[00:00:00] Speaker 00:
Okay, we'll turn to 23-1109, Coomer versus Make Your Life Epic.

[00:00:06] Speaker 00:
Mr. Quinn?

[00:00:08] Speaker 03:
Go ahead.

[00:00:11] Speaker 00:
Okay.

[00:00:12] Speaker 03:
You may please the court.

[00:00:15] Speaker 03:
My name is Tom Quinn.

[00:00:16] Speaker 03:
I represent the Defendants Appellants in this case.

[00:00:20] Speaker 03:
I bring you, I've organized my argument or my presentation here today under two hands.

[00:00:25] Speaker 03:
The first is

[00:00:26] Speaker 03:
Should we be here and addressing the jurisdictional issues that may be present?

[00:00:31] Speaker 03:
And then the second is, why are we here?

[00:00:33] Speaker 03:
And those would be my concerns or our client's concerns with the district court's rulings.

[00:00:39] Speaker 03:
First of all, from my perspective, when you put the issues in the case together, we are here probably somewhat on adhesive first impression here in the 10th Circuit, at least with respect to jurisdictional issues.

[00:00:51] Speaker 03:
I will address the collateral order doctrine here in just a moment.

[00:00:54] Speaker 03:
But before we get there, I wanted to even, when you read across the cases, they recognize, and the defense recognizes, that the collateral order doctrine certainly has limited application.

[00:01:07] Speaker 03:
But those applications, or at least one of those application factors applies here in this case.

[00:01:12] Speaker 03:
And that is, when you look at both the Los Lobos case and then at the US District Colorado Park case of Moreau,

[00:01:19] Speaker 03:
that when there's constitutional-based immunities involved, the collateral order doctrine may well be triggered.

[00:01:26] Speaker 03:
That is one of the areas that should be protected.

[00:01:29] Speaker 03:
So let's talk about the collateral order doctrine.

[00:01:32] Speaker 03:
First of all, we understand there are three prongs to it.

[00:01:35] Speaker 03:
And the first prong being, did the district court order conclusively determine the disputed questions?

[00:01:41] Speaker 03:
Second, did it resolve issues?

[00:01:44] Speaker 03:
separate from the merits of the case?

[00:01:46] Speaker 03:
And then third, is the district court's order effectively unreviewable on appeal from the final judgment?

[00:01:54] Speaker 03:
Let me address number one and three first.

[00:01:57] Speaker 03:
Number one, the plaintiff has conceded in the district court level that the district court's ruling

[00:02:11] Speaker 03:
The denial of the anti-slap conclusively determined that issue.

[00:02:15] Speaker 03:
So I'm not going to raise it and discuss it here today unless the court has any questions.

[00:02:20] Speaker 03:
Number three, the plaintiff did not raise the issue, or whether the district courts ruled it effectively unreviewable on appeal.

[00:02:31] Speaker 03:
So I deem that as denied unless the court has any questions here today.

[00:02:36] Speaker 03:
So that turns us to number three on the should we be here, or excuse me,

[00:02:41] Speaker 03:
Call number two, and that is, did the district courts, did the district courts ruling resolve the issue, resolve an important issue completely separate from the merits of the case?

[00:02:55] Speaker 03:
I say the answer to that question is yes, and I'd point to four cases.

[00:02:59] Speaker 03:
The first would be the NCDR versus Maz and Bagby case in the Fifth Circuit.

[00:03:05] Speaker 03:
The second is the Henry versus Lake Charles case in the Fifth Circuit.

[00:03:10] Speaker 03:
The third would be the Bessel v. Smith case in the Ninth Circuit.

[00:03:14] Speaker 03:
And the last one is the DC Comics v. Pacific Pictures in the Ninth Circuit.

[00:03:18] Speaker 01:
So did the District Court not even consider the merits at all?

[00:03:25] Speaker 03:
The District Court did address the merits.

[00:03:27] Speaker 03:
It had to.

[00:03:28] Speaker 03:
Of course it did.

[00:03:29] Speaker 01:
It did.

[00:03:29] Speaker 01:
And so how do you say that it resolved an issue completely separate from the merits of the action if it considered the merits in coming to a decision?

[00:03:37] Speaker 03:
I think there's two ways to approach that.

[00:03:39] Speaker 03:
And the first is that when the court looks at the concept of the Colorado Anti-SLAM Statute,

[00:03:48] Speaker 03:
It looks at it as to whether or not the defendant has to defend against the case in question.

[00:03:57] Speaker 03:
It's not looking at, necessarily, how the plaintiff will succeed on the cases for appeal.

[00:04:03] Speaker 03:
And that's what, on our excuse me, on the district court case.

[00:04:06] Speaker 03:
I'm sorry.

[00:04:06] Speaker 00:
Wouldn't that be true whenever there's a motion for summary judgment?

[00:04:10] Speaker 00:
If the lateral order doctrine is satisfied in that circumstance, then anyone

[00:04:18] Speaker 00:
who's denied summary judgment could appeal.

[00:04:28] Speaker 00:
In qualified immunity, we allow it.

[00:04:30] Speaker 00:
But there, the issue of clearly established law is totally separate from whether you proved your case.

[00:04:40] Speaker 00:
But here, that's what the judge is deciding, was the case proved.

[00:04:47] Speaker 03:
No, the purpose of the anti-SLAPP statute.

[00:04:50] Speaker 03:
So let me just go back to the California anti-SLAPP statute, because I think that's the genesis of the Colorado anti-SLAPP statute.

[00:04:59] Speaker 03:
And the decisions, both in state and federal court, that are addressing the California, identify that what you're dealing with is something that is in the

[00:05:12] Speaker 00:
The community just means you can't be sued if you don't have a case, so we dismiss it on the pleadings or on summary judgment.

[00:05:23] Speaker 00:
I don't see quite what that gives you.

[00:05:28] Speaker 00:
You have to distinguish this from the typical denial of a motion for summary judgment before I'm going to understand why there's something completely separate from the merits.

[00:05:43] Speaker 03:
The issue is on the quasi-immunity.

[00:05:46] Speaker 03:
First of all, I believe we end up with a blend of the Erie Doctrine in answering some of those questions.

[00:05:53] Speaker 03:
So when you come to the Erie Doctrine, is there a substantive state law that we are going to apply here?

[00:06:02] Speaker 03:
And if the answer to that question is yes, then do you apply it fully at this stage?

[00:06:07] Speaker 03:
And so if we were to bring this case in state court and you were to be denied your anti-slat motion, then you would have an immediate right of appeal.

[00:06:17] Speaker 00:
That sounds pretty procedural to me.

[00:06:20] Speaker 00:
Hang on.

[00:06:21] Speaker 00:
Just so you'll know what you have to deal with.

[00:06:24] Speaker 03:
I understand what you're saying.

[00:06:25] Speaker 03:
You'd have an immediate right of appeal.

[00:06:27] Speaker 03:
But when you get to the federal court, which you will end up with,

[00:06:33] Speaker 03:
If you're a plaintiff and you file a constitutionally protected claim that has a constitutionally protected interest, such as freedom of speech, and you file it, and you come to federal court, and you know that you won't have the right of immediate appeal, you've delved into forum shop.

[00:06:57] Speaker 00:
But you acknowledged, I thought in your briefs,

[00:07:02] Speaker 00:
didn't pursue the claim that this right to appeal, given state law, should be applied, in this case, in federal court, under the Erie Doctrine.

[00:07:14] Speaker 03:
I'm sorry, I'm not tracking that process.

[00:07:16] Speaker 00:
You seem to be arguing that under the Erie Doctrine,

[00:07:20] Speaker 00:
you should not be deprived of the right to an immediate appeal that you have in state court.

[00:07:26] Speaker 00:
And I thought your briefs disowned that argument and said you're just relying on the collateral order doctor.

[00:07:33] Speaker 03:
That's the way I read your brief.

[00:07:35] Speaker 03:
Well, you are, Your Honor.

[00:07:35] Speaker 03:
But when you read the collateral order doctor cases, including the Los Lobos case, they do touch on the concept

[00:07:43] Speaker 03:
of Erie Doctor to make sure that if you come to federal court, and if you have a case that brings a substantive legal question to the court, then you should be entitled to all of the benefits, at least from my perspective, of the substantive law.

[00:08:00] Speaker 00:
What if the state just had a different rule about denials of summary judgment, and said if summary judgment is denied in general, you have the right to appeal?

[00:08:10] Speaker 00:
The loser at a summary judgment motion gets to appeal.

[00:08:13] Speaker 00:
If the summary judgment is granted, then the loser can appeal.

[00:08:17] Speaker 00:
That's standard.

[00:08:18] Speaker 00:
But in this circumstance, the person bringing the motion has the motion denied and then can appeal.

[00:08:28] Speaker 00:
That would be totally contrary to federal procedure.

[00:08:33] Speaker 00:
And I can't imagine that we would

[00:08:37] Speaker 00:
we would allow that sort of appeal just under the Erie Doctrine.

[00:08:41] Speaker 00:
There are certain things.

[00:08:42] Speaker 00:
You can say, boy, we couldn't put this evidence on in state court, or could put it on in state court.

[00:08:47] Speaker 00:
Now you guys under Dalbert aren't going to let me put on this expert.

[00:08:51] Speaker 00:
That hurts you a lot, but that's our procedure.

[00:08:56] Speaker 03:
I understand that, but the difference is then, and it's been noted in the cases which I referenced, is if you are dealing with an immunity-like status, an entitlement to an immunity,

[00:09:07] Speaker 03:
then you should have the right to follow both the state law and have a chance to challenge it on an immediate appeal so you don't have to stand trial.

[00:09:17] Speaker 03:
And I think that's the distinction.

[00:09:18] Speaker 03:
When you talk about some judgment, it's not rule 56.

[00:09:21] Speaker 03:
It wouldn't be on every rule 56.

[00:09:24] Speaker 00:
But it's an immunity-type status, immunity-type statute.

[00:09:31] Speaker 00:
Generally, immunity is totally separate from the merits.

[00:09:38] Speaker 00:
It's I can't be sued because I'm a government employee or I'm a judge, so you can't sue me.

[00:09:44] Speaker 00:
That's the one we keep in mind all the time.

[00:09:47] Speaker 00:
So those have nothing to do with the merits.

[00:09:50] Speaker 00:
The judge may have totally screwed up, but you can't sue the judge.

[00:09:53] Speaker 00:
So just the fact that you should win, it's not enough to distinguish this from the requirement in collateral order doctrine.

[00:10:08] Speaker 00:
to the cloud order doctrine has to be totally separate or separate from the merits.

[00:10:16] Speaker 00:
And that's what I'm struggling to see here.

[00:10:21] Speaker 03:
Well, Your Honor, one of the issues that I think the difference is under judicial immunity, that creates a status, right?

[00:10:27] Speaker 03:
That's you as a judge or me as a lawyer in a case, we can't get sued for what we do.

[00:10:33] Speaker 03:
We have either a privilege or immunity for doing so.

[00:10:36] Speaker 03:
The difference here is you're looking at protecting a constitutionally provided, both state and federal, freedom of speech.

[00:10:44] Speaker 03:
And that's the difference.

[00:10:46] Speaker 03:
So in order to make that analysis, you do intertwine with the merits.

[00:10:52] Speaker 03:
And I think some of the cases we've talked about or I've cited here today address the reality that at some point, there's going to be at least some touching of the merits as you go through and conducting an analysis, whether you constitutionally protect a right

[00:11:06] Speaker 03:
freedom of speech is, in fact, in jeopardy of the case.

[00:11:13] Speaker 00:
Deal with Los Lobos, because there, the court, this court, over a dissent that was pretty good, said that there was jurisdiction to handle the issue there, whether the slap statute can apply at all in federal court.

[00:11:33] Speaker 00:
And they distinguished cases in which

[00:11:35] Speaker 00:
you were addressing the ruling under a slap statute, and it cited a second circuit opinion, which was very similar to the case we've got here.

[00:11:46] Speaker 03:
Okay, and I think what Judge Sinkovich wrote in that case, and I think we were even looking at footnote eight when he talked about, you know, we can handle cases here in

[00:11:59] Speaker 03:
in federal district court under the use of the rules of civil procedure.

[00:12:05] Speaker 03:
I think he cited 11, 12, a couple of 12 and 56.

[00:12:09] Speaker 03:
I just don't think that should be distinguished as between what you're doing with a constitutionally protected freedom of speech right that's created under a state statute.

[00:12:24] Speaker 03:
You're protecting something you can't protect.

[00:12:27] Speaker 03:
a state law under the federal rules of civil procedure.

[00:12:31] Speaker 03:
First of all, I don't mean to criticize, but I've been practicing a long time.

[00:12:36] Speaker 03:
I don't think I've ever filed a motion under rule 11 because of someone's lawsuit against my client.

[00:12:42] Speaker 03:
So that's out.

[00:12:43] Speaker 03:
The concept of immunity is that you don't have to stay on trial.

[00:12:47] Speaker 03:
You don't have to incur the expense.

[00:12:49] Speaker 03:
You don't have to be exposed to the risk.

[00:12:51] Speaker 03:
56 takes you all the way

[00:12:53] Speaker 03:
to all the way to the end of the case.

[00:12:56] Speaker 03:
You've already standing trial.

[00:12:58] Speaker 03:
You've already had to stand for the case.

[00:13:00] Speaker 03:
So I don't think that's where I see the Second Circuit decision to be different than what we're dealing with here.

[00:13:06] Speaker 00:
Well, let me ask this.

[00:13:07] Speaker 00:
And then I want to give, my colleagues may have questions on merits if we do have jurisdiction.

[00:13:12] Speaker 00:
So this will be my last issue.

[00:13:17] Speaker 00:
What is the decision made by the district court in throwing out

[00:13:24] Speaker 00:
and the ledge slaps suit.

[00:13:26] Speaker 00:
Isn't it identical to granting summary judgment?

[00:13:31] Speaker 00:
Isn't really that what it's deciding, whether it should grant separate judgment?

[00:13:35] Speaker 03:
I don't think so, because the issue on summary judgment is the plaintiff, or the parting with the burden of proof.

[00:13:43] Speaker 03:
And they satisfy the burden of proof, and can they move forward to the conclusion of the case.

[00:13:48] Speaker 03:
Here, you're just determining whether or not

[00:13:50] Speaker 03:
You're determining whether the defendant is entitled to immunity.

[00:13:56] Speaker 03:
That ruling doesn't hold.

[00:13:57] Speaker 03:
It isn't introduced to the case.

[00:14:00] Speaker 03:
It isn't an appealable at a later date.

[00:14:04] Speaker 03:
It is a threshold decision made right now.

[00:14:06] Speaker 03:
That decision doesn't emerge at the end of the case, and you can appeal it to a higher tribunal at a later time.

[00:14:16] Speaker 00:
Go ahead and address merits.

[00:14:17] Speaker 00:
If you want to say more in jurisdiction, you can.

[00:14:20] Speaker 01:
Can I follow up on jurisdiction quickly, which is matching up Cohen, prong number two, and the slap statue's second step.

[00:14:31] Speaker 01:
The district court is evaluating if there's reasonable likelihood of success, right?

[00:14:37] Speaker 01:
Yes.

[00:14:39] Speaker 01:
And that ties directly back to resolve the issue completely separate from the merits of the action.

[00:14:44] Speaker 01:
And now back to Los Lobos, because I have serious questions whether we have jurisdiction.

[00:14:50] Speaker 01:
And Los Lobos says that on that question, these determinations necessarily turn on the merits of the lawsuit.

[00:14:58] Speaker 01:
So if we follow Los Lobos, if we follow the wording of the Slap Statute and Cohen, and if we were to follow Ernst, the Second Circuit, there wouldn't be appellate jurisdiction.

[00:15:21] Speaker 03:
I say that it is making a determination on the way the District Court of New Mexico denied even looking at the question of whether anti-SLAPP applied in the first place.

[00:15:35] Speaker 00:
I apologize for the question.

[00:15:36] Speaker 03:
I did not track all of the factors.

[00:15:38] Speaker 03:
I'm sorry about that.

[00:15:40] Speaker 03:
Anything else?

[00:15:41] Speaker 00:
Thank you.

[00:15:41] Speaker 00:
Well, thank you, counsel.

[00:15:43] Speaker 00:
Well, I should say something, too.

[00:15:44] Speaker 00:
I don't think we need security.

[00:15:46] Speaker 00:
I was concerned when we had so many people.

[00:15:48] Speaker 00:
I'm sorry, I keep meaning to say that to you after every break and I forget.

[00:15:52] Speaker 00:
But you've got more important things to do at this point.

[00:15:58] Speaker 04:
Good morning.

[00:15:59] Speaker 04:
May I please support?

[00:16:01] Speaker 04:
My name is Zach Bowman, and I'm here for appellee Dr. Eric Coomer.

[00:16:05] Speaker 04:
First, I will address that the court does lack jurisdiction to hear this appeal because it does not satisfy the collateral order doctrine, the decision below applied summary judgment standards under Rule 56, and directly address the merits of the case.

[00:16:19] Speaker 04:
And if this court disagrees and for any reason reaches the merits, there's more than enough evidence to show a likelihood of prevailing a trial.

[00:16:27] Speaker 04:
Now, opposing counsel was correct that this is somewhat of an issue of first impression, but I think the court's already identified.

[00:16:34] Speaker 04:
a key line of cases and reasoning within those cases that really answers the question before us today.

[00:16:39] Speaker 04:
And it starts with Los Lobos, which relies on the Ernst versus Kerrigan opinion of the Second Circuit, which in turn relied on the Johnson opinion out of the US Supreme Court.

[00:16:50] Speaker 04:
And then even more recently, this court's Barnett opinion, which cited the Abbas opinion from the DC Circuit, addressed some of these principles as well.

[00:16:59] Speaker 04:
So walking through that line of cases,

[00:17:02] Speaker 04:
really mandates one result.

[00:17:04] Speaker 04:
There's no jurisdiction here under the collateral order doctrine.

[00:17:08] Speaker 04:
As the court stated, Los Lobos recognized the distinction between a decision on whether to apply an anti-slap statute, which could satisfy the collateral order doctrine, and did in that case, and a case like this one, where the court does apply the anti-slap statute, looks at the merits of the case and whether there's a likelihood of success,

[00:17:27] Speaker 04:
And this court stated in Los Lobos, even though that wasn't the issue before the court that day, that that's the kind of case that would directly address the merits and not satisfy the collateral order doctrine.

[00:17:40] Speaker 04:
In Los Lobos, this court relied on Ernst versus Kerrigan out of the Second Circuit, which used that key language that it has to be completely separate from the merits.

[00:17:49] Speaker 04:
And I think Judge Phillips identified that very question.

[00:17:53] Speaker 00:
If we're looking at a likelihood of success,

[00:17:57] Speaker 00:
It's not as clear cut as it seems.

[00:17:59] Speaker 00:
I mean, qualified immunity frequently turns on something that's rather close to the merits.

[00:18:05] Speaker 00:
I'm not quite sure what completely separate means.

[00:18:11] Speaker 04:
And I think the courts may have struggled with that as well.

[00:18:13] Speaker 04:
The Ninth Circuit seemed to certainly struggle with it.

[00:18:15] Speaker 04:
But as Your Honor stated, if it was an issue of a judge being sued or someone with

[00:18:19] Speaker 04:
sovereign immunity or something that a fact that exists before that suit is even applied.

[00:18:25] Speaker 04:
Those are the kind of facts that are proven out to show immunity.

[00:18:28] Speaker 04:
Here we're going directly to the prima facie elements of each claim and whether there's enough merit under each element to proceed to trial.

[00:18:37] Speaker 02:
So you agree though that just in general that an anti-slap motion is available in federal court in Colorado?

[00:18:47] Speaker 04:
Your Honor, we didn't argue below one way or the other.

[00:18:51] Speaker 02:
So you've at least then waived your ability to contest that.

[00:18:55] Speaker 04:
I don't think we have.

[00:18:57] Speaker 04:
I mean, I don't think we need to get to there, because I think, honestly, this is a Rule 56 determination.

[00:19:03] Speaker 04:
And so under the straight collateral order doctrine, there's no appellate jurisdiction.

[00:19:07] Speaker 04:
If the court wanted to go there, I think it could, because it is a subject matter jurisdiction issue.

[00:19:12] Speaker 04:
And this court in Barnett did cite the Abbas opinion of the DC Circuit.

[00:19:17] Speaker 04:
written by then Judge Kavanaugh, which goes directly into that issue.

[00:19:21] Speaker 02:
So is it your opinion that the statute doesn't apply at all in Colorado Federal Court?

[00:19:26] Speaker 04:
I agree with this court's reasoning in Barnett where it cited that Abbas decision and said that it was a reasonable take on this that Rule 12 and Rule 56 occupy the field of whether a plaintiff is entitled to travel.

[00:19:42] Speaker 04:
That was Judge Kavanaugh's decision in the Abbas opinion.

[00:19:45] Speaker 04:
Um, I think that reasoning is pretty sound.

[00:19:48] Speaker 04:
The district courts in Colorado have applied it in federal court, but, but even this court, uh, I think in the Barnett decision recognized, does it even really matter if we're applying rule 56 or rule 12 standards, don't we end up with a decision anyway, whether the statute applies or not?

[00:20:06] Speaker 02:
Well, I mean, let's assume it applies.

[00:20:10] Speaker 02:
And if we accept your position.

[00:20:14] Speaker 02:
Then district court decisions on, you know, once they agree that the statute applies, district court decisions are unreviewable on the final judgment.

[00:20:27] Speaker 04:
I disagree that they'd be unreviewable.

[00:20:29] Speaker 04:
One thing that dissent pointed out in Los Lobos, somewhat scathingly from Judge Baldwin, was the idea that they could have sought a permissive appeal.

[00:20:40] Speaker 04:
And it really chastised the appellant's counsel there for not doing so.

[00:20:44] Speaker 04:
I think in that case, they'd already had a permissive appeal approved by the district court, but didn't go the extra step of getting it from the court of appeals.

[00:20:51] Speaker 04:
So that is an available avenue if a party wants to seek an early appellate review of this kind of decision.

[00:20:57] Speaker 02:
Agreed.

[00:20:58] Speaker 02:
But how does that impact the availability of any review after trial?

[00:21:04] Speaker 02:
Well, I mean, that's a different question, right?

[00:21:06] Speaker 02:
I think that's a different procedure for propping up an appeal.

[00:21:10] Speaker 02:
Right.

[00:21:11] Speaker 04:
And we're really focused

[00:21:12] Speaker 04:
at least in our argument on that second prong of the Cohen test, that this is not completely separate from the merits.

[00:21:20] Speaker 04:
And I think that's the key factor that they failed to meet here.

[00:21:24] Speaker 00:
Is there Colorado law on whether the decision in a slap motion is treated essentially the same as a summary judgment motion?

[00:21:36] Speaker 00:
There is, Your Honor.

[00:21:39] Speaker 04:
There is from the Colorado Courts of Appeals that have looked at this and said it is a summary judgment-like determination.

[00:21:44] Speaker 00:
Is it different at all?

[00:21:46] Speaker 00:
Is the standard of when you grant relief different from what it is with the summary judgment motion?

[00:21:53] Speaker 04:
I believe the relief is still going to be dismissal.

[00:21:56] Speaker 04:
I'm not talking about the relief.

[00:21:57] Speaker 00:
I'm talking about the decision-making process by the district court.

[00:22:02] Speaker 00:
Is it still whether no reasonable person could fine for the plaintiff?

[00:22:09] Speaker 04:
I think the courts have struggled with that, but have found that it's closest to a summary judgment standard with the reasonable likelihood language that's from the statute.

[00:22:18] Speaker 04:
They've looked at that as a reasonable probability.

[00:22:21] Speaker 04:
Of course, Rule 56 sets up a little bit of a different analysis in terms of whether there's a material fact issue or whether it's defeated as a matter of law.

[00:22:29] Speaker 04:
And we have a well-developed body of case law in Rule 56 and 12, which I think is why there's a strong opinion that this shouldn't apply in district court at all.

[00:22:37] Speaker 04:
But if it does,

[00:22:38] Speaker 04:
I mean, as opposing counsel admitted, they're not even arguing for an appellate right under the state statute.

[00:22:44] Speaker 04:
In page six of their response to our motion to dismiss, they state they're not pursuing that at all.

[00:22:50] Speaker 00:
So hypothesis, I'm sorry, go ahead.

[00:22:51] Speaker 00:
Let me just follow up.

[00:22:54] Speaker 00:
It seems to me that the standard for granting dismissal under the SLAP statute is less strict than the summary judgment standard.

[00:23:05] Speaker 00:
We might have a Seventh Amendment.

[00:23:07] Speaker 00:
issue here about the right to a jury draw in federal court.

[00:23:13] Speaker 00:
I think one of the circuits used that as part of their reasoning in interpreting the SPLAC procedure as identical to the summary judgment procedure.

[00:23:24] Speaker 04:
And I think that Colorado courts that have looked at it, including the federal district courts, have treated it like a summary judgment standard.

[00:23:33] Speaker 04:
I think that's the only way that

[00:23:34] Speaker 04:
It can reasonably be treated unless it is a purely legal Rule 12 type of argument.

[00:23:40] Speaker 04:
But I think Rule 12 and Rule 56 really govern how federal courts can look at these things.

[00:23:46] Speaker 04:
I think that's the only way that federal courts do it.

[00:23:49] Speaker 04:
But I think as Judge Kavanaugh identified, Rule 12 and 56 already answered that issue.

[00:23:55] Speaker 04:
And we don't need additional procedural rules.

[00:23:57] Speaker 04:
And that was the holding in Los Lobos when it was purely a procedural statute.

[00:24:02] Speaker 04:
was even though it did grant collateral order doctrine review, it ultimately determined this is a procedural anti-slap.

[00:24:09] Speaker 04:
We're not going to apply it in federal court.

[00:24:12] Speaker 04:
So we're looking here more at... Judge Carson had a question.

[00:24:15] Speaker 02:
Yeah.

[00:24:16] Speaker 02:
I hypothesize for me how we can have a slap motion in Colorado federal court that doesn't in some way look at the merits

[00:24:29] Speaker 04:
I think if it was asserting an immunity ground or a privilege ground, there might be a different type of argument for either granting collateral order review or stating that it doesn't address the merits.

[00:24:46] Speaker 04:
But that's certainly not what we have here.

[00:24:48] Speaker 02:
I guess I'm wondering.

[00:24:49] Speaker 02:
I mean, the statute appears to me, I mean, it's a political speech statute.

[00:24:57] Speaker 02:
You agree with that?

[00:24:59] Speaker 04:
I agree.

[00:24:59] Speaker 04:
It's a First Amendment issue.

[00:25:01] Speaker 02:
Yeah.

[00:25:01] Speaker 02:
I mean, so you can make commentary and give opinion on political matters and different matters and not be subjected to suit over it.

[00:25:11] Speaker 02:
Unless there's merit to the claims.

[00:25:14] Speaker 02:
Understood.

[00:25:14] Speaker 02:
So you necessarily have to consider what happened, the facts, to determine whether a dismissal is proper.

[00:25:27] Speaker 02:
And so that's every case.

[00:25:30] Speaker 02:
So there could never be an appeal in federal court.

[00:25:34] Speaker 04:
I think because it is a two-step process of does the statute apply?

[00:25:39] Speaker 04:
Yes, we look at the speech.

[00:25:40] Speaker 04:
But the speech isn't ultimately as much tethered to the merits of whether a claim is going to succeed.

[00:25:47] Speaker 04:
It's only whether a speech gets you in the door of the anti-slap protection.

[00:25:53] Speaker 04:
But then if we move to that second step, then we're purely looking at,

[00:25:56] Speaker 04:
What are the merits of these claims?

[00:25:58] Speaker 04:
Have they satisfied their evidentiary burden and put some evidence forth on each claim from each element to justify going to trial?

[00:26:07] Speaker 04:
And then we're totally within the merits.

[00:26:09] Speaker 04:
And I think as this court identified, this would essentially be justifying collateral order doctrine review for every summary judgment option.

[00:26:18] Speaker 02:
It just seems to me that you're positioned

[00:26:24] Speaker 02:
basically takes away the remedy of the statute.

[00:26:30] Speaker 04:
But again, Your Honor, they're not arguing for appeal under the statute.

[00:26:35] Speaker 04:
We're purely in the realm of deciding collateral order doctrine with you.

[00:26:40] Speaker 04:
It might be a different argument if they were, but that's not an argument that they're making.

[00:26:44] Speaker 04:
And the statute itself says you get an appeal to a Colorado court of appeals.

[00:26:49] Speaker 04:
I think that may be the language that justified not even arguing for

[00:26:53] Speaker 04:
appellate jurisdiction in front of this court.

[00:26:56] Speaker 04:
So they're purely arguing collateral order doctrine review here.

[00:27:00] Speaker 04:
And the Johnson case that I mentioned out of the US Supreme Court that was cited in the Ernst case sets out a lot of the reasoning for why we have this doctrine.

[00:27:10] Speaker 04:
I think the court's well acquainted with the fact that we don't want appeals before there are less developed records.

[00:27:18] Speaker 04:
We don't want appeals that are going to raise an issue for the first time.

[00:27:22] Speaker 04:
and then have another appeal after trial.

[00:27:25] Speaker 04:
In Johnson, the court stated that the requirement that the matter be separate from the merits of the action itself means that review now is less likely to force the appellate court to consider approximately the same or a very similar matter more than once.

[00:27:40] Speaker 04:
Well, that's exactly what we would have here.

[00:27:42] Speaker 04:
If this case proceeded to trial and came up on appeal again, this court would

[00:27:48] Speaker 04:
these factual issues just as it did at this anti-slap appeal.

[00:27:52] Speaker 04:
So the reasoning in Los Lobos and a lot of the cases I've gone through has been really a multi-pronged policy justification for adhering to the finality of judgments and strictly construing the collateral order doctrine.

[00:28:09] Speaker 04:
District courts are well acquainted with how to manage their dockets, how to get rid of frivolous claims,

[00:28:16] Speaker 04:
It was in Los Lobos that this court stated, anyone who believes that a federal district court is ill-equipped to deal swiftly and harshly with the sort of lawsuits described in an anti-slap statute, absent application of an anti-slap statute, and there was citing the New Mexico statute, is seriously mistaken.

[00:28:34] Speaker 04:
So here we have a senior district judge, Martinez, who's well-acquainted with the federal rules, able to apply those to

[00:28:42] Speaker 04:
get rid of any frivolous claims or anything that can't proceed to trial under Rule 12 and Rule 56.

[00:28:48] Speaker 04:
So there's no justification for applying the collateral order doctrine here.

[00:28:52] Speaker 04:
This was a decision on the merits.

[00:28:54] Speaker 04:
The court, I think, can write its decision either specifically as to this case because the opinion here did rely on Rule 56 standards or more broadly as to the anti-SLAP statute.

[00:29:08] Speaker 04:
It seems like the merits have been less of a focus here today, but if the court does get to the merits...

[00:29:18] Speaker 04:
defeating the anti-slap motion.

[00:29:20] Speaker 04:
Just as background, again, anti-slap motions are intended to defeat frivolous or meritless claims and prevent abuse of the judicial process, but to still protect the rights of persons to file meritorious lawsuits for demonstrable injury.

[00:29:34] Speaker 04:
That's exactly what we have here.

[00:29:37] Speaker 04:
A review of the record would show that there were defamatory statements that were made with actual malice.

[00:29:44] Speaker 04:
And those statements essentially operated around a core set of factual statements that Mr. Oldman, who was a repeated guest on the Thrive Time show with Mr. Clark, that he had infiltrated an Antifa conference call, that Dr. Kumher stated on that call that he rigged the election, and that he did in fact rig the election.

[00:30:07] Speaker 04:
And what's overwhelming in this case is

[00:30:10] Speaker 04:
This wasn't just a one-time representation.

[00:30:14] Speaker 04:
When this started in December of 2020, that show, that interview, was titled, Exposing the Treasonous Eric Kummer, the Antifa Member and Director of Strategy and Security at Dominion Voting Systems.

[00:30:26] Speaker 04:
That was just the beginning.

[00:30:27] Speaker 04:
That statement alone would justify a lawsuit.

[00:30:30] Speaker 04:
But we had over a year of representations on the podcast.

[00:30:35] Speaker 04:
Mr. Clark would then go on Mr. Oldman's podcast.

[00:30:38] Speaker 04:
Then they go on tour during the reawakening tour and I'm running out of time to address everything.

[00:30:44] Speaker 02:
So is your position on the statements that were made by Oltman that the defendant affirmed those and that's where the liability comes in?

[00:30:59] Speaker 04:
That's part of it, Your Honor, and that comes out of this court's decision in Dixon v. Newsweek that a party can be liable for republishing false defamatory statements.

[00:31:08] Speaker 02:
They didn't republish it, did they?

[00:31:10] Speaker 02:
They just gave him a forum for saying it.

[00:31:13] Speaker 04:
They gave him a forum, they tweeted a summary of the interview, they attached show notes, they repeatedly praised him for exposing the truth and bringing facts to light.

[00:31:24] Speaker 02:
Okay, so that's sort of the affirming it, right?

[00:31:26] Speaker 04:
Right.

[00:31:27] Speaker 04:
But also, Mr. Clark repeatedly would state that Mr. Oldman had discovered facts that had divulged some sort of election fraud.

[00:31:37] Speaker 04:
So he was repeating these statements himself as well, praising Mr. Oldman for verifying the truth.

[00:31:42] Speaker 04:
And just because that went on for a year, we had so many instances where we don't need to get into it.

[00:31:51] Speaker 04:
Anyway, if the court gets to it, it can certainly address the merits.

[00:31:54] Speaker 04:
But as we've stated, we don't believe there's jurisdiction here in the first place.

[00:31:58] Speaker 00:
And the ruling on jurisdiction is not an endorsement of your claim.

[00:32:02] Speaker 00:
You realize that.

[00:32:04] Speaker 04:
I do.

[00:32:06] Speaker 04:
Thank you very much for your time.

[00:32:08] Speaker 00:
I'm not going to give you time to respond on the merits.

[00:32:10] Speaker 00:
There's no way to do it in a minute or two anyway, really, as he learned.

[00:32:18] Speaker 00:
Thank you, counsel.

[00:32:19] Speaker 00:
Case is submitted.

[00:32:20] Speaker 00:
Counselor excused.

[00:32:21] Speaker 00:
We'll take a 10-minute break.