The Colorado Supreme Court ruled on Monday that a 2019 law designed to protect the exercise of First Amendment rights conflicts with the state constitution in certain scenarios involving appeals from county courts.

Known as the “anti-SLAPP” law, which stands for “strategic lawsuits against public participation,” the legislature provided a mechanism for quickly disposing of litigation arising from a person’s rights to free speech and to petition the government. When a judge rules on a defendant’s motion to dismiss under the anti-SLAPP law, any appeal goes to the Court of Appeals.

But what happens when a lawsuit implicating those rights is filed in county court, where appeals of final decisions are constitutionally required to go to through the district courts or the Supreme Court?

In those situations, the anti-SLAPP law’s pathway is unconstitutional, concluded the Supreme Court. However, if a county judge’s decision on an anti-SLAPP motion does not end the case, the appeal can still go directly to the Court of Appeals.

“Ultimately, consideration of a simpler, arguably less confusing, appeal process for review of county court rulings in this context is a matter best left to the legislature, not this court,” wrote Justice Maria E. Berkenkotter in the Feb. 2 opinion.

In 2023, Rebeca Hinds filed a lawsuit in Chaffee County against her neighbor, Corinne Foreman-Rash. She claimed Rash defamed her by making false statements to police. Rash filed a motion to dismiss under the anti-SLAPP law and a county judge 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. Because the Colorado Constitution and state law direct appeals of final decisions to the district courts or Supreme Court, the Court of Appeals seemingly could not be the first stop for Hinds’ anti-SLAPP appeal out of county court.

“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 August 2024 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 conclude 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 did something different.

“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. “Without clarity on which court has jurisdiction over these matters, not only are the parties’ rights jeopardized if they fail to seek timely appellate review … but courts across Colorado are at risk of wasting judicial resources.”

Ultimately, the Supreme Court agreed with Rash that the Court of Appeals cannot be the first court to review a county judge’s anti-SLAPP order when that decision ends the case. However, the appellate court can still hear appeals of anti-SLAPP orders that do not resolve the litigation.

“We recognize that the path we carve here is not an elegant solution to the conundrum,” wrote Berkenkotter. “But the General Assembly’s choice to authorize a party to appeal this type of order when it does not end the particular action in which it is entered squares with … the Colorado Constitution.”

At the same time, the justices recognized Hinds “could not reasonably have anticipated that her appeal should have been filed in the district court.” The Supreme Court permitted her to refile her appeal of the anti-SLAPP decision in the correct court.

The case is Hinds v. Foreman.