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Federal court tosses Peters’ appeal


Grand Junction Daily Sentinel

June 6, 2024

Former Mesa County Clerk Tina Peters lost in court again.

This time it was her appeal of a federal judge in her lawsuit alleging that state charges against her should be dropped because she was a whistleblower and that District Attorney Dan Rubinstein conspired to violate her free speech and immunity rights under the First and 14th Amendments.

A three-judge panel of the 10th Circuit Court of Appeals in Denver agreed with U.S. District Judge Nina Wang on Friday in tossing her lawsuit against Rubinstein, saying Peters didn’t meet any semblance of showing a burden of proof.

“Ms. Peters argues that her ‘efforts to comply with federal election law’ made her conduct ‘immune from state prosecution under the Supremacy Clause,’ and thus ‘deprived the state court of subject matter jurisdiction,’ ” Judge Scott Matheson Jr. wrote in the ruling, which was joined by Judges Robert Bacharach and Gregory Phillips.

“But Ms. Peters never presented this argument to the district court,” he added. “Appellants waive issues not raised before the district court absent arguing the ‘rigorous plain-error test’ on appeal. Ms. Peters does not argue plain error, so any Supremacy Clause immunity argument is ‘surely’ at the ‘end of the road.’” In dismissing the case against Rubinstein, which Peters had appealed, Wang said numerous exhibits that Peters’ attorneys presented didn’t come close to meeting the “high burden” of getting a federal court to interfere with a state trial, which is what Peters was seeking.

In her original lawsuit, which also named Colorado Secretary of State Jena Griswold and U.S. Attorney Merrick Garland, Peters also contends that Mesa County District Judge Matthew Barrett, who is overseeing her upcoming criminal case for election tampering and identity theft, restricted the kind of defense she will be allowed to mount when it comes to her constitutional rights.

But Wang, and the appeals court, disagreed, saying Peters cited no law that bars her from raising free speech and immunity rights at her state trial.

“She has made no argument that ‘state law clearly bars’ her from raising her claims,” Matheson wrote. “Rather, she asserts that the state court ‘made a ruling that precluded consideration of (her) federal claims.’ The record does not support her contention.”

Wang’s ruling, and now the appeal, not only removed Rubinstein from Peters’ lawsuit, but she also rejected her motion asking for a preliminary injunction to get the federal court to block Peters’ pending trail in state court, which is set to begin at the end of next month.

The ruling does not impact the case against Griswold and Garland.


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