Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 21, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TINA PETERS,
Plaintiff - Appellant,
v. No. 24-1013 (D.C. No. 1:23-CV-03014-NYW-SKC) UNITED STATES OF AMERICA; (D. Colo.) MERRICK B. GARLAND, in his official capacity as Attorney General of the United States; JENA GRISWOLD, in her official capacity as Colorado Secretary of State,
Defendants,
and
DANIEL P. RUBINSTEIN, in his official capacity as District Attorney for the Twenty-First Judicial District,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 2
_________________________________
Tina Peters asked the district court to prevent Daniel P. Rubinstein, the
District Attorney for Mesa County, Colorado, from criminally prosecuting her in
state court because he allegedly retaliated against her for exercising her First
Amendment rights. She now appeals the district court’s decision to abstain under
Younger v. Harris, 401 U.S. 37 (1971), from reaching the merits of her claim. She
contends that the court (1) could not abstain because she is immune from state
prosecution and (2) improperly applied Younger. We affirm.
I. BACKGROUND1
A. Factual History
Ms. Peters is the former Mesa County Clerk in charge of elections. While
serving as clerk, she arranged for a consultant to enter a secured area of the clerk’s
office and to copy county voting records. She gave the copies to experts to analyze.
Based on the experts’ analysis, Ms. Peters concluded the county’s voting system had
vulnerabilities and petitioned the Board of County Commissioners to stop using its
system.
Federal, state, and local law enforcement searched her home.
1 Because Ms. Peters appeals from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), we need not assume the complaint’s factual allegations are correct, and we may consider the exhibits attached to her original complaint. See United States v. Rodriquez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). Ms. Peters did not reattach them to her First Amended Complaint, but like the district court, we consider them as incorporated into the First Amended Complaint. Joint App., Vol. IV at 765 n.7. We also assume Rule 12(b)(1) is a proper vehicle for a Younger abstention motion.
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B. State Court Proceedings
On March 8, 2022, a state grand jury indicted her on 10 criminal counts. The
indictment alleged that Ms. Peters (1) “devised and executed a deceptive scheme . . .
designed to influence public servants, breach security protocols, exceed permissible
access to voting equipment, and set in motion the eventual distribution of
confidential information to unauthorized people” and (2) used someone else’s “name
and personal identifying information” “without permission or lawful authorization”
“to further [her] criminal scheme.” Joint App., Vol. III at 527.
On May 5, 2022, Mr. Rubinstein moved to quash a subpoena duces tecum that
Ms. Peters had sent him requesting certain physical evidence related to the county’s
voting system.
On May 12, 2022, Ms. Peters moved for review of the grand jury indictment to
determine whether probable cause supported the charges against her.
On June 3, 2022, the state court held that probable cause supported each of the
charges in the indictment.
On June 5, 2022, the state court granted the motion to quash.
On April 1, 2024, Ms. Peters moved to dismiss the indictment, arguing she was
immune from prosecution under the Supremacy Clause in Article VI of the United
States Constitution. On May 7, 2024, the state court denied her motion.
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C. Federal Court Proceedings
Federal District Court
On November 14, 2023, Ms. Peters sued Mr. Rubinstein in his official capacity
under 42 U.S.C. § 1983 in the United States District Court for the District of
Colorado.2 She brought a First Amendment retaliation claim, alleging
Mr. Rubinstein’s investigation and prosecution were in retaliation for her public
criticism of the county’s voting system.3 She contended that when she learned a
technology upgrade would delete some data from the county’s voting records, she
acted to protect election integrity and to comply with federal election law’s record
management requirements. She sought declaratory and injunctive relief to prevent
Mr. Rubinstein from investigating and prosecuting her in state court.
On November 27, 2023, Ms. Peters moved the district court for a preliminary
injunction to stop Mr. Rubinstein “from conducting, continuing, or participating in
2 Ms. Peters also sued Jena Griswold in her official capacity as Colorado Secretary of State; Merrick Garland in his official capacity as Attorney General of the United States; and the United States of America. Those claims are not at issue in this appeal. 3 For a First Amendment retaliation claim where the government defendant is neither the plaintiff’s employer nor a party to a contract with the plaintiff, the plaintiff must show (1) “the plaintiff was engaged in constitutionally protected activity”; (2) “the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity”; and (3) “the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (quotations omitted). “The First Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment.” iMatter Utah v. Njord, 774 F.3d 1258, 1263 (10th Cir. 2014) (citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976)).
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any way in proceedings in [the state court case], or any other criminal proceedings
against or harassment of [Ms.] Peters.” Dist. Ct. Doc. 8 at 1; Joint App., Vol. I at 3.
On December 13, 2023, Mr. Rubinstein responded by moving to dismiss the
case, arguing for the district court to abstain under Younger from reaching the merits,
including the request for a preliminary injunction.
On January 8, 2024, the district court granted Mr. Rubinstein’s motion,
holding that abstention was appropriate and denying the preliminary injunction
motion as moot. It reasoned that Younger abstention was mandatory because state
proceedings were ongoing, implicated important state interests, and afforded
Ms. Peters an adequate opportunity to present her “constitutional challenges arising
under the First Amendment or the Privileges and Immunities Clause of the
Fourteenth Amendment.” Joint App., Vol. IV at 767; see also id. at 766-69. On the
adequate-opportunity issue, it said that Ms. Peters could raise her First Amendment
claim in the state proceedings and that she had not shown “she was prevented by the
[state court] from” doing so. Id. at 768.
The district court also found that Ms. Peters had failed to show
Mr. Rubinstein’s actions constituted “harassment or prosecutions undertaken by [a]
state official[] in bad faith without hope of obtaining a valid conviction”—an
exception to Younger abstention. Id. at 769 (quotations omitted); see also id. at 770.
It explained that the state court had made a “thorough and well-reasoned”
determination that probable cause supported the charges against Ms. Peters and that
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“[w]ithout more evidence,” she had not made even a prima facie showing that the
prosecution was in bad faith. Id. at 770-73.
The district court dismissed the claim against Mr. Rubinstein without
prejudice, certified its order under Federal Rule of Civil Procedure 54(b), and entered
judgment for Mr. Rubinstein.
U.S. Court of Appeals
On January 10, 2024, Ms. Peters appealed. We have jurisdiction under
Rule 54(b).4 See, e.g., Stockman’s Water Co., LLC v. Vaca Partners, L.P., 425 F.3d
1263, 1265 (10th Cir. 2005).
On January 19, 2024, Ms. Peters moved this court to enjoin the state court
proceeding pending appeal. On February 5, 2024, we denied the motion because
Ms. Peters had not carried her burden to show she met the standards for an injunction
pending appeal.
After Ms. Peters filed her opening brief in this court, she unsuccessfully
moved the state court to dismiss the indictment based on the same Supremacy Clause
immunity arguments she raised in her opening brief here.
4 After Ms. Peters filed her docketing statement, we noted that the district court did not make two express determinations required by Rule 54(b). We gave Ms. Peters time to file a proper Rule 54(b) certification, and she did. Doc. 11063320; Joint App., Vol. IV at 801-09.
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On May 24, 2024, Ms. Peters moved this court to expedite the appeal, urging
us to hear and decide her case before her criminal trial is scheduled to begin on
July 29, 2024. We deny the motion as moot.
II. DISCUSSION
Ms. Peters argues the district court (1) could not abstain because she is
immune from state prosecution and (2) improperly applied Younger. We disagree.
A. Immunity
Ms. Peters argues that her “efforts to comply with federal election law” made
her conduct “immune from state prosecution under the Supremacy Clause,” Aplt. Br.
at 25 (capitalization altered without notation), and thus “deprive[d] [the] state court
of subject-matter jurisdiction,” id. at 27. But Ms. Peters never presented this
argument to the district court.5 Appellants waive issues not raised before the district
court absent arguing the “rigorous plain-error test” on appeal. In re Syngenta AG
MIR 162 Corn Litig., 61 F.4th 1126, 1180 (10th Cir. 2023). Ms. Peters does not
argue plain error, so any Supremacy Clause immunity argument is “surely” at the
5 Ms. Peters argues she did present the issue to the district court by stating in her complaint that she was “immune from prosecution” under “the Privileges and Immunities Clause in the Fourteenth Amendment and the Supremacy Clause in Article VI of the United States Constitution.” Aplt. Br. at 30 (quoting Joint App., Vol. I at 44; Joint App., Vol. III at 725). But this passing mention was insufficient. We do not address arguments made before the district court in only a “perfunctory and underdeveloped manner,” including “[v]ague, arguable,” or “[f]leeting references.” In re Rumsey Land Co., 944 F.3d 1259, 1271 (10th Cir. 2019) (quotations omitted).
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“end of the road.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th
Cir. 2011).
Ms. Peters counters that waiver is inapplicable because her immunity claim
goes to the state court’s subject matter jurisdiction, Aplt. Reply Br. at 2, but she
misses the mark. A party cannot forfeit or waive an argument about this court’s
subject matter jurisdiction. See, e.g., Gad v. Kan. State Univ., 787 F.3d 1032, 1035
(10th Cir. 2015); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”); Sheldon v.
Golden Bell Retreat, No. 22-1428, 2023 WL 8539442, at *2 (10th Cir. Dec. 11, 2023)
(unpublished) (cited for persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1). This principle does not extend to Ms. Peters’s merits argument
that the federal district court or this court should issue a declaratory judgment and an
injunction because she is immune from state prosecution. See Big Horn Coal Co.
v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Lab., 55 F.3d 545, 551
(10th Cir. 1995) (holding that party may be held to waiver when it challenges a
merits determination, even if the party characterizes it as a subject matter jurisdiction
issue); Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir. 2006) (holding that
Supremacy Clause immunity arguments are waivable).6
6 Ms. Peters also contends that the Fourteenth Amendment’s Privileges and Immunities Clause provides a separate immunity claim, see Aplt. Br. at 24, or “reinforces” her Supremacy Clause immunity claim, Aplt. Reply Br. at 21. But she 8 Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 9
B. Abstention
Legal Background
“We review de novo the district court’s decision to abstain from exercising
jurisdiction under Younger.” Phelps v. Hamilton (“Phelps II”), 122 F.3d 885, 889
(10th Cir. 1997).
a. Younger abstention requirements
“In Younger, the Supreme Court held that federal courts, except in the most
exceptional circumstances, must dismiss suits for declaratory or injunctive relief
against pending state criminal proceedings.” Id. (citing Younger, 401 U.S.
at 43, 53-54). “Before a federal court abstains, it must determine that: (1) the state
proceedings are ongoing; (2) the state proceedings implicate important state interests;
and (3) the state proceedings afford an adequate opportunity to present the federal
waived those arguments by failing to raise them before the district court or in her opening brief. See In re Syngenta, 61 F.4th at 1180-81.
Further, it is not clear a federal court could properly adjudicate Ms. Peters’s immunity claims outside a request for a writ of habeas corpus or on motion to dismiss an indictment after the case has been removed to federal court under 28 U.S.C. § 1442(a)(1). See Willingham v. Morgan, 395 U.S. 402, 406-07 (1969) (noting that to take advantage of “the protection of a federal forum” and to have “the validity of the defense of official immunity tried in a federal court,” a federal officer should use 28 U.S.C. § 1442(a)(1)’s removal provision); Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) (describing habeas and removal provisions in the Supremacy Clause context as “alternative[s]”); Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2251 (2003) (“Supremacy Clause immunity does not displace state law in any categorical way. Rather, it merely limits the application of state law against a discrete, numerically limited set of potential defendants—federal officers.”). The parties fail to address this limitation.
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constitutional challenges.” Id. (citing Middlesex Cnty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 432 (1982)).
On the third requirement, “unless state law clearly bars the interposition of the
federal statutory and constitutional claims, a plaintiff typically has an adequate
opportunity to raise federal claims in state court.” Winn v. Cook, 945 F.3d 1253,
1258 (10th Cir. 2019) (quotations omitted). “Younger requires only the availability
of an adequate state-court forum, not a favorable result in the state forum.” Id.
“Once these three conditions are met, Younger abstention is non-discretionary
. . . .” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215
(10th Cir. 2003).
b. Younger exceptions
Courts have recognized exceptions to Younger abstention: the prosecution
“was (1) commenced in bad faith or to harass, (2) based on a flagrantly and patently
unconstitutional statute, or (3) related to any other such extraordinary circumstance
creating a threat of ‘irreparable injury’ both great and immediate.” Phelps v.
Hamilton (“Phelps I”), 59 F.3d 1058, 1064 (10th Cir. 1995) (quoting Younger,
401 U.S. at 53-54). “[T]he[se] exceptions to Younger only provide for a very narrow
gate for federal intervention” because of “respect[] [for] prosecutorial discretion and
federalism.” Id. Thus, the plaintiff bears a “heavy burden” to show an exception
applies. Phelps II, 122 F.3d at 889 (quotations omitted).
To determine whether a state commenced a prosecution in bad faith or to
harass, courts consider three factors:
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(1) whether it was frivolous or undertaken with no reasonably objective hope of success;
(2) whether it was . . . in retaliation for the defendant’s exercise of constitutional rights; and
(3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions.
Id. (paragraph structure added). The plaintiff must set forth “more than mere
allegations of bad faith or harassment” through “additional, supplemental evidence.”
Id. at 889-90. If the plaintiff can make this “initial showing of retaliatory animus, the
burden shifts back to the defendant to rebut the presumption of bad faith by offering
legitimate, articulable, objective reasons to justify the decision to initiate these
prosecutions.” Id. (quotations omitted).
Application
Ms. Peters argues (a) the third Younger factor is not met and (b) the bad faith
exception applies. We disagree.
a. Younger applies
The parties do not dispute that the first two Younger requirements are met—
there is an ongoing state criminal proceeding and state criminal proceedings
implicate important state interests. As explained below, the third requirement is also
met.7
7 To the extent Ms. Peters argues Younger applies but the state court’s actions constitute an “extraordinary circumstance[] that would render [the] state court unable to provide [her] a full and fair hearing on [her] federal claims,” Phelps II, 122 F.3d at 891, 11 Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 12
i. First Amendment claim
Ms. Peters argues in her opening brief that the state court “foreclosed
consideration of [her] constitutional claims” because it “concluded” in resolving a
motion to quash “that th[e] merits” of her constitutional claims “would not be
adjudicated.” Aplt. Br. at 38 (capitalization altered without notation). We infer she
means the state court would not consider her First Amendment retaliation claim. We
reject her argument.
Ms. Peters must show the state court proceedings could not “afford [her] an
adequate opportunity to present” her First Amendment claim. Phelps II, 122 F.3d
at 889. She has not.8 She has made no argument that “state law clearly bars” her
from raising her claims. Crown Point, 319 F.3d at 1215 (quotations omitted).
Rather, she asserts that the state court “made a ruling that precluded consideration of
[her] federal claims.” Aplt. Br. at 39. The record does not support her contention.
In the state court’s ruling on Mr. Rubinstein’s motion to quash, it determined
that he was not required to turn over computer equipment related to the county’s
election system. It held that “the issue of election equipment [wa]s collateral” and
the evidence was unnecessary for Ms. Peters’s argument that her “alleged crimes
we disagree for the same reasons discussed below. She has not pointed to authority or procedural history to show such an extraordinary circumstance. 8 Ms. Peters recently filed a Federal Rule of Appellate Procedure 28(j) letter calling our attention to National Rifle Ass’n v. Vullo, 144 S. Ct. 1316 (2024). Vullo does not show that she lacked an opportunity to present her First Amendment claim in state court.
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were necessary . . . to avoid an imminent public or private injury . . . of sufficient
gravity to outweigh the criminal conduct.” Joint App., Vol. III at 541 (quotations
omitted). The court said that any threat of injury was not imminent. Id. at 542.
Ms. Peters did not even mention the First Amendment in her briefing on the motion
to quash. See Joint App., Vol. IV at 810-34. The state court’s evidentiary ruling did
not, therefore, “conclude that th[e] merits” of her First Amendment claim “would not
be adjudicated in the prosecution” or that such a claim would be “out-of-bounds.”
Aplt. Br. at 40.
ii. Immunity claim
After she filed her opening brief in this court, Ms. Peters moved in state court
to dismiss the indictment for lack of jurisdiction based on the same Supremacy
Clause immunity arguments she presents here. The state court adjudicated her
arguments, rejected them on the merits, and denied Ms. Peters’s motion. In her
motion to expedite filed with this court, she now argues Younger abstention should
not apply because the state court “exceeded its authority to address questions of
federal law regarding whether she was” entitled to immunity. Doc. 11093062 at 5.
This new argument also fails. “Under normal circumstances, . . . state courts
. . . can and do decide questions of federal law . . . .” El Paso Nat. Gas Co. v.
Neztsosie, 526 U.S. 473, 485 n.7 (1999). None of the cases Ms. Peters cites supports
the proposition that the state court, which she asked to adjudicate her Supremacy
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Clause immunity argument, lacked jurisdiction to do so.9 “State courts have long
adjudicated . . . whether federal officers are entitled to Supremacy Clause
immunity[,] . . . [a]nd they have continued to do so after the codification of the
modern federal-officer removal statute . . . .” State v. Meadows, 88 F.4th 1331, 1343
(11th Cir. 2023) (citations omitted).
b. Bad faith exception
Ms. Peters argues the bad faith exception to Younger abstention applies.
Aplt. Br. at 34-38; Aplt. Reply Br. at 23-27. She fails to establish any of the three
bad faith factors.
i. Frivolousness
Ms. Peters has not shown the prosecution was “frivolous or undertaken with no
reasonably objective hope of success.” Phelps II, 122 F.3d at 889. She contends that
“[t]he plainly apparent deficiencies in each of the counts of the indictment
demonstrate . . . bad faith.” Aplt. Br. at 37. But as the district court noted, the state
court concluded that probable cause supported each of the charges against Ms. Peters,
9 The precedential cases Ms. Peters cites, Aplt. Br. at 25-30; Aplt. Reply Br. at 9-21; Doc. 11093062 at 5-6; Doc. 11095215 at 2, considered situations where federal officers removed cases from state to federal court or where state jurisdiction was at issue on habeas review. See Livingston, 443 F.3d at 1224 (explaining that a federal officer may remove a case from state to federal court under 28 U.S.C. § 1442); Tennessee v. Davis, 100 U.S. 257, 263-71 (1879) (upholding the constitutionality of a statute like 28 U.S.C. § 1442 allowing federal officers to remove proceedings from state to federal court); Cunningham v. Neagle, 135 U.S. 1 (1890) (considering state jurisdiction on habeas review); Ohio v. Thomas, 172 U.S. 276 (1899) (same). Another involved an appeal from state court to the Supreme Court. Johnson v. Maryland, 254 U.S. 51 (1920).
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which weighs against her. See Joint App., Vol. IV at 770 (district court opinion);
Joint App., Vol. III at 646-50 (probable cause review). She has not provided cases or
evidence showing the charges had “no reasonably objective hope of success.”
Phelps II, 122 F.3d at 889; see Phelps I, 59 F.3d at 1067 (noting that a prosecution
was not in bad faith where “the parties’ briefs suggest[ed] that the criminal . . .
prosecutions were based on probable cause”); Carrillo v. Wilson, No. 12-cv-03007,
2013 WL 1129428, at *5 (D. Colo. Mar. 18, 2013) (finding prosecution nonfrivolous
when state court determined charges were supported by probable cause); Wrenn v.
Pruitt, No. 5:21-cv-00059, 2021 WL 1845968, at *4 (W.D. Okla. May 7, 2021)
(same).
ii. Retaliation
Ms. Peters argues Mr. Rubinstein’s investigation and prosecution was
retaliation for her exercise of constitutional rights.10 Aplt. Br. at 36-37. She points
to several parts of the record, none of which “prove[s] that retaliation was a major
motivating factor and played a dominant role in the decision to prosecute.” Phelps I,
59 F.3d at 1066 (quotations omitted).
10 Ms. Peters argues that prosecutions may be retaliatory even if supported by probable cause. Aplt. Br. at 37 (citing Phelps I, 59 F.3d at 1064 n.12). This proposition may be in tension with the Supreme Court’s holding in Hartman v. Moore, 547 U.S. 250 (2006), that a plaintiff cannot state a claim of retaliatory prosecution in violation of the First Amendment if the charges were supported by probable cause. Id. at 265-66. But we need not resolve that issue here because even if we accept Ms. Peters’s contention, she has not met her burden to show retaliation.
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First, Ms. Peters says Mr. Rubinstein’s office “harassed her 93-year-old
mother” and “interjected . . . in a domestic matter involving [her] husband.” Aplt.
Reply Br. at 24.11 But she cites only her own declaration for this proposition, and
“conclusory and self-serving affidavits” are insufficient. Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991). She also contends that Mr. Rubinstein “participated
with the Federal Bureau of Investigation in securing and executing a search warrant
in an excessive manner.” Aplt. Reply Br. at 24. This contention is similarly
insufficient as based only on a “conclusory and self-serving affidavit[]” from her
political associate. Hall, 935 F.2d at 1111; see also Aplt. Reply Br. at 24.
Second, Ms. Peters argues she was prosecuted “for actions that she was
obligated to take.” Aplt. Reply Br. at 24. This may be a possible defense to the state
charges, but it has nothing to do with her theory of retaliation for voicing public
criticism. Also, “the critical inquiry is not whether [she] engaged in some protected
activity; rather, it is whether the prosecutor sought to limit [her] ability to conduct
constitutionally protected speech by these criminal prosecutions.” Phelps I, 59 F.3d
at 1068. Ms. Peters has not shown Mr. Rubinstein sought to do so.
Third, Ms. Peters argues Mr. Rubinstein failed to prosecute the Colorado
Secretary of State, who allegedly knew the technology upgrade would delete some
data from the county’s voting records. Aplt. Reply Br. at 24. Apart from failing to
11 Ms. Peters presents these arguments as support for why she thinks the prosecution was retaliatory, but the result would be the same if she argued they went to harassment.
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show that she and the Secretary of State were similarly situated, Ms. Peters provides
no basis to infer that Mr. Rubinstein’s exercise of prosecutorial discretion was
retaliatory. See Oyler v. Boles, 368 U.S. 448, 456 (1962) (holding that even where
individuals commit the same conduct, “the conscious exercise of some selectivity in
enforcement” is acceptable).
Fourth, Ms. Peters argues as suspect the time between when she “formally
petitioned the county Board to discontinue its contract to use a computerized voting
system” and the indictment. Aplt. Reply Br. at 24. The timing is not relevant here
because Ms. Peters admits that the state began investigating her before she formally
petitioned the Board. See, e.g., Joint App., Vol. III at 546-48.
Fifth, Ms. Peters argues Mr. Rubinstein advocated for her bond to be set much
higher than what the state court approved and opposed her request to travel for a film
screening. Aplt. Reply Br. at 24; see also Joint App., Vol. III at 549. She fails to
show these recommendations to the court fall outside the norms of state prosecution
or the needs of the case, let alone show a retaliatory motive. Even if they
demonstrate “a history of personal animosity between [Mr. Rubinstein] and
[Ms. Peters, this would] not, by itself, [be] sufficient to show that [the] prosecution
was commenced in bad faith.” Phelps I, 59 F.3d at 1067.
Sixth, Ms. Peters argues Mr. Rubinstein made a report to the Board of County
Commissioners with the sole “focus [of] punish[ing] Ms. Peters for uncovering the
deletion of election records.” Aplt. Reply Br. at 25. This statement is unsupported
and conclusory. Mr. Rubinstein’s report is insufficient to establish a retaliatory
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motive. See Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir.
2009) (“A plaintiff’s subjective beliefs about why the government took action,
without facts to back up those beliefs, are not sufficient” to establish retaliatory
motive.).
iii. Harassment
Ms. Peters also fails to show evidence of “harassment and an abuse of
prosecutorial discretion,” which is “typically [shown] through the unjustified and
oppressive use of multiple prosecutions.” Phelps II, 122 F.3d at 889. She argues that
multiple prosecutions are not required to show harassment. Aplt. Reply Br. at 26-27.
But she does not explain why this case otherwise constitutes “harassment and an
abuse of prosecutorial discretion.” Phelps II, 122 F.3d at 889.
III. CONCLUSION
Younger abstention was appropriate, and Ms. Peters has not met her heavy
burden to show the bad faith exception applies. We affirm. We deny Ms. Peters’s
motion to expedite as moot.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge