Rekieta is just fucked here. I guess he can appeal to the state Supreme Court, but they probably won't hear the case. Even if they did, Rekieta probably won't win.
Relying on the fifth factor really makes me think even the appeals court thought it was a close call. They usually don't even get to that. It's a balancing test where usually the first four decide it. They found the first two went one way, the third and fourth went the other, and then did the tie-breaker based on the fifth.
I'm not exactly a choice-of-law expert although I have written a few memos on issues like it, but that's unusual.
I still think it would be a really bad idea to try to go to the court of last resort on it, but I think Nick should do it anyway, for my amusement. Maybe he can try for en banc review on the way there. That would be fun.
Because I think Nick still loses the anti-SLAPP even if he somehow does ultimately win the choice-of-law battle. I just want to relish his agony.
Looking at the court document, it seems to have almost worked, but the Colorado law isn't settled enough to use in other states.
I wasn't actually aware of this, but the courts in Colorado haven't even resolved issues relating to their anti-SLAPP statute, since they don't have a unitary appellate system, so different divisions can reach contradictory decisions. So on top of asking a Minnesota court to import a statute from another state that is very similar to one decided to be unconstitutional by Minnesota's own Supreme Court, Nick was asking a Minnesota court to decide issues of law that Colorado itself hasn't even sorted out about its own law.
I'm actually surprised they found this a close call under these circumstances.
It strikes me as a well-reasoned opinion, though it does suggest Randazza managed to baffle them with bullshit to some degree.
Pled the 5th or don't get on the stand.
Good luck taking the Fifth when there's no allegation of criminal activity. Maybe he could claim he fears incriminating himself under Minnesota's criminal defamation statute, that is, that his defamation was so vile that it was literally a crime.