Colorado’s second-highest court last week overturned the contempt conviction and $1,500 fine for former Mesa County clerk Tina Peters, concluding a trial judge did not make all the necessary findings that Peters had willfully disobeyed a court order.

Peters is currently serving a nine-year sentence after a jury found her guilty this year of attempting to influence a public servant, official misconduct and related offenses stemming from a security breach of her office’s elections equipment in 2021.

In the separate contempt proceeding, Peters had attended a February 2022 hearing in the criminal case of her deputy clerk, Belinda Knisley, when employees of the district attorney’s office allegedly saw Peters recording on her iPad. 

“Were you recording, ma’am?” District Court Judge Matthew D. Barrett asked Peters after the prosecution brought it to his attention. Peters denied the accusation.

After issuing a warning that no one may record the proceedings, Barrett continued with the rest of the hearing. He did not find that Peters had been recording, only commenting that there was a “decorum order” and “a sign on the outside of the door” saying no recording was allowed.

Later that month, District Attorney Daniel P. Rubinstein sought to hold Peters in contempt.

“Tina Peters was not truthful in her answers to the court about whether she was recording the proceedings,” Rubinstein alleged. “The conduct of Ms. Peters in being dishonest with the court is offensive to the authority and dignity to the court.”

At a brief trial before Paul R. Dunkelman, a retired district judge assigned to the case, witnesses testified to seeing Peters holding her iPad as if recording, and some overheard her making comments suggesting she had done so.

Dunkelman found the witnesses credible and held Peters in contempt.

“She was recording a proceeding. She was doing so covertly. She hid the fact when called out on it by Judge Barrett — certainly an indication to this court that Ms. Peters was aware it was not acceptable, if not a violation of a court order,” he said.

Peters appealed Dunkelman’s decision. The district attorney’s office maintained there was a valid court order prohibiting recording and that Peters knew about it.

“Was there a finding that Ms. Peters was aware, had knowledge, of that order?” asked Judge Christina F. Gomez during oral arguments this month before a three-judge panel of the Court of Appeals.

Deputy District Attorney Richard Tuttle responded that the circumstantial evidence, including how Peters behaved after Barrett called her out, suggested she knew.

But that was not good enough, the panel concluded.

“Peters is correct that the contempt judgment lacks several required findings, without which it cannot stand,” wrote Judge Stephanie Dunn in the Dec. 19 opinion.

Dunn explained that Dunkelman had not identified which court order Peters allegedly violated — either the sign on the door or the “decorum order.” Neither document was evidence at the trial, Dunn added.

“Second, even if we assume the prosecution presented some evidence that (Barrett) entered a decorum order that prohibited recording the proceedings, the district court didn’t find that Peters had actual knowledge of the order,” she continued. A “general awareness that certain conduct isn’t ‘acceptable’ isn’t enough to support a punitive contempt finding.”

Finally, Dunkelman had not found Peters willfully violated an order, which is also a component of contempt.

The panel overturned the contempt finding and the associated $1,500 fine.

The case is People v. Peters.