating a unique pathway for appeals under a law designed to shield First Amendment conduct from lawsuits.

At least three of the court's seven members must agree to hear a case on appeal.

The justices also accepted a case questioning whether the designation of a defendant as a "sexually violent predator," thereby subjecting him to lifetime sex offender registration, is cruel and unusual punishment prohibited by the Eighth Amendment.

'Worst-case scenario' is happening

Colorado lawmakers in 2019 enacted an "anti-SLAPP" law, which stands for "strategic lawsuits against public participation," to provide a mechanism for quickly disposing of litigation that implicates a person's First Amendment rights — specifically, the rights to free speech and to petition the government.

Whenever a judge rules on an anti-SLAPP motion to dismiss, any appeal goes to the Court of Appeals.

In 2023, Rebecca Hinds filed a lawsuit in Chaffee County against her neighbor, Corrine Rash. She claimed Rash defamed her by telling police that Hinds intended to "make up" a domestic violence accusation. Law enforcement charged Hinds with false reporting, but prosecutors dismissed the charges.

Rash filed a motion to dismiss under the anti-SLAPP law. In June, County Court Judge Diana C. Bull granted it, finding Hinds had not satisfied all components of her defamation claim.

Hinds appealed to the Court of Appeals, but a three-judge panel assigned to the case noticed a problem. The Colorado Constitution and state law provide that appeals of final county court decisions go directly to district courts or, in some instances, the Supreme Court. In other words, the Court of Appeals cannot be the first stop for an anti-SLAPP appeal out of county court.

Earlier this year, a different appellate panel addressed for the first time whether the anti-SLAPP law could be applied in eviction cases, which typically unfold in county court. The Court of Appeals answered yes, but warned there could easily be problems with district courts and the Court of Appeals having unclear lines of jurisdiction over county court appeals.

The panel reviewing Hinds' appeal agreed that exact complication was now in front of them.

"This worst-case scenario is, of course, happening here. The county court has entered an order with an unclear path of appeal," wrote Judges Stephanie Dunn, Neeti V. Pawar and Pax L. Moultrie in an Aug. 16 order.

The judges asked Hinds and Rash to provide their thoughts about how the appeal should proceed in light of the anti-SLAPP law's seeming conflict with the constitution.

Hinds argued the Court of Appeals should rule that county courts cannot hear anti-SLAPP motions, and asked that her lawsuit be reinstated as if the dismissal had never happened. Rash responded that the legislature cannot override the constitution, and the Court of Appeals should reject the appeal because it had no power to hear it.

Instead, the panel went in a different direction.

"This case comes to this Court via a strange pathway," the appellate judges wrote to the Supreme Court, invoking a little-used mechanism allowing the Court of Appeals to transfer a case to the state's highest court.

The potential for more county court appeals to flow directly to the Court of Appeals rendered it imperative that the Supreme Court step in, they argued. Among other issues, the judges noted the anti-SLAPP law apparently conflicts with the constitution, potentially provides different paths for appeal depending on whether a dismissal motion is granted or denied, and contradicts the rules for county courts.

"Amid these uncertainties, every party to a county court case who is aggrieved by a ruling on a special motion to dismiss is forced to answer for themselves — with deadlines running — whether an appeal of the ruling is properly filed in this Court or in the district court," the appellate panel wrote.

On Nov. 13, the Supreme Court agreed to intervene. It will answer whether the anti-SLAPP law's pathway for appeals runs counter to the constitution.

The case is Hinds v. Foreman.

Is lifetime sex offender registration 'punishment?'

Timothy Paul Beagle pleaded guilty in Jefferson County to attempted sexual assault and distributing drugs to a minor, after he engaged in grooming behavior with two teenage runaways and assaulted one of them. In sentencing him, Chief Judge Jeffrey R. Pilkington found Beagle met the criteria to be designated a "sexually violent predator," which generally leads to lifetime sex offender registration.

Beagle argued the label amounted to cruel and unusual punishment in violation of the Eighth Amendment. Pilkington disagreed, citing case law from the Colorado Supreme Court deeming a sexually violent predator designation "not punishment."

The Court of Appeals acknowledged there was potential merit to Beagle's argument. In 2013, the Supreme Court noted in passing that such designations were not punishment. However, then-Justice Nathan B. Coats warned that if the court's assumption was wrong, "there can be no question that the (sex offender sentencing) scheme would fail, for a host of constitutional, process-related reasons."

Then, in 2021, the Supreme Court concluded mandatory lifetime sex offender registration for juveniles was, in fact, cruel and unusual punishment. Once again, the decision came with a caveat.

"To be clear: We express no opinion on the legislature’s ability to mandate lifetime sex offender registration for adult offenders," wrote Chief Justice Monica M. Márquez.

Looking at both decisions, the Court of Appeals panel reviewing Beagle's case concluded he had no viable constitutional challenge under current law to his sexually violent predator designation.

"We acknowledge that there is arguable tension," wrote Judge Timothy J. Schutz in January. But "it is the supreme court’s sole prerogative to overrule its prior holdings."

The Supreme Court has agreed to answer whether the designation is a punishment and, for Beagle, whether it is cruel and unusual.

The case is Beagle v. People.