Joseph A. Salazar v. Public Trust Institute

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

2022COA109

No. 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 2022COA109

Court 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