Judge denies motion to dismiss former Boulder City Council candidate's lawsuit

Mar. 2—Editor's note: This article has been updated to correct a misspelled name.

A Boulder District Court judge denied a motion to dismiss the complaint against some of the defendants named in a lawsuit filed by former Boulder City Council candidate Steve Rosenblum.

The motion, filed in October by a legal team with Killmer, Lane & Newman in Denver on behalf of defendants Katie Farnan, Ryan Welsh, Mark Van Akkeren and SarahDawn Haynes, argues the lawsuit filed by Rosenblum is a SLAPP — Strategic Lawsuits Against Public Participation, meant to dampen free speech.

In a ruling such as this one, the court isn't required to conduct a full evaluation of the merits of Rosenblum's claims against those four, the Feb. 28 order signed by Judge Thomas Mulvahill notes.

"Rather, the court is determining whether there is a reasonable chance that during trial a jury may find the evidence presented reaches the "clear and convincing" standard," he wrote in the order.

To that end, Mulvahill determined that Rosenblum and his legal team introduced sufficient facts to support the claims, including wrongful misappropriation of name and likeness, defamation and civil conspiracy.

The Rosenblum lawsuit, filed Sept. 22, argues those named had been working against Rosenblum's campaign for City Council candidacy. Among other things, the lawsuit alleges that the defendants worked to prevent Rosenblum from receiving campaign endorsements.

It also alleges that websites and social media accounts were set up using Rosenblum's likeness without his permission.

When the motion to dismiss the complaint was heard in court on Feb. 1, attorneys Tom Kelley, who represents Farnan, Haynes, Van Akkeren and Welsh, and John Culver, who represents Eric Budd, argued that Rosenblum's lawsuit had been filed in an attempt to silence his critics during a contentious election.

The four defendants represented by Kelley's firm were named in the suit for their various roles in circulating and/or creating a letter opposing Rosenblum's City Council candidacy that was published by the Boulder Progressives, the motion notes.

Budd, however, is accused of creating a fake Twitter account with Rosenblum's name.

The account did not list any of Rosenblum's other personal information, nor did it make a post. However, its biography did include a link to the Safer Boulder Leaks blog, an anonymous blog whose contents the Camera has not been able to independently verify, that shares screenshots of a private Slack channel hosted by local political organization Safer Boulder.

In the screenshots, many of which were included in Rosenblum's complaint, some members of the Safer Boulder Slack channel make disparaging comments about people experiencing homelessness, including some that recommend violence against them.

At one point the Safer Leaks blog shared Reddit posts attributed to Rosenblum that were later determined to be from another user, the complaint states. The blog ultimately posted an update, retracting this original assertion and noting it could not prove a connection between Rosenblum and the Reddit account.

The inclusion of the link on the Twitter account played a role in Judge Mulvahill's decision.

"When viewed by a member of the public, this fake Twitter account reasonably intends to create the impression that (Rosenblum) himself agreed with the views and opinions espoused by the Safer Leaks Blog that was linked in the Twitter account's bio, defaming (Rosenblum) through this false attribution," the Feb. 28 order states.

Stan Garnett, former Boulder County District Attorney and a member of Rosenblum's legal team, said on Tuesday that "Steve is very pleased with Judge Mulvahill's thoughtful order that this case is not a SLAPP suit barred by the Anti-SLAPP statute."

"He looks forward to discovery and resolving the case on the merits and presenting his case to a Boulder jury," he added.

Kelley, on the other hand, said he generally found the ruling surprising.

"I was flabbergasted by the judge's willingness to hold participants in an election campaign liable for engaging in concerted activity in opposition to the candidate they oppose," he said.

He said it was surprising that the judge did not address the determinations of other courts, which have found that "you can't hold someone liable for conspiracy to defame unless you show that they published knowing that what they published was untrue or at least with a high degree of awareness that it was likely false."

Because of this, Kelley said he intends to file an appeal within the next two weeks. This would put the case in the hands of the Colorado Court of Appeals.

Regardless, Garnett said he felt good about Rosenblum's chances.

"We think it's a really good fair order and it's going to hold up on appeal and be back in front of a Boulder jury before long," Garnett said.