Hebert v. Ritter

• Court: Colorado Court of Appeals
• Decided: March 20, 2025
• Docket: 24CA1035
• Status: Unpublished

Opinion

24CA1035 Hebert v Ritter 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1035 City and County of Denver District Court No. 23CV653 Honorable Andrew J. Luxen, Judge

Hal Hebert,

Plaintiff-Appellant,

v.

August William Ritter, Jr., a/k/a Bill Ritter, Jr.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE DUNN Tow and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025

Hal Hebert, Pro Se

Womble Bond Dickinson (US) LLP, James M. Lyons, Michelle Gaeng, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Hal Hebert, appeals the district court’s dismissal of

his defamation claim against defendant, August William Ritter, Jr.,

under the anti-SLAPP statute, section 13-20-1101, C.R.S. 2024.1

We affirm.

I. Background

¶2 In 2003, a jury convicted Hebert of first degree murder for

killing his wife. The trial court sentenced him to life in prison

without the possibility of parole. Since then, Hebert has repeatedly

(but unsuccessfully) challenged his conviction and imprisonment in

state and federal courts. According to Hebert, he did not kill his

wife but was framed by the prosecutors and police officers that

worked on his case.

¶3 The lead prosecutor on Hebert’s case, Kerri Lombardi, was

later appointed to the Denver County Court bench. When Judge

Lombardi was up for judicial retention in 2022, Hebert paid The

Denver Post to circulate a newspaper flier addressed to Denver

voters. As relevant here, the flier relayed Hebert’s belief that

1 “SLAPP” stands for strategic lawsuit against public participation.

1 • law enforcement “colluded” with prosecutors, including

Judge Lombardi, “to create and present evidence they knew

to be untrue in order to convict [him] of a crime he did not

commit”;

• Judge Lombardi knowingly presented a “false theory” to the

jury about how he killed his wife; and

• Judge Lombardi, law enforcement, and the trial judge

intentionally “withheld” exculpatory information about a

trial witness, Richard White, because “they intended to

allow [Hebert] to die in prison in order to protect their

careers.”2

The flier ended with the following question: “SHOULD A DISTRICT

ATTORNEY PROSECUTOR WHO HAS ENGAGED IN FALSELY

CONVICTING AN INNOCENT MAN BE ALLOWED TO CONTINUE

SERVING AS A DENVER DISTRICT COURT JUDGE?”3

2 After Hebert’s trial, Richard White was charged with and pleaded

guilty to several sexual assaults and murders. Hebert’s theory is that White killed Hebert’s wife. 3 Judge Lombardi is a Denver County Court judge, not a district

court judge.

2 ¶4 In response, Ritter (the former Denver District Attorney and

former Colorado Governor) wrote a “Guest Commentary” featured in

the “Opinion Columnists” section of The Denver Post. The

commentary, titled “Opinion: Don’t let a convicted killer sway your

vote on this judicial retention,” explained the history of Hebert’s

murder conviction and, referencing the decade Ritter and Judge

Lombardi had worked together as prosecutors (including on

Hebert’s case), advocated for her retention. Ritter ended his

commentary with the following message for voters:

In determining whether to retain Judge Lombardi, voters may utilize whatever information they have access to, including the recommendations of the Judicial Performance Commission. What I hope Denver voters do not consider are the baseless allegations of a convicted murderer written from his prison cell in the Colorado Department of Corrections.

¶5 Representing himself, Hebert brought a defamation claim

against Ritter, asserting that Ritter painted him as a “liar” by calling

the “facts” in his flier “baseless allegations.” Ritter then filed a

special motion to dismiss under the anti-SLAPP statute.

¶6 In a thorough written order, the district court granted the

motion and dismissed Hebert’s complaint with prejudice,

3 concluding that the anti-SLAPP statute covered Ritter’s statements

and that Hebert failed to show a reasonable likelihood of prevailing

on his defamation claim.4

II. Analysis

¶7 Hebert contends that the district court erred by concluding he

failed to show a reasonable likelihood of prevailing on his

defamation claim. We disagree.

A. Legal Principles and Standard of Review

¶8 The General Assembly enacted the anti-SLAPP statute “to

encourage and safeguard the constitutional rights of persons to

petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law and, at the

same time, to protect the rights of persons to file meritorious

lawsuits for demonstrable injury.” § 13-20-1101(1)(b). To balance

these interests, the statute provides a mechanism — a special

motion to dismiss — through which a court can weed out, at an

early stage, unmeritorious lawsuits brought in response to a

defendant’s petitioning or speech activity. Tender Care Veterinary

4 Though thorough, the district court’s order relies primarily on

California precedent despite available Colorado precedent.

4 Ctr., Inc. v. Lind-Barnett, 2023 COA 114, ¶ 12 (cert. granted Sept. 3,

2024); see § 13-20-1101(3)(a).

¶9 The statute lays out a two-step process for resolving a special

motion to dismiss. Tender Care, ¶ 13. At the first step, the

defendant must show that the anti-SLAPP statute applies; that is,

that the claim arises from the defendant’s exercise of free speech or

right to petition in connection with a public issue. Id. At the

second step, if the statute applies, the burden shifts to the plaintiff

to show a reasonable likelihood of prevailing on the claim. Id. at

¶ 14. If the plaintiff fails to make such a showing, the court must

grant the special motion to dismiss. Id.

¶ 10 We review de novo a district court’s ruling on a special motion

to dismiss. Id. at ¶ 15.

B. The District Court Properly Dismissed the Defamation Claim

¶ 11 Both parties agree that Ritter satisfied the first step and that

the anti-SLAPP statute applies. The dispute centers on the second

step. Hebert maintains that the district court erred by concluding

he failed to show a reasonable likelihood of prevailing on his

defamation claim.

5 ¶ 12 Ordinarily, to prevail on a defamation claim, a plaintiff must

prove that the defendant made a defamatory statement to a third

party, with fault amounting to at least negligence, and special

damages caused by the defamatory statement (or the actionability

of the statement regardless of special damages). See Anderson v.

Senthilnathan, 2023 COA 88, ¶ 12.

¶ 13 But when the alleged defamatory statement concerns a public

figure or a matter of public concern — as the parties agree it does

here — the plaintiff’s burden is heightened. Id. at ¶ 13. In these

cases, the plaintiff must (1) prove the statement’s falsity by clear

and convincing evidence; (2) prove by clear and convincing evidence

that the defendant made the statement with actual malice; and

(3) establish actual damages, even if the statement is defamatory

per se. Id. Clear and convincing evidence is evidence that is

“highly probable and free from serious or substantial doubt.” Id.

(quoting Creekside Endodontics, LLC v. Sullivan, 2022 COA 145,

¶ 36).

¶ 14 We recognize that divisions of this court differ on how to apply

this second step. Compare L.S.S. v. S.A.P., 2022 COA 123, ¶ 23

(adopting California’s “summary judgment-like procedure” under

6 which the court accepts the plaintiff’s evidence as true), with

Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 21 (explaining courts

should “neither simply accept the truth of the allegations nor make

an ultimate determination of their truth” but rather “assess whether

the allegations and defenses are such that it is reasonably likely

that a jury would find for the plaintiff”). We needn’t wade into the

differences, however, because — as explained later — the result is

the same regardless of which procedure we apply.

¶ 15 To satisfy his step-two burden, Hebert must establish, among

other things, that he will be able to produce clear and convincing

evidence that Ritter’s “baseless allegations” statement about

Hebert’s flier was false.

¶ 16 A statement is false if the substance or gist of the statement

was inaccurate. Jogan Health, LLC v. Scripps Media, Inc., 2025 COA

4, ¶ 23.

¶ 17 To support his defamation claim, Hebert submitted a sworn

complaint, his flier, the letters he wrote to Judge Lombardi and

Ritter requesting they admit wrongdoing, and Ritter’s commentary.

Hebert’s materials collectively reflect his position that he was

wrongfully convicted of his wife’s murder and, in particular, his

7 subjective belief that Judge Lombardi and others colluded to

fabricate evidence against him; that she knowingly presented a false

theory to the jury; that she and others intentionally withheld

exculpatory information from him about a trial witness; and that

Ritter called these “facts” “baseless allegations” to undermine

Hebert and protect Judge Lombardi.

¶ 18 In response, Ritter filed a special motion to dismiss that

denied that he made false statements. Ritter included in his motion

a request that the court judicially notice Hebert’s murder conviction

and ten related cases from state and federal courts rejecting, as

pertinent here, Hebert’s claims that (1) the search warrant

contained intentionally false and inaccurate statements; (2) a

detective coerced and intimidated witnesses; (3) the prosecution

violated his right to exculpatory evidence by failing to disclose

information about White; and (4) newly discovered evidence entitled

8 Hebert to a new trial. Hebert didn’t object to Ritter’s request, and

the court judicially noticed these cases.5

¶ 19 Ritter also attached to his motion a twenty-eight-page

independent report authored by the Denver District Attorney

Conviction Review Unit (CRU). The report outlines the CRU’s

“exhaustive review of [Hebert’s] claims,” which “included

examination of the underlying case” and “an independent

investigation” with “additional witness interviews and DNA testing.”

The report concludes that

• there was no “credible evidence that [Hebert] is actually

innocent”;

• information about White’s later crimes was not discovered

by law enforcement and prosecutors before Hebert’s trial,

5 Hebert now argues that the district court erred by judicially

noticing these cases. While we recognize that Hebert is self- represented, he is bound by the same procedural rules that apply to represented parties. See S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 36. To preserve an objection in a civil case, a party must raise it before the district court. See Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18. Because Hebert didn’t object to Ritter’s request, he waived the objection. See id.

9 but even if it had been, it was “not material” to Hebert’s

case;

• there was no evidence that White or another “alternate

suspect” killed Hebert’s wife; instead, “[a]ll” of the evidence

“strongly suggests that the only suspect was [Hebert]”;

• the results of the additional DNA testing “did not change the

conclusion that the overwhelming evidence established that

[Hebert] murdered” his wife, and given this “significant

evidence of guilt,” no further DNA testing “would be

probative of [Hebert’s] claims of innocence”; and

• there was “absolutely no evidence that any member of the

prosecution team or law enforcement engaged in any

wrongdoing.”

¶ 20 Based on the materials presented, Hebert’s “evidence” consists

of documents he drafted and the bald assertions in his sworn

complaint — characterized as “facts” — that he is innocent and was

wrongfully convicted. But even assuming Hebert believes all of this,

a jury did not, nor did countless courts. And even if Hebert believes

that the prosecutors — particularly Judge Lombardi — engaged in

unethical prosecutorial practices, an independent investigation

10 found otherwise. Hebert presented no competent evidence to

support his subjective beliefs and unsubstantiated allegations. And

subjective beliefs and unsubstantiated allegations do not create

issues of fact. Cf. S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC,

2019 COA 58, ¶ 15 (explaining that “affidavits containing mere

conclusions” are not sufficient to raise issues of material fact)

(citation omitted). Indeed, beyond his conclusory statements,

nothing Hebert presented called into question whether the

substance and gist of Ritter’s “baseless allegations” statement was

inaccurate. See Jogan Health, ¶ 23. For this reason, whether we

apply the procedure under L.S.S. or Salazar, the result is the same.

That is, under L.S.S., Ritter’s showing defeats Hebert’s claim as a

matter of law. See L.S.S., ¶ 23. And, under Salazar, Hebert has not

demonstrated a reasonable likelihood that he will prevail on his

claim. See Salazar, ¶ 21.

¶ 21 Having so concluded, we needn’t consider Hebert’s arguments

relating to actual malice and damages. See Anderson, ¶ 53. And to

the extent that Hebert raises new claims on appeal — for example,

those concerning the legitimacy of the CRU report and later

11 developments with a detective from his case — we don’t consider

them. See Bullock v. Brooks, 2025 COA 6, ¶ 33.

III. The Court Properly Denied Hebert’s “Mandatory” Motion for Judicial Notice

¶ 22 Before the court ruled on Ritter’s special motion to dismiss,

Hebert filed a motion for judicial notice. In it, Hebert listed some

information about a separate court case involving DNA testing. But

it also contained opinions and legal arguments concerning the

merits of his conviction and defamation claim. The court denied

Hebert’s motion, noting that it may only take judicial notice of facts

not subject to reasonable dispute because they are capable of

accurate and ready determination by resort to resources whose

accuracy cannot be reasonably questioned. See CRE 201(b).

¶ 23 Hebert then filed a second, nearly identical motion — this time

captioned “mandatory.” Citing CRE 201(d), he argued the court

was required, at his request, to judicially notice the contents of his

motion, which included exhibits with unverified news articles and

an AI-generated ChatGPT summary about a detective from his case.

12 ¶ 24 The court granted Ritter’s motion to dismiss, dismissed

Hebert’s complaint, and denied his second motion for judicial notice

as moot.

¶ 25 Hebert contends that the district court erred by denying his

second motion for judicial notice as moot. An issue is moot when

the relief sought, if granted, would have no practical legal effect.

See Educ. reEnvisioned BOCES v. Colo. Springs Sch. Dist. 11, 2024

CO 29, ¶ 26. Hebert doesn’t explain how a ruling on the second

motion would have had a practical effect on the dismissed

defamation claim or would have affected the court’s ruling on the

motion to dismiss. Nor does he argue any exception to the

mootness doctrine. See id. at ¶ 27 (listing the mootness

exceptions). Because the district court properly dismissed the

defamation claim under the anti-SLAPP statute, we conclude that

the district court did not err by denying the second motion for

judicial notice on mootness grounds.

IV. Attorney Fees

¶ 26 Ritter requests an award of appellate attorney fees, though not

under the anti-SLAPP statute. See § 13-20-1101(4)(a). Instead, he

requests fees under C.A.R. 38(b), arguing that Hebert’s appeal is

13 frivolous and vexatious. But a self-represented party may be

assessed attorney fees only if the court finds that “the party clearly

knew or reasonably should have known” that his action or defense

was “substantially frivolous, substantially groundless, or

substantially vexatious.” § 13-17-102(6), C.R.S. 2024. And Ritter

neither cites that statute nor argues that Hebert should be assessed

fees under it.

¶ 27 Because Ritter doesn’t address the standard for awarding fees

against a self-represented party, we decline to award appellate

attorney fees. See C.A.R. 39.1; Cikraji v. Snowberger, 2015 COA 66,

¶ 22.

V. Disposition

¶ 28 We affirm the judgment dismissing Hebert’s complaint.

JUDGE TOW and JUDGE MEIRINK concur.