The Colorado Supreme Court announced Monday that it will determine whether lawmakers inadvertently violated the state constitution by creating a single avenue of redress under a law designed to protect First Amendment conduct from lawsuits.

At least three of the court’s seven members must agree to hear a case on appeal.

The justices also accepted a case questioning whether designating a defendant as a “sexually violent predator,” thereby subjecting him to lifetime sex offender registration, is cruel and unusual punishment prohibited by the Eighth Amendment.

The “worst case scenario” happens

Colorado lawmakers passed in 2019 an “anti-SLAPP” lawwhich stands for “strategic lawsuits against public participation,” to provide a mechanism for quickly resolving disputes that involve a person’s First Amendment rights – in particular, the rights to free speech and petition to the government.

Every time a judge rules on an anti-SLAPP motion to dismiss, any appeal is brought before the Court of Appeal.

In 2023, Rebecca Hinds filed a lawsuit in Chaffee County against her neighbor, Corrine Rash. She claimed Rash defamed her by telling police Hinds intended to “invent” a domestic violence allegation. Law enforcement accused Hinds of making false reports, but prosecutors dismissed the charges.

Rash filed a motion to dismiss under the Anti-SLAPP Act. In June, County Court Judge Diana C. Bull granted it, finding that Hinds had not satisfied all elements of his defamation complaint.

Hinds appealed to the Court of Appeal, but a three-judge panel hearing the case noticed a problem. The Colorado Constitution and state law provide that appeals from final decisions of county courts go directly to the district courts or, in some cases, to the Supreme Court. In other words, the Court of Appeals cannot be the first venue for an anti-SLAPP appeal in county court.

Earlier this year, another appeals panel examined for the first time whether the anti-SLAPP law could be applied in eviction cases, which typically play out in county courts. The Court of Appeal answered yesbut warned there could easily be problems with district courts and the Court of Appeal having blurred jurisdictional lines over county court appeals.

The committee that considered Hinds’ appeal agreed that the exact complication was now before them.

“This worst-case scenario is of course occurring here. The County Court has issued an order from which the avenue of appeal is unclear,” wrote Judges Stephanie Dunn, Neeti V. Pawar and Pax L. Moultrie. in an order dated August 16.

The justices asked Hinds and Rash for their opinions on how the appeal should proceed in light of the apparent conflict between the anti-SLAPP law and the Constitution.

Hinds argued that the Court of Appeals should rule that county courts cannot hear anti-SLAPP motions and asked that his lawsuit be reinstated as if the dismissal never occurred. Rash responded that the legislature cannot override the constitution and that the Court of Appeal should reject the appeal because it does not have the authority to hear it.

Instead, the panel took a different direction.

“This case comes to this Court by a strange route,” appeal judges wrote to the Supreme Courtinvoking a little-used mechanism allowing the Court of Appeals to transfer a case to the state’s highest court.

The possibility of more county court appeals going directly to the Court of Appeal made Supreme Court intervention imperative, they argued. Among other issues, the justices noted that the anti-SLAPP law apparently conflicted with the constitution, potentially provided different avenues of appeal depending on whether a dismissal petition was granted or denied, and contradicted county court rules.

“Amid these uncertainties, each party to a county court case who is harmed by a ruling on a special motion to dismiss is obligated to respond themselves – within the allotted time – whether an appeal of the ruling is properly filed in this Court or in the District Court,” the appeals panel wrote.

On November 13, the Supreme Court agreed to intervene. It will determine whether the remedies provided by the anti-SLAPP law run counter to the Constitution.

The case is Hinds vs. Foreman.

Is lifetime registration of sex offenders a “punishment”?

Timothy Paul Beagle pleaded guilty in Jefferson County to attempted sexual assault and distribution of drugs to a minor, after engaging in grooming behavior with two runaway teenagers and assaulting one of them. In sentencing him, Chief Judge Jeffrey R. Pilkington found that Beagle met the criteria to be designated a “sexually violent predator.” which typically leads to lifetime registration of sex offenders.

Beagle argued that the label amounted to cruel and unusual punishment in violation of the Eighth Amendment. Pilkington disagreed, citing Colorado Supreme Court case law holding that a sexually violent predator designation “is not a punishment.”

The Court of Appeal recognized that Beagle’s argument had potential merit. In 2013, the Supreme Court emphasized in passing that such designations did not constitute a sanction. However, Then-Judge Nathan B. Coats was warned that if the court’s assumption were wrong, “there is no doubt that the (sex offender sentencing) system would fail, for a host of process-related constitutional reasons.”

Then, in 2021, the Supreme Court concluded mandatory lifetime sex offender registration for juveniles was, in fact, cruel and unusual punishment. Once again, the decision came with a caveat.

“Let us be clear: We express no opinion on the ability of the Legislature to impose lifetime sex offender registration for adult offenders,” the chief justice wrote. Monique Mr. Mark.

In reviewing the two decisions, the Court of Appeals panel reviewing Beagle’s case concluded that he had no viable constitutional challenge under current law to his designation as a sexually violent predator.

“We recognize that there are questionable tensions,” Justice Timothy J. Schutz wrote in January. But “it is the sole prerogative of the Supreme Court to overturn its previous decisions.”

The Supreme Court agreed to answer whether the designation constitutes punishment and, for Beagle, whether it is cruel and unusual.

The case is Beagle against people.