UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TINA PETERS, 

 Plaintiff - Appellant, 

v. 

UNITED STATES OF AMERICA; 

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. 

No. 24-1013 

(D.C. No. 1:23-CV-03014-NYW-SKC) 

(D. Colo.) 

_________________________________ 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 21, 2024

Christopher M. Wolpert 

Clerk of Court

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_________________________________ 

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 

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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, 

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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 

Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 18