After the pardon: The constitutional question Colorado courts now face

By Jen Schumann | Rocky Mountain Voice

President Donald Trump’s pardon of Tina Peters did not end her case. It changed it.

What now sits before Colorado’s courts is no longer a question of guilt or innocence, nor even whether Peters should remain imprisoned while her appeal moves forward. The unresolved issue is more fundamental than that: whether the state still has authority to proceed in light of a federal pardon.

It is the question attorney Peter Ticktin says Colorado can no longer set aside.

Federal pardon issued by President Donald Trump for Tina Peters

A pardon that altered the legal landscape

Ticktin, who represents Peters, said in an interview with RMV that the federal pardon fundamentally changed the legal posture of the case.

“If the Colorado Court of Appeals is of the opinion that the pardon applies,” Ticktin said, “they no longer have jurisdiction… because there’s no longer any charges or convictions pending.”

Article II of the Constitution grants the president pardon authority

The argument does not ask a court to reweigh evidence or rule on the merits of Peters’ appeal. Ticktin argues the next step is not a merits fight. It’s a jurisdiction question. 

If the Court of Appeals finds it lacks jurisdiction, the case stops in Colorado.

“But if they think that the pardon is not in effect,” he said, “then… they can go on and hear the appeal.”

What the federal court declined to decide

Earlier this month, a federal magistrate judge dismissed Peters’ application for a writ of habeas corpus. The dismissal was not a ruling on the substance of her constitutional claims. It was procedural, grounded in Younger abstention, a doctrine that limits federal court involvement while state cases remain active.

Federal court order dismissing the habeas petition on procedural grounds

In its order, the court acknowledged that Peters raised constitutional claims, including a First Amendment challenge. The court declined to address the claims while Peters’ state appeal remains pending, dismissing the case without prejudice. 

“No, I think that this is a bad decision,” Ticktin said, referring to the court’s reliance on Younger abstention, as the court declined to decide the claims while the state process continues.

Ticktin said that response shaped the next step.

“This is one of the reasons we’ll be moving for resolution with declaratory relief rather than through a petition for writ of habeas corpus,” he said.

Procedure versus the Constitution

The federal court’s order illustrates a pattern that has defined Peters’ case. Courts addressing procedural posture have declined to engage the underlying constitutional questions, not because those questions have been resolved, but because of procedural limits.

Ticktin framed the issue this way: “The courts haven’t said these constitutional questions are wrong,” he said. “They’ve said they’re not going to decide them yet.”

That posture does not resolve disputes. It delays them.

In Peters’ case, the delay carries tangible consequences. Her appeal remains pending. The authority question raised by the pardon. Yet she remains imprisoned while courts determine who has the authority to decide whether her confinement is lawful.

“Tina Peters is in prison still pending appeal,” Ticktin said, “because of a violation of her First Amendment rights.”

A consistent argument, made publicly

Ticktin has not confined that argument to court filings.

Last week, he addressed an election integrity call hosted by Steve Stern, where he reiterated the same jurisdictional position he laid out in his interview.

“We have to put that to the court of appeals in Colorado to determine whether or not that court even has jurisdiction at this point,” Ticktin said during the call, “because it… lost its jurisdiction.”

The remarks did not introduce a new legal theory. They reinforced the same unresolved issue now before the state appellate court.

Why the Supreme Court comes into view

Ticktin said the appellate path forward is clear, even if the outcome is not.

“From the court of appeals,” he said, “we’ll be able to go to the Supreme Court of the United States.”

The Supreme Court exists, in part, to resolve conflicts over jurisdiction and constitutional authority when lower courts decline or disagree. Questions involving the scope of federal power, the limits of state authority, and the interaction between the two are typically addressed on appeal, after lower courts have acted or declined to act.

The Supreme Court exercises appellate jurisdiction over most constitutional cases

In Peters’ case, the question is narrow but consequential: whether a state court retains authority after a federal pardon has eliminated the underlying offenses, as Ticktin argues it has.

An unanswered authority question

Strip away the politics and the personalities that have surrounded Tina Peters for years and the case now rests on a single unresolved issue.

Does Colorado still have authority to proceed?

Until a court takes up that question, the case keeps moving without a decision on the merits and without resolution of the constitutional claims the federal court has already flagged.

Procedure has postponed judgment. The Constitution has not yet been addressed.

And that is the constitutional question Colorado courts now face.