Note: This page covers information specific to Colorado. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
While Colorado has no dedicated anti-SLAPP statute, Colorado courts have developed procedures that may provide some relief if you believe you are facing a SLAPP suit. If the lawsuit against you is based on your exercise of your "First Amendment right to petition the government for redress of grievances," the Colorado court will subject the plaintiff's claims against you to elevated scrutiny, making it easier for you to get those claims dismissed. Protect Our Mountain Environment, Inc. v. The District Court In and For the County of Jefferson, 677 P.2d 1361, 1368 (Colo. 1984) (a.k.a. "POME"; the special motion is generally referred to as a "POME motion," after the name of this case). With some possible exceptions, you will not be able to recover your attorneys' fees or court costs after a successful POME motion.
Activities Covered By Colorado's POME Motion
The POME decision on its face covers a very narrow range of conduct. Specifically, it protects the First Amendment right to petition the government for relief of legitimate grievances without fear of retaliation. In POME, an environmental activism group opposed a proposed real-estate development. The group brought a case against both the developer and the county board that had approved the project. The trial court and subsequent appellate court both ruled against the environmental group. The developer then sued the environmental group, claiming that the group had abused the legal process by challenging the proposed development.
The Colorado Supreme Court, in its decision on the developer's lawsuit against the environmental group, ruled that the First Amendment right to petition requires protection against this kind of lawsuit. Thus, in Colorado, if someone sues you because you previously filed a legitimate (non-frivolous) lawsuit, or otherwise petitioned the government for action, a POME motion might help you get the new lawsuit dismissed.
Subsequent cases have helped to clarify what sorts of "petitioning" are protected by POME. For example, attending public hearings to oppose a construction project is protected. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Repeated lawsuits in a contentious divorce are also within POME's purview. In re Foster, 2011 WL 2139136 (Colo., May 23, 2011). However, the outer limits of POME's protections remain unclear.
A 1986 Colorado Supreme Court decision suggests that at least some other lawsuits (like some libel claims) may require POME scrutiny as well. Concerned Members of Intermountain Rural Elec. Ass'n v. District Court, County of Jefferson, 713 P.2d 923 (Col0. 1986). See also James H. Moore & Associates Realty v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994) (implying that POME may apply to other First Amendment rights). However, a May 2011 trial court ruling (which is not binding in other cases) states that POME only applies if you are being sued for "misuse or abuse of the administrative or judicial processes of the government." It is therefore an open question as to whether POME would apply to defamation claims or lawsuits that do not alleged abuse of governmental process.
How To Use Colorado's POME Procedure
If you are sued over conduct (like a past lawsuit) that you believe may be protected by POME, you can file a motion to dismiss under C.R.C.P. 12(b)(5), raising the defense that your past conduct was protected by the First Amendment. At that point, the person suing you will have to satisfy POME's three-part test:
- That your past lawsuit, etc. was "devoid of reasonable factual support" or "lacked any cognizable basis in law";
- That your primary purpose was to "harass," or to "effectuate some other improper objective"; and
- That your past petitioning activity "had the capacity to adversely affect a legal interest" of the person now suing you.
What Happens If You Win A POME Motion
Generally, you will NOT eligible for an award of attorneys' fees if you win a POME motion. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Colorado does have a statute through which a defendant can receive costs and fees, but only if the lawsuit is dismissed in response to a standard motion to dismiss under CRCP 12(b). For this reason, you may wish to pursue other defenses before turning to POME; if you can win a motion to dismiss without relying on POME, you may be able to recover your costs and fees. See CRSA § 13-17-201.1
SLAPP-ing back
If you are facing a SLAPP-suit that does not fall within POME's protections, you may consider filing an abuse of process claim in response. Such a claim would require you to show
- An ulterior purpose for the lawsuit (such as, silencing your First Amendment rights),
- Willful action that is improper "in the regular course of the proceedings," and
- Actual damages.
See James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994). Remember that pursuing any legal claim can be a long, expensive process. Note also that your abuse of process claim would itself be subject to POME's standard.
1 You might be eligible for a potential award of attorneys' fees following a successful POME motion if neither you nor the plaintiff have presented evidence to the court beyond what is included in the plaintiff's complaint. In this situation, the statute providing for an award of fees and costs following a successful Rule 12(b) motion may apply. However, because you will be unable to control the scope of the evidence presented by the plaintiff in response to a POME motion, it is unlikely that this situation will occur.
