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Last Week's Decision in Nelson v. Colorado
Michael Ramsey

At Volokh Conspiracy, David Post on last week's Supreme Court decision in Nelson v. Colorado: Whose money is it?: Clarence Thomas and the due process clause.  As Professor Post explains:

Here’s the background, for those unfamiliar with the case: Colorado imposes court costs and various other fees on anyone convicted of a crime; those whose convictions are subsequently overturned can obtain a refund of those fees, but only through a special proceeding at which they have the burden of showing, by clear and convincing evidence, that they were innocent of the crime(s) with which they were charged.

The court held that this was a violation of the 14th Amendment’s due process clause — i.e., that this procedure deprives these individuals of property without due process of law. Why? Because it is their money; the state’s claim to the funds was based “sole[ly] on the fact of their criminal convictions,” and once the convictions are voided, Colorado has “no legal right to exact and retain petitioners’ funds.”

I entirely agree, as I wrote at the time the case was argued: Nelson v. Colorado and Some Tricky Aspects of an Easy Case.  Disappointingly, the Court majority used the Mathews v. Eldridge balancing test, an entirely nonoriginalist construct, to reach this conclusion.  It does not seem to me (as I wrote in my prior post) that any balancing is required.  There are traditional ways to deprive people of property consistent with the due process of law, and Colorado's is not one of them.

The Court's approach is, however, consistent with Justice Scalia's concurring opinion in Connecticut v. Doehr (1991), in which Scalia said, for procedures that were not known to the common law, constitutionality could be evaluated under Mathews (as a matter of precedent, I suppose).  In contrast, procedures accepted under the traditional common law, Scalia said in Doehr, should automatically be validated.  I have come to think Scalia's approach in Doehr (with which I had some incidental association) is wrong.  Mathews may well be appropriate for so-called "new" property (statutory entitlements, as in Mathews itself).  But for traditional property, doesn't the due process clause call for traditional procedures prior to deprivation?  If states (such as Colorado) invent some deprivations that fundamentally depart from traditional protections, why should their validity turn on how a modern court "balances" matters that are essentially policy assessments?  Instead, I would think an originalist would say that the due process clause locked in traditional common law protections for traditional property, and material departures are per se unconstitutional.

But then there's Justice Thomas' dissent.  I was surprised he dissented, given his usual strong impulse to protect property. As Professor Post explains, the Justice got worried about whose property it was: 

[Thomas] begins with the uncontroversial assertion that in order to prevail on their due process claim, the petitioners “must first point to a recognized property interest in that money, under state or federal law.” You can’t, in other words, be deprived of property without due process of law unless what you have been deprived of is actually your property and you can show some “substantive entitlement” to it.

Fair enough. But here, he goes on to say, the money that the petitioners seek is not “their money” at all; it’s Colorado’s money.  It used to be “their money”; but once it was “lawfully exacted pursuant to a valid conviction,” it became the state’s money. This, Thomas points out, is what the Colorado Supreme Court had held in the proceedings below, that “moneys lawfully exacted pursuant to a valid conviction become public funds” under state law.

Professor Post objects strongly, and I agree.  The key is that the money was not "lawfully exacted pursuant to a valid conviction"; it was exacted pursuant to a conviction that appeared valid at the time but was later invalidated.   Justice Thomas erred, in my view, in focusing only on the attempt to get the money back, and not on the exaction of the money in the first place.  It's true that if the money had been lawfully taken, his focus would have been the right one.  But the whole point of the case was (or should have been) whether the money was lawfully taken in the first place -- that is, whether due process allows the state to take property pursuant to a conviction that is later found to be invalid.  If the initial taking did not comport with due process, then it seems fairly clear that the state's lame post-deprivation remedy (allowing reimbursement only if the claimant could prove actual innocence) was insufficient.  Thomas got to his conclusion only by assuming that the initial deprivation was valid.  But that just seems wrong.  Under traditional common law principles, I assume that the government could not take property pursuant to an invalid conviction.  With the focus put that way, that's all that needs to be said to decide the case.