tv Nelson v. Colorado Oral Argument CSPAN February 17, 2017 1:58pm-2:59pm EST
argument on nelson v. colorado. the practice of not refunding court fees and other people convicted of crimes that are later reversed. a person he convicted of a crime that is later exonerated but file a separate civil suit to prove they are actually innocent of the underlying criminal charge by clear and convincing evidence. oral argument in the case is about an hour. a decision is expected by june. >> we will hear argument first this morning, nelson versus colorado. mr. banner? >> justice, may it please the court, when a judgment is reversed, a person who is paid money pursuant to judgement is entitled to get the money back. that's common sense and that has unsurprisingly been normal practice for centuries. as far as we can tell, colorado is the first state ever to adopt a rule to the contrary. in colorado now, when a judgment of conviction is reversed, the
state keeps the defendant's money unless the defendant files a separate civil action and can prove by clear and convincing evidence that she's actually innocent. >> what is the basis of the right, you said the person whose conviction is overturned has a right to get the money back? is it a constitutional right? what kind of right is it? >> it's a right under the common law of property. it's existed for centuries that it's always been case that a successful appellant gets her money back. in this case, the money was taken from shannon nelson and louis madden pursuant to criminal convictions. >> it has to be constitutional. if colorado says we don't want to follow the common law, this
is not the law here. if it's not constitutional, then what's the basis for your case? >> here, the colorado supreme court did not say that this money belongs to the state of colorado. rather, the colorado supreme court said the exoneration act is a good enough remedy for returning the money. you're absolutely right to say that the colorado supreme court said it's no wonder what process we used. if they had said that, you're right. then we would be having to say, making an argument that the constitution itself gives the money, gives the right to the money to nelson. >> make that argument. >> excuse me? >> make that argument. >> okay, if colorado supreme court had said that this money belongs to the state rather than to nelson and madden, that would be tantamount to charging people money for the privilege of trying them unlawfully. it was be the result of a trial
that's been reversed, conducted. >> the dissent here said something quite simple which was the only entitlement to the money was the conviction. >> correct. >> if the conviction has been voided, then what legal right does the state have to retain the money? >> we agree with that exactly. >> the colorado supreme court on the other hand said, when you pay the money, we were entitled to it. so there's a disconnect there. if they were entitled to it initially, we're still back to the operative question of, why are they, what is the constitutional right for you to get it back? >> the state was entitled to the money initially because of judgments of conviction in place. judgments of conviction that required the payment of the money. those judgments of conviction no longer exist. they were reversed on appeal.
shannon nelson was retried and acquitted of all charges. louis madden, the convictions reversed and the prosecutor declined to retry the case, so while it was the state's money while the convictions existed, once those judgments of conviction cease to exist, at that point, it's no longer the state's money. >> i thought your argument was this, but what you're saying now and a lot of your brief is much more complicated. but the simple argument, i thought, was this. this was your client's money. it's a certain amount of dollars, okay, it was taken away from them as a result of the trial that was flawed and therefore, they were deprived of that property without due process of law. i thought that was the argument, am i right or not? >> you're right. >> if that is the argument, there's two complications that i see in your briefing.
one is that concede that they could be denied restitution for equitable reasons. let's just take that. where else in the law of due process would something like that come up? >> the reason why we said that is that in several of this court's older cases, the court describes these refunds as equitable. now, in a garden variety criminal cases like this one, there would be no equitable considerations that would interfere with a refund of the money but it's possible to imagine other sorts of cases where it would. so, for example, the court has mentioned, as we say in the reply brief, this court mentioned an example in which an insurance case in which a refund, a full refund would provide overcompensation for some reason to the successful appellant and in such a case, the refund for equitable reasons would have to be scaled back.
in an ordinary criminal case like ours, there's nothing like that. those sorts of equitable considerations are very, very far from the case like this one. and you know, colorado -- >> if that's right and this is the base of argument, it's our money by virtue of state law and once the conviction disappears, why doesn't the state have to proactively return the money? in other words, why is it even required for the person to bring any kind of refund action against the state? >> no, the state does proactively have to refund the money. there is no requirement for the successful appellant to bring an action. rather, what the -- >> so your complaint is not the nature to the act or what you have to prove. you're saying as soon as the conviction is vacated, the state has to put the check in the mail. >> that may be a little too simple. in our view, it would be the
procedure followed in these cases where after shannon nelson's case, after she was acquitted, she filed a motion wac in the original trial court saying, look, i've been acquitted. please give me my money back. >> i'm asking, if your theory is right, why is that even necessary? if your theory is right, it seems, you know, you might file a motion because the state hasn't done what it's supposed to do but seems like the obligation on the state's part is to immediately put a check in the mail. >> that's right. so when that hadn't happened, we filed the motion in both cases. >> i was just going to say, i understood in responding to justice alito, the state had to give the money back because they acquired it as a result of the flawed prosecution. is that right? >> right. >> it's not true for some of the payments. there's a $30 docket fee. in other words, that's not something that depends upon whether the conviction is valid
or not in the normal case. >> all of these payments under colorado law are collected only from defendants convicted. including the docket. none of these fees, charges, et cetera, are the sorts of filing fees that are collected from any litigant, win or lose. there's nothing like that in this case. this is all money contingent upon the conviction of a defendant. >> the state took property away from you and when the conviction is reversed, they have to restore you to the position you were in before the prosecution. is this the restitution and all of these fees are small in comparison with the main thing that was taken away and that was liberty. so if your argument is correct, why didn't the state take away
your client's liberty without due process of law and wouldn't they need to be made whole in that respect? >> no. reason for that is while there's a long historical tradition of providing refunds of monetary payments upon the reversal of the conviction, there is no comparable tradition of providing compensation for periods of lost liberty. >> that's why colorado passed it. >> exactly. if there already was a tradition of providing compensation for lost liberty, there would be no need for statutes. >> if tradition like that can defeat the argument for compensation for a time wrongfully spent in prison, then can tradition defeat the argument that you make with respect to the fees and the restitution?
>> no, because the tradition is the normal practice for centuries has been to refund monetary payments that are contingent upon a judgment when the judgment. >> so the argument is tradition could do it if there were such a tradition. >> can we look at the tradition again? it seems for constitutional reasons, not state law reasons. that's the reason i'm somewhat confused. who cares about tradition unless the state says x and there's y, unless there's a constitution? >> that's right. so tradition comes in determining what process is due. courts always look to tradition. tradition is a factor in considering. >> getting back to the state law for a moment, are you saying if a state creates a right under state law, it cannot unduly complicate that right by flawed procedures? under our procedural due process jurisprudence.
>> i'd say it even more simply than that. i'd say when a state is holding on to property that belongs to its citizens, the state has an obligation to have a procedure that is adequate for returning the property. i mean, that's the error that we're complaining about. the colorado supreme court said it was the court that analyzed this as a procedural due process case. the court said the question is, is the exoneration act a good enough procedure for returning this money to nelson and madden? and the cases following that. and the colorado supreme court determined, yes, this is a good enough process for returning the money. >> your argument moved from the simple one i started out with that you're absolutely entitled to be made whole to the argument that they have to provide that we look to tradition and we have to see what sort of tradition is adequate.
so what would be an adequate procedure here? >> they have to be made whole. i don't think i'm saying anything different from you're saying. i am saying that what the due process clause requires is for colorado to provide a process adequate to make defendants whole when their convictions. >> what is that process, after the conviction is reversed? >> simply to refund the money. it's their money. colorado can't make defendants prove that they're actually innocent in order to get their own money back. >> let's take the act. >> yeah. >> what parts of the procedure of the act are you saying violate the process? >> the requirement of proving one's innocence in order to get one's own money back. that's the most obvious one. >> it would seem if the state had an equitable reason, it should prove it, not you.
>> exactly. as i've said, the state talks a lot in general terms about equitable principles but the state has yet to identify what equitable principle. >> do you think a requirement of a separate civil action com ports with due process? >> that's a harder question. so let's imagine a requirement that you have to file a separate civil action but all you have to prove is that your conviction was reversed. if it was something that ministerial, maybe, maybe that would satisfy due process. although even there, i suppose it would be hard to see what purposes would be served by such an action. >> you have to pay a filing fee and engage a lawyer and hundreds of dollars, not even a thousand in one case. >> that's right. >> so any, it seems to me, any requirement that you see, you get the money back. >> i agree. i agree. like i was saying, you have to be a streamline, some very streamline and easy sort of civil action but that would be pointless.
it would be hard to see what pump would be served by requiring such an action. i'm agreeing with you. what purpose would be served by that when you can just do what appellants have been doing for centuries? going back to trial court and saying, judgment reversed, please give us our money back. >> assume you apply the matthews framework. do you agree that the court got it right or even under matthews the court below got it wrong? >> the court got it terribly wrong. under matthews. the colorado supreme court's application was basically to say, due process requires some kind of a hearing. well, the exoneration act, it gives you some kind of a hearing. it's good enough. if you look at the matthews factors, they all point very, very strongly in favor of finding the exoneration act an inadequate remedy. first of all, this is the defendant's property.
not the state's property. second of all, this is a terrible procedure for returning property to successful appellants. the exoneration act was not intended to serve that purpose, but it doesn't serve that purpose at all. it's virtually ensures that successful appellants aren't going to get the money back when their convictions are reversed and finally, it's impossible to see what interests the state has in holding on to the money. shannon nelson was acquitted and louis madden, his conviction was reversed. there's no chance either of the defendants will be reprosecuted. this money will never belong to colorado. colorado has yet to explain what interest it has in preventing this money. >> if we're writing this opinion and we begin, tradition is very important here because? >> in the court's due process case, it's important. >> that's if we try to define
the substantive right. >> right. and in determining what processes do, so the fact that successful appellants have always gotten their money back, i mean, that is the tradition that we're invoking and it's important in due process cases because in determining what process is due and what's the law of the land, well, what better place to look than what the law of the land has always been? >> so that's a different analysis than the matthews analysis though. >> correct. you know, the thing about this case is that what colorado is doing here has never been done before. there's no precedent directly on point at a high level of
specificity. so we have to look to other lines of the court's due process precedent. that's what we've done. >> it seems mr. banner, you could be approaching this in two ways. one, you could be claiming a substantive due process, along the lines colorado said you were doing and then colorado said no. if you were suggesting that you had a substantive due process, right, then surely tradition would be important. >> that's right. >> but if you're looking at procedural due process, i would have thought that your argument is the simple one of, this is property under state law. it's my property. it's your client's property. and then we apply the matthews test to determine what kind of procedure is due. and to get that property back. and tradition wouldn't be any part of that. >> look at the matthews test, you're absolutely right. tradition not part of that but the matthews test is not the only way the court has looked at this general class of issues and as i said, because no state has ever done what colorado is
doing, we're trying to draw from various strands of due process precedent. one strand is the matthews test, but another strand is the cases like honda motor and so on is that if the state has taken the procedure that has traditionally been present or afforded, that's a pretty good sign that the state is violating due process. >> what did colorado do before the exoneration act? with respect to returning? >> just gave back the money like every other jurisdiction. that's right. and so the novelty here is that this case got to the colorado supreme court immediately after the exoneration act was enacted and the colorado supreme court said, oh, now, we have a statue that tells how money is supposed to be refunded to exonerate defendants. under state law, that must be now the exclusive remedy for
defendants to recover the money. but before the exoneration act, there was no statute governing this topic just like in many jurisdictions and just as a matter of routine practice, successful appellants got their money back. >> i don't understand the difference between the simple argument that you're allowed to be made whole and then the court could be made restitution. as this court has said, which is your argument? you automatically get it back, that's the end of it. no procedure is necessary or that you could be denied receiving the money back for equitable reasons. >> you automatically get it back unless there's some equitable reason that you shouldn't get it back but i'm trying to say in an
ordinary criminal case, there is no equitable reason why you shouldn't get it back and it's impossible almost to concede of an equitable reason. the reason why -- >> the state says that the defendant has the obligation to move for a stay of the judgment of restitution when the defendant takes an appeal and if the defendant doesn't do that, then the money is not refunded. >> that is impossible under state law for indigent defendants to seek a stay of monetary payments pending appeal. for two reasons. one is that you have to get a stay pending appeal, you have to post a bond in the full amount of the payment. that's way out of reach for any indigent defendant. we talked to experienced colorado defense lawyers who say they have never heard ever of any indigent defendant seeking a stay of monetary payments pending appeal. our clients, indigent defendants. they couldn't have done that.
second, by statute, stays appear to be unavailable when taken from the appellant's inmate accounts. which appears to be the case here. even if they had some sort of money outside their inmate accounts, excuse me, the money being taken, so that's a second reason why a stay would be unavailable. >> should we be differentiating between some jurisdictions that don't collect the money until the conviction is final and a conviction that's overturned on collateral review where the possibility of money having been collected may exist?
should there be a difference in how we think about those who situations? >> no, because whatever the reason for the disappearance of the judgment of conviction, the key thing is that these are the state's only right to this money is in the judgments of conviction. >> i have a problem because there are some cases in our jurisprudence, not in an english jurisprudence but certainly in american jurisprudence where the payment of restitution to a third party would have been good reason, equitable reason for the state not to return that money. what do we do? >> let me say a word about restitution. oi he he he restitution in the modern sense of restitution. to victims. restitution in colorado is, you can only have restitution pursuant to a criminal
conviction. without a criminal conviction, there can be no restitution. there's no separate proceeding. there's no separate proof apart from the amount of restitution. otherwise, it's just part of the sentence. >> what do states generally do if they've collected this money, paid it out to the victim and then the conviction is overturned? do they usually leave the money with the victim and just take it out of their general treasury or states try to take it back? >> that, i do not know and the thing is there are very few reported cases raising the issue of refunds of restitution after the reversal of a conviction and the reason must be that restitution, although restitution to victims, quite old in principle has been applied in significant amounts recently.
>> your argument is that if there's a substantial judgment of restitution and the money is paid to the the victims, let's say they're victims like the ones in this case so it's like therapy for abuse and even after the judgment has become final, if there is, if the defendant has given relief on collateral review, the state would have to compensate the defendant for all the money that was paid to the victims. that's your argument? >> i agree with all of that except the word compensate. the state would have to refund what it took from the defendant. the state and the victims, that's between the state and the victims. that's no bearing on the property rights or the due process rights of the defendant. bear in mind that all the money the state collects from convicted defendants, all of the money, the state is spending on something. the state isn't hiding that money under a mattress. even fines paid into a state's
general fund, the state is spending the money on something. so it's no excuse when you owe a debt to say, oh, jeez, i'm sorry, i already spent the money on something else. >> you don't have to make that argument to prevail in this case, do you? i think there's some severe equitable problems with the hypothetical of the state having paid the victim and the victim having spent the money. >> you misunderstood me. the state is saying, i'm not talking about the victim spend heing the money. i meant to say, the state saying we can't refund the money. i'm sorry, we can't, upon the reversal of a conviction, the state saying, we can't refund the money. sorry, we already dispersed it. the state disperses all the money. that doesn't set restitution apart from anything else. if i could reserve the balance of my time. >> thank you, mr. banner. general jagr?
>> thank you mr. chief justice and may it please the court. the dispositive question in this case is substantive, not procedural. the petitioners are not declining they need the substantive elements of the colorado exoneration act. >> the argument is that the act is an inappropriate procedure, that the procedure set up by the exoneration act where they have to prove themselves innocent. it's a procedure that does not comport with due process. >> justice ginsburg, if i understand, they shouldn't have to prove actual innocence at all. so those procedures because they are geared toward and focused on that inquiry shouldn't have to apply and what that means is that what petitioners are arguing is that they have a substantive right to automatic compensation without having to prove anything at all.
>> i think that's just mistaken, general. they're saying that they have a general state law property right in the money. now, do you disagree with that? do you think that this is their money? >> no, justice kagan. that is the nub of this dispute. >> whose money is it? >> the state's money as colorado supreme court held. >> why is it the state's money? >> as petitioners acknowledge during opening argument, it was properly taken pursuant to a conviction. and the colorado supreme court described this money as public funds. it never said -- >> but it's money that's conditioned on a valid conviction and when that valid conviction goes away, it seems the most natural obvious thing in the world to say that the state's right to that money evaporates at exactly the same moment.
why isn't that true? >> justice kagan, it's the same reason that upon reversal of a conviction, they can't be subject to that conviction any more. they have to be released from incarceration and can't be continued imposition. >> i'm not talking about due process. i'm just talking about whose money it is. under state law, state property law, whose money is it? they say it's their money because there's no longer a valid conviction. you say, notwithstanding, that the valid conviction has been reversed and it's the state's money. i want to know why. >> the reason why is that, well, first of all, the colorado supreme court described this as public funds and that's precisely how this court and other courts have treated this when they encountered the issue of sovereign immunity. for example, the united states versus gettinger, the court held that claims like these are not return of property type of claims. they are claims that can be subject to sovereign immunity.
and if that is true, it's not property of the criminal defendant after a lawful conviction has been entered. >> can you describe it to me in common sensical terms rather than a point of sovereign immunity case or something? just a common sense terms, why is this the state's money? >> it's the state's money just as the state lawfully incarcerated these defendants and petitioners don't dispute that, lawfully but erroneously took the liberty away in this case. that was lawful, same as the court or state lawfully took custody of or property in or excuse me, the criminal defendant's money. >> so do you have any obligation to return the money at all pursuant to any procedures? could you just say, once you pay the money, we have no procedure for you to get it back? in fact, we won't give it back to you ever? it's our money, we don't have to give it back. >> so long as the conviction
itself existed at the time that the money was taken, no, the state does not have the obligation just as it was required to pass the exoneration act in order to compensate criminal defendants who were erroneously but not wrongfully convicted. otherwise, they have to prove they meet constitutional tort. that they were wronged in some way. >> if you said the $128 for this or that, if you said everybody convicted owes the state $10,000 and you don't get it back if you're, if the conviction is later overturned? >> that is the rule this court adhered to and that is precisely the implication of courts that, when deciding these claims, look for wavers of sovereign immunity because the assumption is that the deprivation of the liberty
and property at the time of conviction is lawful and that the property passes into public funds. >> was mr. banner wrong then when he told us before the exoneration act, colorado like every other state, just gave the money back? >> that is incorrect, your honor. >> what did colorado do in respect to monetary sanctions? before the exoneration act. >> they didn't have authority to give it back. one example i can give and there aren't many is people versus noel. it's a colorado court of appeals case from 2005 where the court declined to order what they describe as a refund of amounts charged for probation even though that conviction was later overturned. the chief case they rely upon was tolan versus strol and the colorado case from 1961. court did order refunds of the fines but in that case, and as interpreted by the colorado supreme court in this case, there was specific wrongful conduct that violated the constitution on the part of the justice of the peace that
presided over that case. so as the colorado supreme court understands, that was wrongful conduct rather than an erroneous conviction that requires the status quo could be restored of that -- >> are you denying there were lower courts that would order the refund of the money? >> i am, justice sotomayor. >> i think in the briefing we are pointed to a number of situations in which lower courts did order the -- or automatically ordered money to go back. >> justice sotomayor, there are some courts who have done so. some courts who do not treat these claims but against the state for which a waiver. >> that's a question of labels to me. and if you have no conviction to justify the payment of money because it's been voided, why is it your money now?
just simply because you collected it beforehand even though the basis for the collection is wrong? how about if you took his car? >> well, that would be a forfeiture situation. >> why isn't this comparable? >> the forfeiture proceedings in some cases provide a useful analogy. if the district court orders forfeiture and someone with an ownership interest in that property does not properly appeal or seek a stay of the disposition of that forfeited property. >> let's go to the stay. can you honestly say to me that if the defendant had moved for stay, that the trial court would have granted one? how many cases do you think of the thousands of convictions that colorado goes through would a court order a stay? >> justice sotomayor, you're
correct. not many. the requirement is that there must be a serious question of substance and if that is the case, then the district court can order a stay. both execution of the judgment of incarceration. >> procedural quagmire you're throwing on courts below. the number of convictions are tiny. the number of proceedings you want now would stay motions to be determined by trial courts is hundreds. if not thousands. that's what you're advocating. >> i'm sorry, justice sotomayor? >> you want every trial court to determine whether a stay is appropriate? >> no. i'm just describing what current procedure describes in terms of stays. >> this question, suppose we have a criminal trial. the jury comes in with a verdict of guilty.
and then the trial judge says, judgment vacated. there was insufficient evidence to convict. in that case, the defendant would not throw any bees to the state. right? >> that's correct. >> but the judge said there was sufficient evidence. appeal. the court appeals then says there is insufficient efd so we vacate the conviction. in that case, all of that money is kept by the state? what's the difference whether the finding was made by the trial judge or by an appellate court? >> the difference is that at that time there was a lawful conviction in place and that is what's required. and that's why the question in this case is whether this is a return of property properly thought of as the criminal defendants or as compensation. just like in united states
versus gettinger. just like where the conviction overturned where the statute it was based was constitutionally vague. this court denied compensation because there was to waiver of sovereign immunity. >> we're not talking about compensation, we're talking about getting money back. >> justice ginsburg, that's the question. is this properly considered as a substantive matter, property of the criminal defendant or is it not? >> it says in page 27 of the brief, they had three cases. one going back to 1832 of this court that says the law is that when you reverse the judgment in a civil case, with criminal as well, the person on the other side gets the money back. and now, it doesn't say what law and more over, you heard your brother here said, well, colorado supreme court said that this wasn't a question here of whose property it was but a question of the remedy. property belonged to the criminal defendant.
what do you say about those cases? two, what did the colorado supreme court say as a matter of property law? >> yes, justice breyer. there are cases that say upon reversal of erroneous judgment there can be restitution. >> it doesn't say can. it says an obligation that the one who received the benefit of the erroneous judgment. to make restitution to the other party. it doesn't say may. >> respectfully, justice breyer, some courts use that. >> this court uses that. in 1832. >> the railroad case from 1935, united states v. morgan, court overturned from the district court and declined a refund because they had to reman for a hearing on the merits of the substantive dispute. one of petitioner's own sources --
>> i'm not interested in what did the -- did the colorado supreme court say this is his money but we don't have a remedy? did it say, this is our money and we don't have to have a remedy, what did it say? >> it said that these amounts are considered public funds such that a statute is required that courts may draw on public funds to award these amounts. and it's not under state law property of the criminal defendant. >> but that's a question -- you talk about compensation. the issue is restitution. and under normal equitable and still is the property of the person for whom the money has been taken away and i wonder if your analysis has to be adjusted when you appreciate that it's not compensation, it's not sort of the normal state give us some money. under equitable principles,
it's, state, give me my money back. >> justice, or mr. chief justice, that is the question, under the historical treatment of this issue, is this properly considered return of money? the courts do say restitution and also say that this is a claim of unjust enrichment that depends upon factors including the merits of the case. one of the bepetitioners own p- one of the bepetitioners own p- >> we go by what this court said in 1832. it seems like historical tradition. i suppose we take that unless you give me a reason not to, stating what the law is. that's what it says. so what's your response to that? >> my response to that, justice breyer, i don't think that's exactly what the law says. if the law says it, if petitioners establish a substantive due process right to this money back, we agree with them. colorado law doesn't vindicate that particular substantive interest.
>> the issue, i've never known us to wonder or call it a substantive due process right to own money. money is property. we all have a right to own our property, correct? >> yes, justice sotomayor. >> so i'm a little confused. they're saying, it's my money. whether i agree with that or don't, if it is their money, you need to do a procedure that comports with due process. you don't deny that. >> it's whether under state law this is properly considered. >> how about we borrow from double jeopardy? once the judgment is void, you no longer have a basis to that property, it's theirs. it was their money to begin with. the only basis you had to
collect it or keep it was the constitutional conviction. once it's voided, you have no basis to keep the money. >> justice sotomayor, that wouldn't necessarily explain cases like gettinger from 1927 when the court denied that kind of a remedy or ex parte morris where the court ordered that certain forfeited property be returned but the court said the court had no right to order the united states to refund. so that's the question is -- >> can i go back? sorry, i interrupted you midstream. that's, you said that's the question though something big was coming up. >> i think justice kagan probably said before. a claim of property versus claim of restitution. >> you said to justice sotomayor that we agree if this was their money, we would have to refund
it in normal ways consistent with due process. >> yes. >> okay. it depends on whether we think it's their money or your money. >> that's correct. >> if this were your money on the simple theory if there was once a conviction and valid, we collected money at that time and that makes it our money going forward forever and ever no matter what happens to the conviction. if that's your theory, it's not only true as the chief justice said that you wouldn't have to provide any remedy or process for getting that money back, you could just keep it and say, you can prove your innocence or not, too bad, it's our money. you agree with that. you said that to the chief. >> correct. >> and also correct if that conviction were improperly gained, not just in the sense it was later vacated by let's say it was the state's fault that the conviction occurred.
let's say there is a brady violation or something like that. it would still be your money. >> justice kagan, that neatly illustrates the decisions that states like colorado have to make. before the exoneration act, for example, criminal defendants whose convictions were overturned for error and actually innocent had no remedy except if they proved some sort of a wrong such as the one you're describing, then they could sue for a constitutional torte. a case from colorado had exactly that. sued for a brady violation and received millions of dollars in compensation. but what the state is not required to do is merely because the conviction is overturned, provide compensation for losses that occur attendant to a conviction that's overturned. >> does your analysis, why doesn't it apply to criminal fines? in other words, the fine for whatever the offense is,
$10,000, it's not money that they paid, fees along with the process. it's the end of the process. you're convicted. you pay a $10,000 fine. why don't you say, this is our money now, you can't get it back because of sovereign immunity? >> mr. chief justice, two points. these amounts here are not purely punitive. so that precise question isn't presented, but our line doesn't depend on the difference between punitive fines and payments such as these and neither. >> you say your line doesn't depend. does that mean you could apply this rule to fines? >> yes. >> do you? are fines in colorado unredeemable once you put them in the treasury? >> as we understand the colorado supreme court's decision, yes, just like in gettinger, that was a fine that the court did not
repay even though the conviction was invalidated for constitutional reasons and the reason the court didn't order the fine repaid was because of sovereign immunity. >> what happens then? i grant, you have a tough side of the argument. it doesn't seem very fair. but you have a corporate criminal defendant. you can't put him in jail. and they fine the corporation $15 million and then the state says, by the way, why appeal? if you win, we're not going to give you the money back. we'll have sovereign immunity. there's something wrong with that. i'm trying to put my finger on it. >> justice breyer, if there's something wrong with that, there was something wrong with the long cases decided previously. >> maybe they were right in 1832 and then they went off on a wrong track. maybe those cases were wrong. i don't know. i have to go read them and figure it out. but it can't be that there's no point to an appeal.
because we're not giving you back the fine. that, i stop right there and then i'm asking you, i don't know, i ask him. that's why his brief has several different arguments because it's hard to figure out but there's, okay. you want to say anything in response to this question? >> justice breyer, i understand what you're struggling with. we struggle with it as well, but the law in colorado supported in the 1800s and early 1900s suggested it's whether the state should provide this compensation and if the court rules this is a matter of substantive right under the constitution, i think you do encounter very significant problems about why compensation isn't awarded for the serious deprivation for liberty that occurs. >> why does it matter who owns this money at this time under
colorado law? this was the defendant's money and it was taken away from them. so at some point, it ceased to be their money and became the state's money. but then you have to show that it was taken away pursuant to due process. and consistent with due process. >> yes, and the due process is as petitioners admit it and to the colorado supreme court, they said that the deprivations of their liberty and property comported with due process because of a conviction supported the imposition of cost, fees and restitution. i believe mr. banan said it again today. that's the due process that led to the conviction. >> how can the conviction have been reversed? if they were convicted consistent with due process. >> your honor, there were errors in these trials but the question is whether there was process
sufficient to allow the conviction to attach and certainly, petitioners don't argue otherwise. if there were defects sufficient enough that it was a wrongful deprivation, for example, liberty like the joliet case encountered, there would be a claim for compensation due to a wrongful defect in the due process in the procedures that led to the deprivation. but the question here, there was no wrongful conduct that occurred. there was an error that occurred and the core precedence treated that as a claim for compensation. >> why isn't it a violation of the takings clause? >> for the same. >> not any property will be taken just for process of compensation. >> mr. chief justice, that's why the tax cases that petitioners site aren't here either. that's the precise issue here with no process given before the taking occurs. here, the criminal process
supported the conviction and that was an appropriate conviction at the time it was entered and again, if that were true, mr. chief justice, it wouldn't explain why there's no constitutional requirement to provide compensation for the deprivation of liberty that occurs. >> what are you going to do? i mean, you can't -- you can't give them back whatever time they've spent in jail. you just can't do it. but can you give them the money back. >> that's true but you can compensate them for it and certainly for a very long time the common law and other principles of jurisprudence have supported the notion you can either order restitution or some other compensation to account for a deprivation, such as a deprivation of liberty. so if the rule were that this is petitioner's property and it was -- it certainly was petitioner's liberty before it was properly or not wrongfully although erroneously taken it's unclear why petitioner's principle wouldn't apply to the same question.
>> one source of the difficulty we're having it seems to me is that the exoneration act was addressed to some -- a situation very different than what we have here. it was addressed to someone's wrongfully imprisoned for 20 years and the state felt some obligation to remedy that at least in the symbolic way, but in order to qualify for that you do need to show all these other things and is it completely settled i guess we had the decision from the colorado supreme court that that same act applies in this -- strikes me as a very different situation? >> mr. chief justice, i agree with you that the substantive right encompassed by the exoneration act is very narrow and it doesn't cover the claimed right in this case. and what the colorado supreme court told us is there is no statutory mechanism for the kind of compensation the petitioners
are seeking in this case. so i agree with you. the exoneration act is very narrow and it is not addressed to -- >> well, thanks for agreeing with me. i don't think that's what i said. >> okay. >> i guess what i said was by its -- as i understand the background at least the act was not addressed to the specific situation, it was addressed to a different situation and yet the court below has interpreted it far more broadly not narrowly to cover a very different situation. >> i don't -- mr. chief justice, i don't think that's necessarily a fair understanding of what the colorado supreme court was thinking of. what the colorado supreme court was thinking of where is the statutory authority to order this type of refund, the court hadn't really encountered this situation before and so it looked and it found only the exoneration act so what it concluded is that as a matter of substance compensation like the kind of compensation that petitioners are seeking in this case is available only on a claim of actual innocence. so i'm agreeing with you
because, yes, the statute is that narrow but the colorado supreme court determined that as a matter of law this is public property and there must be a proper claim for compensation against state funds and there wasn't one in this case. >> general you said a couple of times that if we were to look at this as this is not public property once the conviction is vacated then instead it once again becomes the criminal defendant's property, the acquitted defendant's property, if that were true what kind of procedure would you have to set up to return the property do you think?
>> justice kagan, i think it would be fairly minimal. i think it would involve perhaps a motion filed in the district court. i think the only burden that could perhaps be placed on a criminal defendant would be proving the amounts that were, in fact, taken from the defendant and then there could be for example, time limits put in place. but if this truly is petitioner's property they would have to be minimal requirements. >> which is what they did, they
made a motion? >> that's correct. so it would be similar to the route that they attempted to take but the courts below held that they did not have authority except in the case of madden for the fees. >> i thought you told me that it was not their property but even if it was, once it's in their treasury they can't get it back because of sovereign immunity. >> chief justice roberts -- excuse me, mr. chief justice, if this is their property, if they have a present entitlement to it, it is their property then due process requires them some procedure to get it back and that's the question. is this as a matter of substantive law their property or is it public funds as the colorado supreme court held and therefore there can only be a mechanism for compensation of the public funds for those losses. that is the key question in this case. >> if there are no further questions, thank you. >> thank you, mr. yarger. mr. banner, you have four minutes. >> just a couple of quick things. first of all, this i believe that this argument is the first time in this litigation that the state has come out and said this is -- this money belongs to the state. the colorado supreme court did not say that. >> it doesn't say the opposite
either. >> it doesn't say the opposite. >> so what do we do about that? >> what the colorado supreme court did was to skip over that question and proceed straight to the next logical question that would occur if it was the money was our property is the exoneration act and adequate procedure for returning it. >> that would be consistent with the monies their property but they have an obligation to give it back. >> not really. if it was -- if the money is the state's property, then it doesn't -- they don't have to provide and procedure to give it back. so the question that the colorado supreme court actually decided, the one thing -- the issue that -- the part of the decision that we're attacking is that this is an adequate procedure for the return of the property. >> okay. use the word return. i'm looking for something here that -- you see -- i'm looking for something here in the opinion that that i could just say, okay, see, they concede that it is this man's property, they conceded but i haven't found that sentence. >> unfortunately they don't explicit concede it, they assume it is what we would say. i know that's not helpful to you. the other quick point i want to make is i just want to explain very briefly why sovereign immunity has never been thought to be provide any bar to these
refunds and that is we're not asking for the right to bring a new lawsuit against the state. the state already brought these suits against us when it charged nelson and madden with crimes. we're not seeking a new judgment against the state we already have judgments in these cases, judgments in our favor. we won and yet the state is holding on to our money as if we lost. we're not seeking compensation. we're just seeking a refund of the money that we paid pursuant to judgments that no longer exist. >> as long as you have a minute, i mean. >> i'm not going anywhere. >> you like the bank of washington versus the united states, 1832 and it says the law, what law -- >> i believe the common law. i believe all those cases are about the common law, yeah. yeah, yeah. >> thank you, counsel. the case is submitted. the results are in for c-span's survey of presidential historians ranking every past u.s. president on ten leadership attributes. cross section of 91 historians ranksed the former leaders he. the top five presidents, abraham lincoln, george washington, franklin roosevelt, theodore
roosevelt and dwight eisenhower. you can see the full list at c-span.org. this sunday aeb richard norton smith, edna green medford and brinkley will talk about the survey. this is the third survey that c-span has done on the subject. the first one in 2000, next in 20009, and then this year. watch the discussion live as part of washington journal this sunday at 8 ob:00 eastern time.. watch the discussion live as part of washington journal this sunday at 8:00 eastern time. >> this weekend c-span city tour will explore the literary life and history of richmond, virginia. saturday at the okay eastern on book tv we will talk with douglas wilder author of so of virginia, the life in the political arena now a professor at common wealth university he was the first african-american to be elected governor of the common wealth. >> and i keep an ear to the ground. people are always, politicians,
always politicians hear what they want to hear. people hear what they have to hear. >> we will also visit the edgar allen poe museum. the museum houses the largest collection of mr. po's artifacts and memorabilia. >> if it wasn't for richmond po wouldn't have had a lot of his best work and had the chance it experiment in his early 20s and find his literary voice. >> on sunday at 2:00 p.m. eastern on american history tv explore richmond's history from the american revolution, the civil war and today. and then we will visit the home of maggie walker, heard in richmond's african-american at the turn of the sent prip she became the first female co eo after bank in the united states. >> mrs. walker's goal was to primarily help women of the organization and black women in the entire community. and that's what the strength of
the independent order of st. luke came to be. and from that platform, working st. luke, mrs. walker goes on, not just to have an effect in richmond, but towards civil rights and equal opportunities for black women across the united states. >> watch c-span cities tour on richmo richmond, virginia on c-span 2 on book tv. and on c-span 3. working with affiliates in visiting cities across the country. a look now at health care cost and implications of repealing the affordable care act. cato institute senior fellow peter van doren says managing costs should be a priority as well as private health care systems. this is about an hour.
>> good afternoon, everybody. i want to welcome you all here today. i'm peter russo, ademocratdirec personal affairs at thecato institute. this is a capitol hill briefing entitled economics of health insurance reform. the repeal and replacement of the affordable care act dominated discussions on the hill in recent weeks and lawmakers are huddling in philadelphia to recourse for the damage done to the health market in recent years. when they state they don't have a plan and i suppose i'm being cheritiable here but democrats say they don't have a political viable one. there is some truth to that as any comprehensive replacement