In the

Supreme Court of the United States

SHANNON NELSON AND LOUIS ALONZO MADDEN, PETITIONER

v.

COLORADO, RESPONDENT

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 in a separate civil proceeding to get their mon­ey back.

The Question Presented is whether this require­ment is consistent with due process.

BRIEF FOR PETITIONERS

CONSTITUTIONAL AND STATUTORY PRO­VISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution provides, in relevant part: "nor shall any State deprive any person of life, liberty, or prop­erty, without due process of law."

STATEMENT

Like many states, Colorado requires people con­victed of crimes to pay various monetary charges, including fines, court costs, fees, and restitution. But Colorado appears to be the only state that does not refund this money when a conviction is reversed. Colorado keeps the money. The only way a person can get his or her money back is to bring a separate civil action and prove, by clear and convincing evi­dence, that he or she is actually innocent of the charged offense.

Colorado's scheme is inconsistent with due pro­cess.

A. Legal Background

1. A party who has paid money pursuant to a judgment has always been entitled to a refund when the judgment is reversed. "A party against whom an errone­ous judgment or decree has been carried into effect is entitled, in the event of a reversal, to be restored by his adversary to that which he has lost thereby. The right to recover what one has lost by the enforcement of a judgment subsequently reversed is well established."

Until this case, Colorado followed the traditional rule: After reversing conviction, ordering "the parties be placed in status quo by refund to the defendant of the sums paid as fine and costs". A person who has paid money to another in compliance with a judg­ment which is reversed or set aside is entitled to res­titution.

In this case, however, the Colorado Supreme Court abrogated the traditional rule, by construing Colorado's Exoneration Act as the exclusive remedy for obtaining a refund of monetary payments when a conviction is reversed.

The Exoneration Act is entitled "Compensation for Certain Exonerated Persons." As its name suggests, the Exoneration Act was intended to provide com­pensation for certain convicted defendants who are later exonerated of their crimes. The immediate im­petus for the Exoneration Act was the case of Robert Dewey, who was convicted of murder in a Colorado state court and who served eighteen years of a life sentence before being exonerated of the crime by DNA evidence. '

The sponsors of the Exoneration Act believed that Colorado owed a moral responsibility to Mr. Dewey and to others who might follow in his footsteps. The Act's sponsors argued that Colorado should join the federal government, 27 other states, and the Dis­trict of Columbia by enacting legislation to compen­sate exonerated defendants like Mr. Dewey.

The legislation was supported equally by prosecu­tors and defense lawyers. The Colorado Attorney General's office supported it, as did the Colorado Criminal Defense Bar and the American Civil Liber­ties Union. No indi­vidual or entity spoke in opposition to the measure.

Throughout the legislative process, the Act's sup­porters emphasized how few defendants would be eligible for compensation. One of the bill's principal sponsors explained that the Act was not designed to compensate defendants who "get off on a technicali­ty." It was designed only for those who are "actually innocent." A repre­sentative of the Colorado Attorney General's office testified that the legislation was "narrowly defined" and that it would not apply to defendants who "are just acquitted after trial" or those "who have their convictions reversed after appeal based on a proce­dural or a legal error."

The General Assembly likewise assumed that the Exoneration Act would apply only in very rare cir­cumstances. The General Assembly projected that compensation under the Act would be awarded to on­ly one defendant every five years. The Attorney General of Colorado testified that recent experience suggested the Exoneration Act would provide compensation even less often than that. According to the Attorney General, among the 207 defendants whose convictions had been reversed between 2007 and 2012, "none of those people are likely to be in a position to prove actual innocence."

The House Judiciary Committee passed the legis­lation unanimously. The measure passed the full House by a vote of 60-2. The full Senate passed the bill unanimously. The Governor signed the legisla­tion into law on June 5, 2013.

2. The Exoneration Act is entitled "Compensation for Certain Exonerated Persons." The Act provides for compensation only to "a person who has been convicted of a felony," only when that person has been "sentenced to a term of incarceration ... and has served all or part of such sentence," and only "upon a finding that the person was actually inno­cent of the crime for which he or she was convicted."

To recover under the Exoneration Act, a defend­ant must file a civil action and prove, by clear and convincing evidence, that he or she is "actually inno­cent" of the crime. The Act specifies that the "court may not reach a finding of actual innocence pursuant to this section merely because the court finds the evidence legally insuffi­cient to support the petitioner's conviction." Nor may the court reach a finding of actual innocence merely "because the court re­versed or vacated the petitioner's conviction because of a legal error unrelated to the petitioner's actual innocence." Nor may the court reach a finding of actual innocence merely "on the basis of uncorroborated witness recantation alone." Rather, a finding of actual innocence must be based on the petitioner's presentation of "reliable evidence that he or she was factually innocent of any participation in the crime at issue."

Moreover, before a petition may be filed under the Exoneration Act, a defendant must make two addi­tional showings. First, a court must have vacated or reversed all convictions in the case based on either "reasons other than legal insufficiency of evidence" or "legal error unrelated to the petitioner's actual innocence. That is, if the ground for vacatur or reversal is insufficiency of evidence or some other error related to the defend­ant's actual innocence, the defendant is, paradoxical­ly, not eligible to file a petition under the Exonera­tion Act. Second, there must be no prospect of fur­ther prosecution. There must be either "an order of dismissal of all charges,"

When a petitioner can surmount these hurdles and can prove by clear and convincing evidence that he or she is actually innocent, the Act provides a monetary award of $70,000 for each year he or she was incarcerated, an additional $50,000 for each year he or she was incarcerated un­der a death sentence, and $25,000 for each year he or she served on parole, on probation, or as a registered sex offender after a pe­riod of incarceration The petitioner is also entitled to other benefits in certain circumstances, including tuition waivers at state col­leges, and compensation for child support payments.

Finally-and most importantly for this case­ where a petitioner can prove by clear and convincing evidence that he or she is actually innocent, the Ex­oneration Act entitles the petitioner to recover "the amount of any fine, penalty, court costs, or restitu­tion imposed upon and paid by the exonerated person as a result of his or her wrongful conviction."

There is no indication that the Colorado General Assembly, by including this last provision in the Ex­oneration Act, meant to abrogate the traditional rule requiring the refund of money paid pursuant to a judgment when that judgment is reversed. The pur­pose of the Exoneration Act was to create new rights for exonerated defendants, not to take traditional rights away from non-exonerated defendants. The legislature's goal was to bring Colorado law into alignment with the law of other states, not to set Colorado apart.

Nevertheless, as a result of this case, it is now vir­tually impossible for most defendants whose convic­tions are reversed to get refunds of fines, penalties, court costs, and restitution. That is because in this case the Colorado Supreme Court interpreted the statute to provide the exclusive remedy under state law for the refund of monetary payments upon the reversal of a conviction. Before this case, all criminal defendants were entitled to refunds when their convictions were reversed. Now, however, the only defendants entitled to such re­funds are those who can satisfy the stringent re­quirements of the Exoneration Act. To recover mone­tary payments after the reversal of a conviction, Col­orado defendants must now prove their actual inno­cence by clear and convincing evidence-the same heavy burden imposed on a defendant seeking the $70,000 per year compensation for his or her period of wrongful incarceration.

This burden is impossible for the vast majority of defendants to satisfy, for several reasons. First, most convictions are reversed because of legal errors, not because the defendant has proven her innocence. The Exoneration Act explicitly provides that reversal on legal grounds is not sufficient to constitute a find­ing of actual innocence. The Act also explicitly bars a finding of actual innocence merely because a conviction has been reversed for legally insufficient evidence, so even defendants the state cannot prove guilty are left unable to recover monetary payments after re­versal. Even defendants who are acquitted after a reversal cannot recover, because the Act requires de­fendants to prove their innocence by clear and con­vincing evidence. It is not enough for a defendant to show that she is not guilty beyond a reasonable doubt.

Second, the Exoneration Act is not available to many defendants. To recover under the Act, a de­fendant must have been "convicted of a felony," the defendant must have been "sentenced to a term of incarceration," and the defendant must have "served all or part of such sentence." This provision bars many defendants from recover­ing monetary payments upon the reversal of a con­viction, including defendants convicted of misde­meanors, defendants convicted of felonies who did not receive a sentence of incarceration, and defend­ants who did receive a prison sentence but who were out on bail pending appeal. Monetary payments made pursuant to convictions in such cases, includ­ing "any fine, penalty, court costs, or restitution", can never be recovered by the de­fendant, even when her conviction is reversed.

Third, even where a defendant can get past these obstacles, the Exoneration Act is a practical barrier to recovery for defendants who merely seek a refund, because the sums involved are typically too small to justify the expense of filing a separate civil action. The only plaintiffs who can realistically be expected to file suit under the Act are people seeking tort-like damages for wrongful incarceration, because such damages can be as large as $120,000 per year. No rational person would file suit under the Exonera­tion Act to recover a few hundred dollars of court costs, and no rational lawyer would take such a case. Although the Exoneration Act provides "reasonable attorney fees for bringing a claim under this sec­tion," the Colorado courts have not had any opportunity to consider what would be a reasonable fee for bringing a suit to re­cover such a small amount, because it appears that no lawyer has ever been foolhardy enough to file one.

The Exoneration Act applies to virtually all mone­tary payments made "as a result of' a conviction. The Act applies to "any fine," so a defendant whose sentence included a fine cannot recover that fine when her conviction is re­versed, unless she can prove her innocence by clear and convincing evidence. The Act applies to "any ... penalty," id., so a defendant whose sentence included penalties other than fines (such as forfeitures and the wide array of surcharges Colorado imposes on convicted defendants) cannot recover those penalties when her conviction is reversed, unless she can prove her innocence by clear and convincing evi­dence. The Act applies to "court costs," so a de­fendant whose conviction entailed the payment of one of the many costs Colorado charges to convicted defendants cannot recover those costs when her con­viction is reversed, unless she can prove her inno­cence by clear and convincing evidence. Finally, the Act applies to "restitution," so a defendant whose sentence included the payment of restitution cannot recover that payment when her conviction is re­versed, unless she can prove her innocence by clear and convincing evidence. No matter what a payment is called, Colorado keeps that payment despite the reversal of a conviction, except in the very rare case in which a defendant can prove by clear and convinc­ing evidence that she is actually innocent.

Indeed, in the three years since the Exoneration Act went into effect, we are unaware of any cases in which a defendant has sought the refund of mone­tary payments under the Exoneration Act upon the reversal of a conviction. The Colorado General As­sembly and the Colorado Attorney General were cor­rect when they predicted that the Act would afford a remedy to few, if any, defendants whose convictions are reversed.

By construing the Exoneration Act as the exclu­sive remedy for the refund of monetary payments upon the reversal of a conviction, the Colorado Su­preme Court has denied the overwhelming majority of criminal defendants in Colorado any opportunity to recover such payments when their convictions are reversed.

B.  Facts and Opinions Below

1. This case consolidates two cases raising the same issue that were decided on the same day by the Colorado Supreme Court.

a. Petitioner Shannon Nelson was convicted in 2006 of sexual assault offenses she allegedly commit­ted against her children. In addition to a prison term, Nelson's sentence included several monetary charges that state law imposes only on de­fendants who are convicted. These were: (1) a $125 "cost" designated for Colorado's Crime Victim Com­pensation Fund:" (2) a $162.50 "surcharge" designat­ed for Colorado's Victims and Witnesses Assistance and Law Enforcement Fund;" (3) a "docket fee" of $35; (4) a "time payment fee" of $25; and (5) resti­tution amounting to $7,845, for a total of $8,192.50. While these charges have a variety of names, they are all levied only pursuant to a crimi­nal conviction. Defendants who are not convicted do not have to pay.

Nelson's convictions were reversed on appeal. On retrial, she was acquitted of all charges. The Colorado Department of Correc­tions had already taken $702.10 from her inmate ac­count in partial payment of the amount she no long­er owed to the state-$125 for the Crime Victim Compensation Fund, $162.50 for the Victims and Witnesses Assistance and Law Enforcement Fund, and $414.60 for restitution.

Soon after her acquittal, Nelson filed a motion seeking the refund of this money. She argued that the failure to return the money would constitute a denial of due process under the federal Constitution. The trial court concluded that it lacked the authority to order the state to re­fund the $702.10 it had taken from Nelson.

b. Petitioner Louis Alonzo Madden was convicted in 2005 of attempting to patronize a prostituted child and attempted sexual assault. In ad­dition to a prison term, Madden's sentence included: (1) the $125 cost designated for Colorado's Crime Victim Compensation Fund; (2) the $125 surcharge designated for the Victims and Witnesses Assistance and Law Enforcement Fund; (3) the $30 docket fee; (4) the $25 time payment fee; (5) a $2,000 sex of­fender "surcharge";" (6) a $128 fee for genetic testing of sex offenders; (7) a $1,000 special advocate "surcharge";' (8) a $45 fee for a "substance abuse as­sessment; (9) a $25 fee for drug testing; and (10) $910 in restitution, for a total of $4,413. These charges, like the ones imposed on Nelson, are levied only on defendants who are convicted.

On direct appeal, Madden's conviction for at­tempted patronizing was reversed, leaving only his conviction for attempted assault. That conviction was vacated on state collateral review. The prosecutor chose not to retry the case. Madden had already paid the state $1,220 in fees and $757.75 in restitution he no longer owed, for a total of $1,977.75.

Madden moved for a refund of these payments. He alleged that the failure to return the money would constitute a denial of due process under the Four­teenth Amendment. The trial court granted Madden's motion with respect to the $1,220 in fees, but denied the motion with respect to the $757.75 in restitution..

2. The Colorado Court of Appeals reversed in both cases. The Court of Appeals de­termined that state law required refunding all the money that Nelson and Madden had paid.

In Nelson's case, the Court of Appeals reasoned that both fees and restitution "must be tied to a valid conviction." Because Nelson's convictions had been overturned, the court concluded, she was entitled to recover the amounts she had paid. The Court of Appeals further con­cluded that Nelson could seek a refund in her pend­ing criminal case without having to file a separate civil action. The Court of Appeals noted that because it had ruled in Nelson's favor based on state law, it had no need to address her federal constitutional arguments.

The same panel of the Court of Appeals decided Madden's case on the same day. In a shorter opinion, the court applied the principles it had just elucidated in Nelson's case to conclude that Madden was also entitled to a refund of the amounts he had paid, and that he did not have to file a sepa­rate civil action.

3. The Colorado Supreme Court reversed in both cases.  In Nelson's case, the court held that under state law, Colorado's Exoneration Act, provides the exclusive remedy for people who seek refunds of monetary payments when their convictions are reversed. The court explained that the judiciary could au­thorize refunds from public funds only pursuant to statutory authority, and that the Ex­oneration Act is the only statute addressing the cir­cumstances under which courts may authorize such refunds. Under the Exoneration Act, the court observed, an exonerated person is entitled to a refund of fines, penalties, and restitution, along with other compensation, if she can "prove, by clear and convincing evidence, that she was 'actually innocent.'" Because Nelson had not filed suit under the Exoneration Act, the court concluded that the trial court lacked the au­thority to order a refund.

The Colorado Supreme Court then turned to Nel­son's contention that due process requires a refund. The court rejected this contention as well. "We hold that due process does not require a refund of costs, fees, and restitution when a defend­ant's conviction is reversed and she is subsequently acquitted," the court concluded. "The Exoneration Act provides sufficient process for de­fendants to seek refunds of costs, fees, and restitu­tion that they paid in connection with their convic­tion."

Due Process Clause.

b. The Colorado Supreme Court decided Madden's case on the same day. In a shorter opinion, the court applied the principles it had just expounded in Nelson's case. The court again ex­plained that under state law the Exoneration Act is the exclusive means of obtaining a refund of fees and restitution when a conviction is vacated, and that because Madden had not filed suit under the Exon­eration Act, the trial court lacked the authority to grant a refund..

The Colorado Supreme Court denied rehearing in both cases

SUMMARY OF ARGUMENT

Colorado's scheme is contrary to due process, for several reasons.

First, Colorado improperly places the burden of proof on the defendant, who must prove her inno­cence to avoid criminal penalties. This flouts the most basic requirement of due process in criminal cases. In order to impose a criminal penalty, the state must prove each element of the crime beyond a reasonable doubt. Colorado has taken money from Nelson and Madden, but neither stands convicted of any crime. The Due Process Clause places the bur­den of proof on Colorado if it wishes to keep their money, not on Nelson and Madden to get it back.

Second, Colorado's scheme fails the three-part test of Mathews v. Eldridge, which requires consideration of (1) the private interest af­fected by the official action, (2) the risk of an errone­ous deprivation of that interest, and (3) the govern­ment's interest. All three factors indicate that Colorado's scheme is inconsistent with due process. Peo­ple whose convictions are reversed have an undenia­ble property interest in obtaining a refund of fines, penalties, costs, and restitution. Colorado's scheme erroneously deprives them of their property in virtu­ally all cases. Colorado has no legitimate interest in keeping this money, because there is no chance that Nelson or Madden will ever be re-prosecuted.

Third, Colorado denies a clear and certain remedy for recovering money the state has wrongfully with­held. The Court has repeatedly held that when a tax has been unlawfully collected, due process requires the state to provide a meaningful opportunity for taxpayers to secure refunds. The same principle ap­plies here. A state cannot require monetary pay­ments for criminal convictions and then, when the convictions are found unlawful, refuse to provide a meaningful procedure for defendants to secure re­funds.

Fourth, Colorado's scheme is contrary to tradi­tional practice. When a judgment is reversed, a per­son who paid money pursuant to that judgment has always been entitled to a refund. In this case, the Colorado Supreme Court abrogated the traditional rule by construing the Exoneration Act as the exclu­sive remedy for obtaining a refund of monetary pay­ments when a conviction is reversed.

Fifth, there appears to be no other jurisdiction with a scheme like Colorado's. Everywhere else, de­fendants get their money back as a matter of course when their convictions are reversed.

Finally, it does not matter what these payments are called. When a payment is made pursuant to a conviction, the payment must be refunded when the conviction is reversed, whether the payment is called a "penalty," a "fine," a "fee," a "surcharge," "restitu­tion," or anything else. Due process does not depend on mere labels.

CONCLUSION

The judgments of the Colorado Supreme Court should be reversed.