The litigation privilege: “free access to the courts is an essential right recognized by the Vermont Constitution.”

The litigation privilege, exemplified by Jacobsen v. Garzo, 149 Vt. 205, 209 (1988) and Kollar v. Martin, 167 Vt. 592, 593 (1997), precludes any claim, however labeled, for damages arising out of the threat or prosecution of litigation, unless the elements of abuse of process or malicious prosecution are satisfied.

As explained in Jacobsen, "[F]ree access to the courts is an essential right recognized by our state constitution." Jacobsen v. Garzo, 149 Vt. 205, 209 (1988); see Vt. Const. ch. I, art. 4 (remedy at law secured to all). The Court has limited the remedy for abuses of this right to two carefully restricted torts: abuse of process and malicious prosecution. Jacobsen, at 209.

“If the well-reasoned balance thereby struck between free access and remedy for serious abuse is really to mean anything then we must not permit circumvention by affording an unrestricted action under a different label.”

Id. (emphasis added; internal quotations omitted.) Jacobsen held, "as a matter of law, the filing of a lawsuit alone cannot constitute tortious interference with contractual relations." Id. at 209.

Kollar extended the holding in Jacobsen to the threat of litigation. Kollar states that the threat of filing a lawsuit is also protected by the constitutional right to access the courts. Thus a threat to file a lawsuit alone cannot constitute tortious interference with contractual relations. Kollar v. Martin, 167 Vt. 592, 594 (1997).