Court Opinions: Colorado Court of Appeals Opinions for April 11

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Coomer v. Donald J. Trump for President, Inc. 

In the wake of the 2020 presidential election, certain members of the media and political figures began circulating claims of election irregularities. One of those claims centered on Eric Coomer, who was then an employee of Dominion Voting Systems, Inc., a company that provided election technology and support services throughout the country. 

The core of the allegations was on a supposed “Antifa” conference call in late September 2020; a person purported to be Coomer said he “made sure” then-President Donald Trump was “not going to win the election,” according to the opinion. Coomer denied ever being on such a call or making such a statement, and there’s no evidence he took any action to undermine the election results. 

Coomer sued several individuals and entities who shared reports of his alleged statement on the internet and in other media. He asserted claims for defamation, intentional infliction of emotional distress and civil conspiracy. The claims came before the Colorado Court of Appeals in a preliminary posture under Colorado’s Anti-SLAPP statute. Under that statute, the appeals court didn’t decide whether Coomer will prevail on his claims nor did it determine who is telling the truth about what occurred. 

The sole question the appeals court answered was whether Coomer had done enough to pursue his claims further. Coomer must establish a reasonable likelihood, not a certainty, he will prevail on each of these claims. The district court concluded Coomer had met this burden with respect to all claims against all defendants. 

The appeals court concluded Coomer met the burden with respect to his claims for defamation and intentional infliction of emotional distress. The appeals court also concluded Coomer had presented sufficient evidence at this preliminary stage to establish a reasonable likelihood of showing those statements were false and the defendants made them with actual malice. 

The appeals court concluded differently on Coomer’s civil conspiracy claims, at least with respect to the defendants who challenged that claim on appeal. Because Coomer has presented no evidence of an agreement to defame him or inflict emotional distress upon him, he hasn’t shown a reasonable likelihood of prevailing on this claim, according to the opinion. 

The appeals court also concluded the district court erred by addressing Coomer’s likelihood of prevailing on his request for an injunction in its order denying defendants’ special motions to dismiss because an injunction is a remedy, not an independent cause of action subject to dismissal under the anti-SLAPP statute. But because a request for injunctive relief isn’t the proper subject of an anti-SLAPP motion to dismiss, the district court’s denial of the special motions to dismiss that relief was correct on other grounds. 

The appeals court affirmed the denial of the special motions to dismiss the defamation claim, with the exception of two tweets it concluded are protected under the Communications Decency Act. The appeals court also affirmed the denial of the motions to dismiss the claim for intentional infliction of emotional distress and the request for injunctive relief. The appeals court reversed the denial of the motion to dismiss the conspiracy claim as to the defendants who challenged the ruling on appeal and remanded to the district court to consider certain defendants’ request for attorney fees and costs and for further proceedings. 

People v. Martinez

Stephanie Martinez appealed her conviction for criminal negligence resulting in the death of an at-risk person and second-degree assault. In this case, the Colorado Court of Appeals considered whether Martinez’ due process rights were violated when the court entered a conviction on an uncharged lesser included offense. 

According to the opinion, the conviction was premised on the jury’s answer to a verdict question presented in a special interrogatory at the close of evidence, even though the defendant knew about the fact addressed in the verdict question from the inception of proceedings. 

The appeals court held, notwithstanding the defendant’s awareness of the undisputed fact, the constitution prohibited a court from relying on the jury’s answer to the interrogatory to enter a conviction on the lesser nonincluded offense because such use of the answer “effectively subject[s] [the] defendant to … conviction for an offense that was not originally charged,” according to the opinion. 

The appeals court applied the constitutional harmless error standard of review and concluded in this case the prosecution didn’t prove beyond a reasonable doubt the constructive error was harmless. 

The appeals court reversed Martinez’ conviction for criminal negligence resulting in the death of an at-risk person, but it affirmed her conviction for second-degree assault and remanded the case with instructions to enter a conviction for criminally negligent homicide. 

Town of Kiowa v. Industrial Claim Appeals Office 

The town of Kiowa and its insurer, the Colorado Intergovernmental Risk Sharing Agency, sought review of the final order issued by the Industrial Claim Appeals Office awarding benefits to Kent Berends. The Colorado Court of Appeals affirmed. 

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