Amicus Curiae Brief — Nelson v. Colorado, 137 S. Ct. 30 (2016) (No. 15-1256)

No. 15-1256 _OPRICE OF THE CLERK |

In the

Supreme Court of the Anited States

il

SHANNON NELSON,

Petitioner,

v.

COLORADO,

Respondent.

+

On Writ of Certiorari to

the Supreme Court of Colorado

.

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

+>

M. REED HOPPER

Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: RHopper@pacificlegal.org

E-mail: EBlevins@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

QUESTION PRESENTED

Colorado, like many states, imposes various

monetary penalties when a person is convicted of a

crime. But Colorado appears to be the only state that

does not refund these penalties when a conviction is

reversed. Rather, Colorado requires defendants to

prove their innocence by clear and convincing evidence

to get their money back.

The Question Presented is whether this

requirement is consistent with due process.

QUESTION PRESENTED

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

fT

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY

I.

OF ARGUMENT

ARGUMENT

COLORADO MUST RETURN MONEY

PAYMENTS CONDITIONED ON A

WRONGFUL CONVICTION

A.

B.

Upon Exoneration, a State’s Refusal to

Refund Conviction-Related Expenses

Constitutes an Arbitrary Penalty ...

Money Exacted on the Premise of a

Wrongful Conviction Violates “Due

Process of Law” Because No “Law”

Supports the Exaction ............

COLORADO’S PURPORTED REFUND

PROCEDURE CANNOT SAVE THE

STATUTE

A.

Bb.

Mathews v. Eldridge Applies to This

Case Because Nelson’s Due Process

Claim Does Not Challenge a

Conviction or Defend Against

om Tati ds ore hae

An Interest in Traditional Property

Such as Money Deserves Heightened

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TABLE OF CONTENTS— Continued

Page

C. Under Mathews, the Government Has

No Legitimate Interest at Stake in

Retaining the Money Exacted from

Nelson as a Consequence of Her

Wrongful Conviction ................ 15

D. A Requirement That Exonerees Prove

Their Innocence to Get Back Their

Money Defies Basic Notions of Fair

IS hy cs Ss Ul so e'b eececcce 16

Iv

TABLE OF AUTHORITIES

Page

Cases

Arnett v. Kennedy, 416 U.S. 134 (1974) ......... 12

Bennis v. Michigan, 516 U.S. 442 (1996) ......... 4

Board of Regents v. Roth, 408 U.S. 564 (1972).... 11

Bowsher v. Synar, 478 U.S. 714 (1986) ......... 15

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ 5

‘offin v. United States, 156 U.S. 432 (1895) ..... 17

Collins v. City of Harker Heights,

meeuees See... ... als ecb eecksieks 10

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... 3

Estelle v. Williams, 425 U.S. 501 (1976) ........ 17

Fuentes v. Shevin, 407 U.S. 67 (1972) .... 13-15, 18

Goldberg v. Kelly, 397 U.S. 254 (1970) .......... 11

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ......... 8

Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002) ... 10

Hurtado v. California, 110 U.S. 516 (1884) ....... 6

Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1961) .............. 16

Krimstock v. Kelly, 464 F.3d 246

GE Fx 0 es Redeerestsbebanes 10-11

Lawton v. Steele, 152 U.S. 133 (1894) ........... A

Lynch v. Household Finance Corp.,

ae, ES. 3 ce + Sudob ek eawees twas 17

Vv

TABLE OF AUTHORITIES— Continued

Page

Mathews v. Eldridge,

eee re se Geek a aw 8, 11, 14, 16

Medina v. California, 505 U.S. 437 (1992)... .. 9-10

National Labor Relations Board v. Noel Canning,

oo By Ee ee 15

Palazzolo v. Rhode Island,

IY os os bw ren 6 3 Cab babe we 12

Patterson v. New York, 432 U.S. 197 (1977) ....... iS)

People v. Nelson, 362 P.3d 1070

I oe re a ce big cratecl whe 2,4, 15

Sackett v. EPA, U.S. _,

Se ee EE, a nium op su beacuse a eecahe 1

Schneider v. California Department of

Corrections, 151 F.3d 1194 (9th 1998) ........ 13

Seaboard Air Line R. Co. v. Seegers,

ee, Og re reg ok a a rag 3

Southwestern Telegraph & Telephone Co. v.

Danaher, 238 U.S. 482 (1915) ............... 3

Fee Ce, Be Ges B CEIED 6 3 x ooo oad cone ans 4

TXO Production Corp. v. Alliance Resources Corp.,

ee Os he cata lt ke re ats 3

U.S. Army Corps of Engineers v. Hawkes,

ee) er ee l

United States v. James Daniel Good Real

Property, 510 U.S. 43 (1993) ............. 10-11

Vl

TABLE OF AUTHORITIES—Continued

Page

Washington v. Glucksberg, 521 U.S. 702 (1997) .. 10

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449

NCC he NS ae he wr on ey oo ph G 13

Colorado Statutes

ee SA... 5 os cca pore cis leen 2

EE RT cin nee 5 ou 6 5 Be a ee ble eee 2

ee ee en A

of Ee eee Bea toe ee eh eee ee peers so 2

Miscellaneous

Corwin, Edward S., The “Higher Law” Background

of American Constitutional Law (1955) ........ 5

Gedicks, Frederick Mark, An Originalist Defense

of Substantive Due Process,

GS Beery bac. GOB GOUGR) .. ww cc ccc cece 6-7

Madison, James, Property, reprinted in James

Madison: Writings

(Joee Ni. Bemowe, o@. 1900) ... 2. ec ccsss 7, 15

Sandefur, Timothy, Jn Defense of Substantive Due

Process, or the Promise of Lawful Rule,

35 Harv. J.L. & Pub. Pol’y 283 (2012) ....... 6-7

Sandefur, Timothy, The Conscience of the

I oe ae a ke ow eth eee ae 5

The Philosophical Works of Francis Bacon

(John M. Robertson ed. 1905) ................ 7

1

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely respected as an experienced

nonprofit legal foundation.' Among other matters

affecting the public interest, PLF defends the

constitutional principles of due process of law and

property rights. PLF attorneys have participated as

lead counsel or counsel for amici in numerous cases

before this Court involving property rights and due

process. See, e.g., U.S. Army Corps of Engineers v.

Hawkes, __ U.S. __, 186 S. Ct. 1807 (2016); Sackett v.

EPA, U.S. _, 1828S. Ct. 1367 (2012).

PLF urges the Court to hold that exonerees are

entitled to an automatic refund of payments paid

pursuant to a conviction. After that conviction has

been invalidated, Colorado no longer has any right to

hold onto exonerees’ money. Refusing to refund the

money absent a showing of innocence inflicts an

onerous burden of proof that violates basic notions of

fairness rooted in due process of law.

INTRODUCTION AND

SUMMARY OF ARGUMENT

For exonerated individuals in Colorado to get a

refund of fees and fines exacted for a wrongful

conviction, they must prove by clear and convincing

' Pursuant to this Court’s Rule 37.3(a), all parties have consented

to the filing of this brief. And pursuant to Rule 37.6, PLF affirms

that no counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than PLF, its members, or its counsel made a

monetary contribution to the briefs preparation or submission.

2

evidence that they did not commit the crime for which

they were exonerated. See CRS §§ 13-65-101(1)(a),

102. Colorado reversed Shannon Nelson’s conviction

after determining on appeal that the trial court had

introduced improper expert testimony. JPeople v.

Nelson, 362 P.3d 1070, 1071 (Colo. 2015). On retrial,

a jury acquitted her. /d. Nelson had paid $702.10 for

restitution, victim and law enforcement funds, and

other administrative fees. Jd. These payments were

al! predicated on her conviction. See, e.g., CRS § 24-

4.1-119 (costs “levied on each criminal action resulting

in conviction”). She moved for a refund of this money

following her acquittal. Nelson, 362 P.3d at 1071. But

the state insists that—under Colorado’s Exoneration

Act—she must file a separate civil action and prove her

innocence before it will return her money. See Nelson

v. Colorado, No. 15-1256, Brief in Opposition 22

(Aug. 9, 2016).

Without a valid conviction, the state’s taking of

Nelson’s money has no basis in law. It is a deprivation

of property for no reason whatsoever. The Exoneration

Act nonetheless lays claim to her money unless she

proves her own innocence. This arbitrary deprivation

violates due process. Just as a state must release

exonerees from detention, the state must refund

exonerees the money paid because of a wrongful

conviction.

Even if Colorado can require some procedure to

obtain a refund, due process requires a fair and

reasonable one. Having to prove a negative—that one

did not commit a crime—is neither fair nor reasonable,

and in some cases, impossible. This requirement is

therefore unconstitutional under the Due Process

Clause of the Fourteenth Amendment.

3

ARGUMENT

I

COLORADO MUST RETURN MONEY

PAYMENTS CONDITIONED ON A

WRONGFUL CONVICTION

An exaction based on a wrongful conviction has

lost its sole legal predicate. Procedural barriers that

prevent an automatic refund following exoneration

therefore deprive the exoneree of property without due

process of law.

A. Upon Exoneration, a State’s

Refusal to Refund Conviction-

Related Expenses Constitutes an

Arbitrary Penalty

An exaction that does not alleviate a harm, punish

wrongdoing, or serve any other legitimate public

purpose is excessive as a matter of law. An excessive

exaction is “plainly arbitrary and oppressive as to be

nothing short of a taking of... property without due

process of law.” Southwestern Telegraph & Telephone

Co. v. Danaher, 238 U.S. 482, 491 (1915). Thus, due

process sets limits “beyond which penalties may not

go.” TXO Production Corp. v. Alliance Resources Corp.,

509 U.S. 443, 453-54 (1993) (quoting Seaboard Air Line

R. Co. vu. Seegers, 207 U.S. 73, 78 (1907)).

Proportionality—an “ancient and fundamental

principle of justice”—is one of these limits. /d. at 478

(Scalia, J., dissenting). A penalty or exaction must be

proportional to the wrong to be punished or the harm

to be alleviated. See id.; see also Dolan v. City of

Tigard, 512 U.S. 374, 391 (1994) (in the land-use

context, an exaction must be proportional “both in

nature and extent to the impact of the proposed

4

development”). And any exaction that serves no public

purpose at all is excessive as a matter of law. See

Bennis v. Michigan, 516 U.S. 442, 471 (1996) (Stevens,

J., dissenting) (For the blameless individual, “even a

modest penalty is out of all proportion to {that

individual’s] blameworthiness.”); see also Lawton v.

Steele, 152 U.S. 133, 137 (1894) (“To justify the state in

. interposing its authority in behalf of the public, it

must appear, first, that the interests of the public

. require such interference.”). Where there are no

grounds for the exaction, the proportional penalty is

zero and is necessarily excessive and arbitrary.

Here, Nelson’s payments to the state are premised

on alleviating the harms associated with her alleged

crime. Ms. Nelson’s payments went to victim

restitution, a general victim compensation fund, a

victims and witnesses assistance and law enforcement

fund, and various court costs. Nelson, 362 P.3d at

1071. All of these payments were premised on her

conviction. See CRS § 13-65-103(2)(e)(V). Once the

state determined she was wrongfully convicted, any

public purpose animating the exaction vanished.

Colorado had a duty at that point to return her money.

This situation is different from asset forfeiture.

Unlike Colorado’s Exoneration Act, the use of asset

forfeiture is at least attached to “the conviction of the

offender.” The Palmyra, 25 U.S. 1, 9 (1827). Although

such forfeitures can afflict innocent owners, this Court

holds they still serve a genuine public purpose when

connected to a conviction. In Bennis v. Michigan, this

Court upheld a law that did not offer an innocent

owner’s defense to a joint owner of a forfeited vehicle

where the other owner had committed the crime at

issue. 516 U.S. at 446. The Court reasoned that such

5

seizures served legitimate government interests even

as applied to the innocent joint owner. Jd. at 452.

forfeiture encouraged vigilance in preventing misuse

of property by others, and it offered a surer means of

addressing potential collusion between the property

owner and the criminal defendant. /d.

No such rationale can justify the exaction here

because no valid conviction exists with regard to

Ms. Nelson or anyone connected with her. By

retaining exonerees’ money without a showing of

innocence, the state imposes an arbitrary and

excessive penalty that violates due process.

B. Money Exacted on the Premise of a

Wrongful Conviction Violates “Due

Process of Law” Because No “Law”

Supports the Exaction

Ms. Nelson’s exoneration vacates the sole legal

basis for the fees and fines she was required to pay.

This deprives her of due process of law because no law

supports the state’s interest in her money.

Due process demands that a deprivation of

property may occur only in accordance with “law.” An

arbitrary government action with no rational principle

is not a law. Timothy Sandefur, The Conscience of the

Constitution 79-84 (2014). As constitutional historian

and scholar Edward Corwin put it, a government act

“may at times part company with ‘true law’ and

thereby lose its title to be considered a law at all.”

Edward 8S. Corwin, The “Higher Law” Background of

American Constitutional Law 11 (1955). Justice Chase

famously espoused this view in Calder v. Bull: “An

ACT of the Legislature (for | cannot call it a law)

contrary to the great first principles of the social

6

compact; cannot be considered a rightful exercise of

legislative authonty.” 3 U.S. (3 Dall.) 386, 388 (1798).

This Court has since affirmed this understanding of

“due process of law” as “something more than mere will

exerted as an act of power.” Hurtado v. California, 110

U.S. 516, 535-36 (1884). A deprivation of rights may

only occur through an act authorized by a legitimate

law, not an act of arbitrary will.

The founders shared this understanding of due

process of law. The people who drafted and ratified the

Fifth and Fourteenth Amendments were steeped in a

historical tradition that granted substantive meaning

to “law.” This tradition stemmed from influential

British interpretations of the Magna Carta’s “law of

the land” clause. See Timothy Sandefur, Jn Defense of

Substantive Due Process, or the Promise of Lawful

Rule, 35 Harv. J.L. & Pub. Pol’y 283, 287 (2012)

(hereinafter /n Defense|. Lord Edward Coke’s treatise,

The Institutes—which deeply influenced the founding

generation equated this “law of the land” language

with “due process of law.” /d. at 288; Frederick Mark

Gedicks, An Originalist Defense of Substantive Due

Process, 58 Emory L.J. 585, 607, 662 (2009). Coke

believed that “law of the land” or “due process of law”

meant that the sovereign could only deprive someone

of their rights through a law rooted in rationality.

Sandefur, Jn Defense, supra, at 288. He said the

Magna Carta forbade an irrational government act

because it lacked the foundation of genuine law. His

contemporary, Francis Bacon, made a_ similar

observation: “In Civil Society, either law or force

prevails. But there is a kind of force which pretends to

law, and a kind of law which savours of force rather

than equity.” Francis Bacon, Aphorism 1, reprinted in

7

The Philosophical Works of Francis Bacon 613

(John M. Robertson ed. 1905). The founding

generation—intimately familiar with “force which

pretends to law”’—-embraced this view. Gedicks, supra,

at 611-12, 618.

A government action that lacks a coherent

explanatory principle is arbitrary and violates Coke’s

rule of rationality. Sandefur, /n Defense, supra, at 292,

302, 328-29. If a government act does not serve a

legitimate end including fundamental notions of

justice—that act violates due process of law. As James

Madison wrote, in his essay on property: “(T]hat alone

is ajust government which impartially secures to every

man whatever is his own.” James Madison, Property,

reprinted in James Madison: Writings 515 (Jack N.

Rakove, ed. 1999). And the corollary: “[T]hat is not a

just government, nor is property secure under it, where

the property which a man has in his personal safety

and personal liberty, is violated by arbitrary seizures

of one class of citizens for the service of the rest.” /d.

An exaction that lacks any legally valid basis is

just such an arbitrary seizure. Once the original

predicate for the deprivation is no longer valid,

retaining the property violates due process. Absent a

conviction, only arbitrary whim supports the state’s

refusal to automatically refund Ms. Nelson’s money—

“an assertion of authority that rests on no basis other

than the fact that the authority has asserted it.”

Sandefur, /n Defense, supra, at 292. In this case, no

explanatory principle exists to satisfy Coke’s rule of

rationality. Nor does the procedure for obtaining a

refund make this less of an arbitrary deprivation.

Plunder is not absolved of its unlawful character by

offering back the stolen property if the owner can prove

8

they deserve it. The refusal to return property

rightfully belonging to the exoneree is merely “the kind

of force which pretends to law’-—an act of mere

political will with no root in the public good.

Il

COLORADO’S PURPORTED

REFUND PROCEDURE CANNOT

SAVE THE STATUTE

Kven if the state’s refusal to refund exonerees’

money is not a substantive violation of due process,

Colorado’s onerous procedure for exonerees to get a

refund still fails procedural due process.

The classic formulation of the procedural due

process test comes from Mathews v. Eldridge, 424 U.S.

319 (1976). That test looks to three factors:

1. The private interests at stake;

2. The government interests involved; and

3. The fairness and reliability of the current

procedure and the likely benefits of improved

procedural safeguards. Id. at 335.

The Mathews analysis involves a “judicious balancing”

of these factors. Hamdi v. Rumsfeld, 542 U.S. 507, 529

(2004).

A. Mathews v. Eldridge Applies to This

Case Because Nelson’s Due Process

Claim Does Not Challenge a

Conviction or Defend Against

an Indictment

The proper test for procedural due process

depends on whether the deprivation at issue occurs in

9

the context of a criminal proceeding. While Mathews

represents the general approach in the civil context, a

test laid out by Medina v. California, 505 U.S. 437

(1992), apples tocriminal proceedings. Here, however,

Mathews applies because this case does not involve a

challenge to an underlying conviction’ or

criminal charge.

Medina imposes a tougher test for the due process

claimant to satisfy. In Medina, a criminal defendant

argued that the government violated his due process

rights by requiring him to show by a preponderance of

the evidence that he was mentally incompetent to

stand trial. 505 U.S. at 442. The Court held that

Mathews does not apply to criminal cases because the

Constitution already provides enumerated guarantees

regarding criminal procedure. Jd. at 443. Because of

these explicit protections, expanding procedural rights

“under the open-ended rubric of the Due Process

Clause invited undue interference with both considered

legislative judgments and the careful balance the

Constitution strikes between liberty and order.” Jd.

Due process must allow space for state criminal

procedure to operate because “preventing and dealing

with crime is much more the business of the States

than it is of the federal government.” Jd. at 445

(quoting Patterson v. New York, 432 U.S. 197, 201

(1977)). The Court therefore relied on a test that

demanded more of a due process claimant in the

criminal law context than Mathews. The Medina test

requires a showing that the challenged procedure

violates a tenet of justice “so rooted in the traditions

and conscience of our people as to be ranked as

fundamental.” /d. This Court’s reluctance to recognize

fundamental but unenumerated rights in the

LO

substantive due process setting speaks to the difficulty

of satisfying Medina. See, e.g., Washington ov.

Glucksberg, 521 U.S. 702, 728 (1997) (rejecting the

right to die as a right under substantive due process);

see also Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992) (The doctrine of judicial self-restraint

requires us to exercise the utmost care whenever we

are asked to break new ground in this field.”).

The Medina test, however, does not apply to

matters ancillary to a criminal proceeding. For

instance, in Krimstock v. Kelly, the Second Circuit

declined to apply Medina to a challenge to a pretrial

seizure of a vehicle for evidence in building a criminal

case. 464 F.3d 246, 254 (2d Cir. 2006). Since the due

process challenge did not bear on an underlying

conviction or indictment, the Court applied Mathews.

Id.; see also Harvey v. Horan, 285 F.3d 298, 316 n.6

(4th Cir. 2002) (Wilkinson, J., concurring in denial of

request for rehearing en banc) (reasoning that Medina

should not apply to a post-trial due process challenge

regarding access to evidence because the claim was not

a challenge to an underlying conviction). Supreme

Court practice supports this approach. In United

States v. James Daniel Good Real Property, this Court

addressed— in the context of a drug-related

offense—-whether post-trial forfeiture of a house

without notice or hearing violated due process. 510

U.S. 43, 47 (1993). This Court applied Mathews, not

Medina. See id. at 53. This approach makes sense

because pre-trial and post-trial proceedings regarding

property do not enjoy the many enumerated

protections for criminal proceedings found in the Bill of

Rights, such as the right against self-incrimination.

Moreover, Medina’s stricter test applied only to the

1]

work of “preventing and dealing with crime.” Medina,

505 U.S. at 445. Due process disputes over property

that do not seek to overturn a conviction or dispute an

indictment do not relate to that goal.

This dispute resembles /ames Daniel Good Real

Property and Krimstock: a due process challenge that

does not bear on an underlying conviction. Like in

Krimstock, no conviction exists here. Indeed, the case

for Mathews is stronger here, since in Krimstock the

seizure occurred in an ongoing criminal investigation

aimed at an ultimate conviction. Here, the deprivation

does not even flirt with criminal charges or conviction.

Therefore, the Mathews due process test applies.

B. An Interest in Traditional

Property Such as Money Deserves

Heightened Protection

The first Mathews factor calls upon courts to

weigh the private interest at stake. An interest in

traditional property rights long-recognized at common

law—including money-—deserves heightened due

process protections as exemplified by this Court’s

treatment of government entitlements and other

property interests.

This Court’s landmark procedural due process

jurisprudence was built in the context of government

entitlements. .Goldberg v. Kelly involved’ the

termination of benefits under the federal program Aid

to Families with Dependent Children. 397 U.S. 254,

255-56 (1970). Board of Regents v. Roth involved

tenure rights at a public college. 408 U.S. 564, 566

(1972). Mathews v. Eldridge itself arose from a dispute

over social security disability benefits. 424 U.S. at

323. This case presents an opportunity for the Court to

12

affirm the greater process due where the property

interest inheres in common-law rights rather than a

government entitlement.

Unlike classic property interests such as income,

real estate, or chattels, a government entitlement

exists at the behest of the legislature. Courts have

recognized therefore that government enjoys more

control over the procedures involved in taking away

the entitlements it creates. The grant of government

entitlements is often “inextricably intertwined with the

limitations on the procedures which are employed” in

protecting that entitlement. Arnett v. Kennedy, 416

U.S. 134, 153 (1974). The substantive property right

granted by the state is “itself conditioned by the

procedural limitations which had accompanied the

grant of that interest.” /d. at 155. Thus, the due

process claimant in cases involving government

entitlements must often “take the bitter with the

sweet.” Jd. at 153-54. To some extent, what the state

gives, the state may take away.

Government has less leeway, however, in

controlling traditional! property interests, like land and

money. For example, in Palazzolo v. Rhode Island,

533 U.S. 606 (2001), the state argued that a purchaser

of property should not have a valid regulatory takings

claim if they bought the property with notice of the

pre-existing regulation. /d. at 611. It based this

conclusion on the notion that “[p]roperty rights are

created by the State.” Jd. at 626. The Court refused to

countenance this attempt to put a “Hobbesian stick

into the Lockean bundle” of traditional property. Jd. at

627. That Hobbesian stick is the right to redefine the

nature of traditional property in a manner that

restricts constitutional rights.

13

The Ninth Circuit drew a similar conclusion in

Schneider v. California Department of Corrections. 151

F.3d 1194 (9th 1998). There, the court addressed

whether the state could take interest earned on

inmates’ accounts. Jd. at 1195. The lower court had

found no property interest granted by statute. The

Ninth Circuit held that traditional property in one’s

earned money exists independently of legislative

decree. Id. at 1199 (citing Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980)).

The court then made a crucial distinction between

entitlements and traditional property: “States may,

under certain circumstances, confer ‘new property’

status on interests located outside the core of

constitutionally protected property, but they may not

encroach upon traditional ‘old property’ interests found

within the core.” Jd. at 1200-01. The state could not

control the inmates’ interest income—a type of “old”

property—to the same extent as government

entitlements.

This Court has employed a stricter procedural due

process approach to cases involving the “Lockean

bundle” of traditional property interests. For example,

in Fuentes v. Shevin, the court examined the

constitutionality of a replevin statute that allowed

private parties to have property seized without a

pre-deprivation hearing and only a minimal showing of

an ownership interest. 407 U.S. 67, 69-70 (1972). The

plaintiff in Fuentes had been deprived of kitchen

apphances and furniture through the _ replevin

procedure. Jd. The Court demanded a strict showing

from the state that the deprivation was “directly

necessary to secure an important governmental or

general public interest.” Jd. at 91.

14

That demanding language asks more of the

government than what seems typical in_ the

government entitlement cases. Indeed, the Mathews

Court said—in the context of government

entitlements—that the financial and administrative

burdens imposed on the government were weighty

interests that could suffice to override a claimant's due

process interest. Mathews, 424 U.S. at 348. The Court

considered such costs significant even though the

government could not quantify them: “We only need

say that experience with the constitutionalizing of

government procedures suggests that the ultimate cost

in terms of money and administrative burden would

not be insubstantial.” Jd. at 347. This forgiving

approach to evaluating the government interest in

entitlement cases pales compared to the strict

requirement in Fuentes that the government show

direct necessity to secure an important government

interest. Fuentes, 407 U.S. at 91. Where government

deprives someone of an interest in traditional property,

like money, the government must make a stronger

showing of its own interest as a counterbalance.

Exonerees deserve the robust protections afforded

traditional property under Fuentes. The weight of

Ms. Nelson’s private interest in her own money

demands a strong showing that the onerous procedural

burden placed on exonerees is directly necessary to

further an important government purpose. The

government cannot make such a showing here.

15

C. Under Mathews, the Government Has

No Legitimate Interest at Stake in

Retaining the Money Exacted from

Nelson as a Consequence of Her

Wrongful Conviction

The second Mathews factor—the government

interest involved—does not favor the state in this case.

The government cannot show that requiring exonerees

to prove their own innocence to retrieve their money is

directly necessary to further an important government

purpose, as required by Fuentes. The Supreme Court

of Colorado upheld the Exoneration Act’s procedure on

the grounds that the legislature enjoyed primacy in

controlling appropriations and the general budget.

Nelson, 362 P.3d at 1076-78. The court worried that

an equitable power in courts to draw money from the

general fund and refund exonerees would impinge on

core separation of powers principles. /d. But that

separation of powers concern does not meet the Fuentes

standard of government interest required to

counterbalance the strong private interest in

traditional property.

Separation of powers does not exist to protect

government prerogatives. Government structure

“exists not to look after the interests of the respective

branches, but to protect individual liberty.” National

Labor Relations Board v. Noel Canning, 134 8. Ct.

2550, 2594 (2014) (Scalia, J., concurring). As James

Madison observed, dividing the powers of government

is essential to protect freedom. Federalist No. 51. The

framers separated the departments of government and

gave them power to protect against encroachments by

one another in order to prevent the abuse of power.

Bowsher v. Synar, 478 U.S. 714, 722 (1986).

16

Colorado has no legitimate interest in protecting

the legislature’s domain at the expense of individual

liberty. The specific guarantee of an enumerated

constitutional right serves as the boundary of the

broader structural protection of liberty. Colorado

cannot exalt the legislature’s prerogative above

liberty’s precepts.

Nor will Colorado face any daunting financial or

administrative burdens by granting automatic refunds.

In the typical due process case, plaintiffs seek an

increase in procedural bells and whistles—hearings,

notice, oral testimony, cross-examination, etc. These

things can be costly. Here, though, exonerees want

less procedure. They simply want their money back.

The removal of red tape will not tax Colorado’s

financial or administrative resources. Nor is Colorado

likely to release such a deluge of exonerees needing

refunds as to have a material impact on the public fisc.

The respective balance of interests in this case tilt

sharply toward the exonerees who have already

suffered enough at the hands of the state.

D. A Requirement That Exonerees

Prove Their Innocence to Get Back

Their Money Defies Basic Notions of

Fair Play

Fairness is the watchword of due process. Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, 161 (1951) (Frankfurter, J., concurring). The

third Mathews factor thus considers “the fairness and

reliability of the existing . . . procedures, and the

probable value, if any, of additional procedural

safeguards.” Mathews, 424 U.S. at 321. The

Exoneration Act’s demand that exonerees prove their

own innocence by clear and convincing evidence to get

17

back their own money is neither fair nor reliable.

Exonerees deserve a presumption of innocence when it

comes to protecting both their liberty and

their property.

This Court is a steady champion of the

presumption of innocence. That presumption,

“although not articulated in the Constitution, is a basic

component of a fair trial under our system of criminal

justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976).

This “axiomatic and elementary” right ought to apply

to both liberty and property deprivations. Coffin v.

United States, 156 U.S. 482, 453 (1895). After all, the

due process requirement applies equally to “life,

liberty, or property.” This Court has said these rights

are inextricably intertwined: “|A] fundamental

interdependence exists between the personal right to

liberty and the personal right in property. Neither

could have meaning without the other.” Lynch v.

Household Finance Corp., 405 U.S. 538, 552 (1972). If

the presumption of innocence is indispensable to

protect life and liberty, then property deserves

nothing less.

The Exoneration Act’s abandonment of this basic

presumption undermines both the fairness and

reliability at the heart of due process. First, it

misplaces the burden of proof. The onus of proving

that a taking of property is justified should rest with

the one taking it. Moreover, innocent exonerees may

be unable to prove their innocence by clear and

convincing evidence. Even if no evidence exists that

they committed an offense, a mere inability to present

a high quantum of evidence could present an

insuperable barrier to retrieving their property. And

for many exonerees, the cost of pursuing a refund

18

through a civil action will exceed the refund’s value.

This onerous procedure does not comport with the

notions of fair play central to due process.

+

CONCLUSION

Due process “reflects the high value, embedded in

our constitutional and political history, that we place

on a person’s right to enjoy what is his, free of

governmental interference.” Fuentes, 407 U.S. at 81.

Colorado has no legal predicate for keeping exonerees’

money, paid pursuant to an invalid conviction.

Nevertheless, the state lays claim to their property

unless they can prove their own innocence. This

arbitrary demand serves no public interest. It imposes

a profound burden on exonerees who have already

suffered unjustly, and it does so where their interests

far exceed any interests of the state. This Court should

reverse.

DATED: November, 2016.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

K-mail: RHopper@pacificlegal.org

K-mail: EBlevins@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation