you may proceed may please the court my name is david thomas i represent the point of an appellant warrants mourner at the outset i'd like to reserve two minutes for a bottle your honour's this case comes to this court section one nine hundred fifteen a screening the issue before the court is whether the district court heard by dismissing mr moore's complaint for failure to state a claim under the ex post facto because the issue is also whether the district court heard record whatsoever as to the amount of the administrative expenses help people make a rough yeah consequently though it doesn't take some of the time your honor and that's why we're simply asking that the court send this case back down to the district court for the reception of the evidence if the state is correct that its administrative expenses roughly equal that then so be it but there is no evidence whatsoever in the record moreover your honor mr moyer seeking prospective relief it may be in the future that his deposits may be much larger and the administrative it fees withheld may exceed fifty cents and this court has held excuse me this court as well as the us supreme court has indicated that one of the factors that the court are supposed to look to to determine whether this is not cunard if more is punitive than a fact is whether it's reasonably related to the amount to irrational non punitive interest when you see any indication which is that it's punitive in effect and it's punitive in effect because as the u s supreme court said smith versus doe one you look to the kennedy versus mendoza martinez factors and there are four or five that are the most important one include whether it's reasonably related to a has a rational connection to a non punitive purpose or is excessive with respect to that purpose in addition whether it promotes the traditional aims of punishment which the supreme court in trop  construction penalty and one of the issues that looked at in addition to whether it was punitive into was the fact that this construction penalty was based on the gravity of the underlying offense and that's exactly what we have here as the underlying class of persons who enjoy a particular governmental benefit to pay for the expenses associated with providing that benefit and for two reasons here at least two reasons we think this is not a user fee first of all mr moore does not get a benefit from  having his deposits garnished he's having a judgment levied against him that's not a benefit it's not like being able to inspire a court of veil oneself of the iran united states claims tribunals or in vance versus barret where there were the moneys were used to pay for in me trust accounts but moreover what's very poor court makes absolutely clear is that there must be a reasonable relationship between the amount of the the user fee and the amount of expenses actually associated with providing that governmental barry roth conversions to which i'm sort of comparison that is don't have to be dollar for dollar right your honor we're not suggesting there has to be your honor because he's giving up money we do not think that that's a benefit but you think you are then or have a debt collector that is about a group your honor even if it is a benefit it's there's still no evidence that it's reasonably related and that's what's very corp says it must be reasonably related and it must be a fair approximation vance versus baird specifically said that there was no allegation that the the fees withheld the interest withheld was  excessive or not reasonably related in fact sperry corp emphasized that there was not even any suggestion that the the in part the what happened fee was excessive with respect to the expenses so your honor says this is reasonable justification for the ten percent this is not like taylor versus rhode island which was a fifteen dollar probation fees it's not like people versus rivera which was one hundred thirty three dollars jail classification fee and a thirty five dollars jail booking fee the state of california has proved able to come up with a fair approximation there's no reason should do so here and i will reserve the rest thank you very much your hon it please the court my name is constance peachey i know i'm appearing today for the state of california department of corrections providing amicus briefing to the court in this case what we have is the imposition of a fee which is not retrospective it applies only and only to future deductions that are taken from this for more years account that only to the extent that he fails to or continues to fail to pay his restitution find  all will pleaded facts in the complaint are true we do not disagree that mr moyers crime was committed prior to the effective date of penal code section twenty eighty five point five requiring the ten percent fee however the ten percent fee our position is that is not retrospectively because it is not applied to any past payment that he made on his restitution fine it applies only to future the direction increases over time no it would increase your honor if the department withheld a higher percentage of his trust account monies that the time he brought suit the department of the crime no your honor it is based upon the amount of withholding so the fee is based solely and only on the inmate deposits the amount to positive to his trust account so for example mr moyer has a job in which he earns twenty two dollars and sixty two cents per month the maximum wage that the department of corrections pays to an end mate similar to mr moyer is fifty six dollars per month so obviously if he earned fifty six dollars a month the amount withheld for his restitution fine would be larger than he's currently paying he gets a higher paying job or if someone were to give him money for example at the time involved in the complaint for which there is a record and i'd refer the court to page eight the supplemental excerpts of record for his trust account transactions shows that he had one gift of twenty two dollars from which i forget exactly how much was withheld five dollars or something of that and there is the temper sent fee is also charged on that so the extent that someone gives him money or he gets a higher paying job yes he will pay a larger fee but it has nothing to do with the amount of his fine or the severity of his defendant to pay a fine and the amount that it cost the county to prosecute him it's not a simple formula of you commit acts of violent crime you get this fine or you commit th entrust on an inmate trust account the expense involved there could well exceed five dollars per transaction and in this case the department of corrections is withholding  fifty eight cents for which mr moyer receives the services of bookkeepers accountants secretary's office supplies office equipment and postage and on a monthly basis that withholding from his account is transmitted to the victim's compensation fund and a notice is sent to the county of the payment so the department of corrections is required to do two transactions basically or two notices one to send the money to the compensation fund and the other to notify the county so there are obviously postage stationery secretarial  requires the transmission of the money to money when i'm trying to find out if this might be a different matter at least in my mind if it were up on summary judgment were then some factual determination about the relation of administrative cost to the collective but my understanding of the state of the written record is that we simply don't know that it could be that there's a close relation or it's in the ballpark in the long disproportion we just don't know all that well i don't think we know for sure exactly how much it costs and once again i refer the court back to the sperry decision where the simple calculation of interest earned the record we have his accounting records which obviously involve bookkeeping and accounting services done on a monthly basis for mr moyer because there's a separate and if you look at page eight of  supplemental excerpts of record there is a separate accounting system set up to account for the restitution fine withholdings and payments so on a monthly basis he gets a notice of how  i think the sperry cases directly on point in this situation with regard to the takings clause because sperry does not require an exact the tribunals at all it recovered i think two point eight million dollars of which the federal government charged them fifteen percent for the support of the tribunals and the supreme court found that it doesn't have to be an exact correlation between the services received only if they amount is reasonable with regard to the operation of the entire program across the board that translates into the taylor case cited by my see my time is up can finish the case to the taylor case cited by the plaintiff which was the fifteen dollar supervision fee that was found not to violate the ex post facto clause because there was no evidence in the record that the fifteen dollars fee charged to all of the individuals under supervision that's fifteen dollars per your honour's a few quick points first of all united states versus pascal makes clear that this is retrospective united states versus pascoe look at the subsequent after the commission of the offense an increase in penalties  violations of supervised release the court says you have to look at the penalty scheme at the time of the commission of the offense at the time of the commission of mr moyers offense there was no ten percent administrative fee imposed it was only and indeed under california regulations it will go up to fifty percent in about it fifty percent of each deposit will be a restitution fine deduction and then ten percent on top of that secondly the state is incorrect that there is that the amount of the administrative fee is not based on the amount of the restitution fine and i'll give you an example let's say you have two prisoners both are sentenced to twelve hundred dollars restitution fine the first prisoner makes deposits from which  hundred dollars are withheld each month for the restitution five deductions so he pays it off in one year ten percent ten dollars is withheld each month for the administrative fee one hundred twenty dollars in one year prisoner b ten years me makes one tenth the deposit so ten dollars are being withheld each month but only one dollar is being imposed as an administrative fee each month so after one hundred twenty payments over ten years both are pain one hundred  finally spare snyder to did not deal with the type of expenses in the scheme that we have here there's nothing in the record to say what these things cost we're just asking the amount of time your options and your order we're just asking that the court