we'll hear arguments first this morning in case fifteen twelve fifty six nelson versus colorado mr brown or mr chief justice it may please the court when the judgment is reversed the person who is paid money pursu the judgment 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 the judgment of conviction is reversed the state keeps the defendants 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 well because you're sort of it's not constitutional for them and let's look what's the basis for for your kids you know so here we could 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 to nelson and matt you're absolutely right though to say that if the colorado supreme court had said it doesn't matter what process we use because it's not their property state's property if the colorado supreme court had said that then you're right then we would be having to say we can argument that the constitution itself gives the money gives the right to the money to nelson and make that were to make that  so if if colorado if the colorado supreme court had said that this money but wong's to the state rather than to nelson it maddened madden that would be tantamount to charging people money for the privilege of trying them on lawfully right it would be the state taking money as a result of a trial that has been reversed a trial that was conducted on nothing that would the dissenters said something quite simple which was the only entitle him 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 would when you paid the money we were entitle to it so we're there's a disconnect there if they were entitled to it initially we're still back to the operative question of why are they in tight what is the constitutional right for you to get it the state was entirely to the money initially because there were 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 was acquitted of all charges lewis maddon with the convictions were reversed and the prosecutor declined to  and so while it was the state's money while the convictions existed once those judgments of conviction ceased to exist at that point it's no longer the state's money i thought your argument was was that spencer what you're saying now and a lot of your brief is bunch more complicated but the simple argument i thought was best this was your client's money it's a certain amount of dollars ok 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 your right ok now if that is the argument there are two complications that i see in your briefing one is that you concede that they could be denied restitution for equitable reasons let's just take that we're where else in the law  now in a garden variety in garden variety criminal cases like this one there would be no equitable considerations that would interfere with a refund of the money but there are it's possible to imagine other sorts of cases where it would and so for example the court has this court mention as we say in the in the reply brief this court mentioned an example in which an insurance case in which a refund of full refund would provide over compensation for some reason to t appellant and in such a case the refund for equitable reasons would have to be scaled back in an ordinary criminal case like the like ours there's nothing like that that those sorts of equitable considerations are very very far from from from a case like this one and you know colorado departs right and this is the basic argument it's our money by virtue of state law and once that conviction disappears why doesn't the state have to proactively return the money in other ways why is it even required for the person to bring any kind of refund action against the state of the state does proactively have to refund the money that there is no requirement for the appellant to bring to bring an action rather the what the so your complaint is not to the nature of this action and to exactly what you have to prove you're saying that as soon as the conviction is vacated the state has to put a check in the mail  that may be a little too a little too simple to so that in our view the a proper procedure would be the procedure that was followed in these cases where after and shannon nelson's case after she was acquitted she filed a motion back in the state hasn't done what it's supposed to do but it seems as though the obligation on the state's part is immediately to put a check in the mail no that's right that's right that's right and so when that hadn't happened after several months we filed the motions in both cases i i was just i understood you in responding to justice alito to say that the state had to give the money back because they required it as a result of a flawed prosecution it's not right right well that's not true for some of the payments you know there's a thirty dollars docket feet in other words that's not something that depends upon whether the conviction is valid or not in the normal case yes well in under it the all of these payments under colorado law are collected only from defendants who are convicted including a doc including the doctor right none of these none of these none of these fees charges it cetera are the sorts of sort of filing fees that are collected from any litigant win or lose there's nothing like that in this case this is all money that is contingent upon the existence of a conviction the other complication that i see in this make whole argument in other words the state took things away from you it's a property away from you and when the conviction is reversed they have to restore you to the position he 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 that was liberty so if you were argument is correct why shouldn't this what they did in the state of the state took away your client's liberty without due process of law so would they be automatically entitled to be made whole in that respect no and the the reason for that is that while there is a long historical tradition of providing refunds of monetary payments upon the reversal of a conviction there is no comparable tradition of providing compensation for like that can defeat the argument for compensation for time wrongfully spent in prison then can tradition defeat the argument that you make with respect to the fees and the rest know because the tradition is is this the normal practice for centuries has been to refund monetary payments that are contingent upon a judgment when that judgment ok so the argument is tradition cares about tradition if the state says x and the tradition is white unless there's a constitution oh that's right that's right that's right and so and so tradition tradition comes in you know in in determining what processes do courts always always look t traditions is always a factor in considering what we're getting back to the state law for young women are you saying that if this creates the right under state law it can not unduly complicate that right by flawed procedures under our procedural due process problems well i see it even more simply than that i would say that when state is holding on to property that belongs to  citizens the state has an obligation to have a procedure that is adequate for returning the property i mean that's the that's the error that we're complaining about in the colorado supreme court below the colorado supreme court said that it was car supreme court and analyze to the argument that they have to provide that we look to tradition and we have we have to see what sort of tradition is adequate so what would be an adequate procedure they have to be made i guess i don't think i'm saying anything different from what you're simply to refund the money it's their money colorado can't make defendants have to prove that they're actually innocent in order to get their own money back let's take the what parts of the prove is that your conviction was reversed right if it was if it was something that that ministerial made maybe that would satisfy due process although even there i suppose it would be hard to see what purpose would be served by such an action when you  i agree i thought i was i was saying you would have to be a very streamlined some very streamlined very easy sort of civil action with that would be pointless i mean you would be hard to see what purpose would be served by requiring such an act i'm agreeing with you what what purpose would be served by that when you can just right or do you think even under mathews the court oh no wonder matthews the court got it terribly wrong i mean the court the colorado supreme court's application of matthews was basically to say due process requires some kind of a hearing well that gives you some kind of a hearing so good enough if you look at the math these factors one by one they all point to very very strongly in favor of finding the exoneration act an inadequate remedy it's in first of all this is this is the belong to colorado colorado has yet to explain what interest it has in preventing this money if we're all right in that we're right in the caon and we begin tradition is very important here because well in the courts due process cases the courts often say the tradition that's very important it's a mess if we're trying to defund the substantive right yeah right and so and also in determining what process he's doing so so invoking and tradition to support in in to process cases because you know in determining what what's what process to do in determining what's the law of the land well what better place to look than what the law of the land has always been well that's a different analysis than the matthews analysis direct that's you know the thing about this case is that what colorado is doing here has never been done before so there are there is no precedent directly on point at a very 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 it's seems mr manners that you could be approaching this in two ways i mean one is you could be claiming a substantive due process right along the lines that colorado said you were doing and then you came back and said no now 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 d process i would have thought that your argument is the simple one of this is property under state law it's it's it's 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 that's right that property back and production wouldn't be any part of that's right so if you're looking just at the matthews test you're absolutely right tradition would not be part of that but the matthews test is not the only way the court has looked at this general class issues and as i said because of because no state has ever done what colorado is doing there we're trying to draw from various strands of due process precedents one that's right and so the novelty here is that this case got to the colorado supreme court immediately after exoneration act was enacted and the colorado supreme court said oh now we have a statute that tells how money is supposed to be refunded to exonerated defendants under state law that must be now the exclusive remedy for defendants to recover the money but before before the exoneration act there there was no statute governing this is topic just like in many jurisdictions in the news just as a matter of routine practice successful appellants got their money back well is that true and i still don't understand the difference between the simple argument that you're required to be made whole and the argument that the court could deny restitution based on equitable considerations as that this court has said is which is your argument equitable reason that you shouldn't get it back but what i'm trying to say is in an ordinary criminal case like this one there is no equitable reason why you shouldn't get it back and it's impossible almost to conceive of an equitable reason the  that you know 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 does that then the money is not refund you know that's that i impossible under state law for indigent defendants to seek a stay of monetary tightening payments pending appeal for two reasons one is that you have to to get a stay pending appeal you have to post a bond in the full amount of the payment and way out of reach for any indigent defense and if that we talk 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 client's indigent defense is that they they couldn't they couldn't have done that second by statute days appear to be unavailable where the money is don't collect the money until the conviction is final and a conviction that silver churned on collateral review where the possibility of money having been collected may exist should there be a difference in how we think about those two situations you know because because whatever the reason for the disappearance  but certainly in american jurisprudence where the payment of restitution to a third party would have been a good reason and equitable reason for the state not to have to return that money colorado if 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 it's just part of the sentence what is states generally do if they've collected this money they've paid it out to the victim and then the conviction is overturned do they usually leave it the money with the victim and just take it out of their general treasury or do states try to take it back from the bit that that i do not know and the thing is there are there are very few reported cases raising the issue of refunds of restitution after the reversal of a conviction and i think the reason must be that restitution of restitution to victims although quite old in principle really has only been applied in scene difficult amounts recently so your argument is that if let's say there's a very substantial judgment of restitution and the money is paid to the victims what say their victims like the ones in this case so that it's  and then even after the judgment has become final if there is if collateral if the defendant is given really fun collateral review the state would have to reach would have to compensate the defendant for all the money that was paid to the victims that's your argument i will i agree with all of that except the word compensate the state would have to refund the amount of money it had taken from the defendant remember that i mean and then as between the state in the victims that's between that's that's between the state in the victims that's no that's there'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 whether denominated restitution or dominated anything else all of that money the state is spending on something the state the state isn't hiding that money under a mattress all that money even even find paid into a state's general fund this day to spending that money on with the hypothetical state of in theory that the victim and the victim every spent the money no no i mean you know you misunderstand that that the state is saying i'm not talking about the victims spending the money and i meant to be talking about the state  saying well i'm sorry we can't we can upon the reversal of the candidates in the state saying we can't refund the money sorry we already dispersed is restitution to victims and what i'm saying is the state disperses all the money it collects for one purpose or another that doesn't set restitution apart yarder thank you mr chief justice and may it please the court the dispositive question in this case is substantive not procedural petitioners are not claiming that they've been denied an opportunity to prove that they are that they meet the substantive elements of the colorado exoneration argue argument appropriately what they're saying is that they shouldn't have to prove actual innocence at all so those procedures because they are geared toward focused on that inquiry shouldn't have to apply and what that means is what petitioners are arguing is that they have a substantive right to automatic compensation without having to prove anything at all and so that i think that that's just mistaken mr 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 the dispute the question in this case is whether as a matter of solution money is it this is  state's money is the colorado supreme court held you could look at the petition why is it the state's money because this is petitioners acknowledged 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 that that it's our money and it'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 at exactly the same moment why isn't that true justice kagan it's the same reason that upon reversal the convictions certainly the petitioners can't be subject to that conviction anymore they have to be released from incarceration and they cannot be subject to continued imposition of the monetary judgment but what due process has never held and what this court's decisions that i've not talking about due process i'm really just talking about whose money it is under state law state property law whose money as they say it's their money because there's no longer a valid conviction you say notwithstanding that they're valid conviction has been reversed 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 encounter the issue of sovereign immunity so for example in united states versus get injured this court held that claims like these are not return of property type claims they are claims they 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 just sort of it's described t commonsensical terms you know rather than point me to a sovereign immunity case or something just in common sensical terms why is this the state's money it's the state's money just as it just is the state lawfully incarcerated these defendants and petitioners don't dispute that the state lawfully but erroneous lee took the defendant's liberty away in this case that was lawful same as the court or the state lawfully took custody of and property in the states  excuse me the criminal defendants money and so do you have any obligation to return the money at all pursuant to any procedures could you do say once once you've paid 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 and no the state does not have that obligation just as it was required to pass the exoneration act in order to compensate for not defendants who were erroneous li but not wrongfully convicted otherwise they have to prove that they meet the elements of for example a constitutional tort that they were wronged in some way so if you said instead of the hundred twenty eight dollars for this the thirty dollars or if you said everybody who is convicted owes the state ten thousand dollars and you don't you don't get it back if you're later  if the conviction is later overturned that that is the rule that this court has it here too and that that is precisely the implication of courts that when deciding these claims look for waivers of sovereign immunity because the assumption is that the deprivation of both the liberty and the property at the time of conviction is lawful and that that the property passes in the public funds if it was mr banta wrong then when he told us  example i can give and there are many is people versus no it's the colorado court of appeals case from two thousand and five or the court declined to order what they describe as a refund of amounts charged for probation even though that conviction was later overturned now the chief case they rely upon is tolan versus straw it's a colorado case from one nine hundred sixty one and the court there did order refunds of the fines but in that case and as interpreted by the colorado springs 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 the colorado supreme court understands that that was a case about wrongful conduct on the part of someone judy getting the case rather than situations in which lower courts did order that they're automatically gave ordered the money to go back just to sort of are we're not denying that there are certainly some courts that have done so but there are many courts the do not treat these claims as return of property claim they treat them as claims for compensation against the state for which a waiver of sovereign immunity is that is why do me a question of labels and if you have no conviction to justify the payment of money because it's been avoided why is it your money now just simply because you collected it before hand even though the basis for the collection is wrong well as petitioners not if you took his car  well that would be a forfeiture situation and there are other why isn't this comparable to for well in fact it is the forfeiture proceedings in some cases provide a useful analogy if the district court orders honestly say to me that if this defendant had who tristan that the trial court would have granted one and how many cases do you think of the thousands of convictions that colorado proceedings you want now which stay motions to be determined by trial courts is hundreds if not thousands that's what you're advocating i'm sorry just this one more you want every trial court to decide whether a stay is appropriate no i'm just describing what current procedure provides in terms of stays but if you and this question suppose we have a criminal trial the jury comes in with a verdict of guilty and then the trials you had said judgment vacated it was insufficient evidence to convict in that case 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 that is properly thought of as criminal  for compensation just as in united states versus getting your where the conviction was overturned because the statute on which it was based was unconstitutionally vague the court this court denied compensation because there was no ginsburg that's the question is this properly considered under state law or under the constitution as a substantive matter property of the criminal defendant or is it not and wasn't the page twenty seven of their brief they have three cases when going back to eight hundred thirty two of this court that says the law is that when you reverse the judgment in a civil case i would know it would apply to as well to criminal the person on the other side gets the money back  and now he doesn't say what law and moreover you heard your brother here say well the colorado supreme court said that this wasn't a question here of whose property it was it was a question of the remedy property belong to the criminal defendant so one what do you say about those cases to what did the colorado supreme court say as a matter of property law yes just as prior first of all the cases there are cases that say upon reversal of an erroneous judgment there can be restitution but to say can it's is the law raises an obligation so the one who's receive the benefit of the run is judgment to make restitution to the other party won't work creates an obligation doesn't states versus morgan which is a case from one nine hundred thirty nine the court overturned an order from the district court and yet declined to provide a refund because what the court said is that had to remain for a hearing on the merits of the substantive dispute one of the petitioners own source was a more interested in what does the caller did the colorado supreme court say this is is money but we don't have a remedy did it say this is our money and we don't have to have a remedy colorado supreme court necessarily decided was that the this is not under state law property of the criminal defendant but that's a question it seems to me of you keep talking about compensation issues restitution and under normal equitable principles of restitution it in fact still is the property of the person from 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 that's not sort the normal state give us some money under equitable principles it's state give me my money back yet just as mr chief justice that is the question is under the historical treatment of this issue is this property properly considered return of money the courts do say restitution they also say that it is a claim of unjust enrichment that depends on factors including the merits of the case one of petitioners own sources a teacher article goes we go by that what this court said in eight hundred thirty two which seems like historical tradition suppose well i take that unless you give me a reason not to as stating what the law is that's what it says so what's your response to that my response that just as prior as i respectfully i don't think that's exactly what the law says if the law says that if petitioners establish a substantive due process right to this money back we agree with money money is property we don't have a right to own property correct it yes justice on my arse so i'm a little confused by what you're asking for they're saying it's my money this is properly considered about we borrow from double jeopardy once a concept once the judgement is void you no longer have a basis to that it's layers they had it was their money to begin we would have to refund it in normal ways consistent with procedural due process yes just a ok so it really does depend on whether they we think it's their money or it's your money that's that's correct so if this were your money on this on the simple theory of there once was a conviction it once was valid we collected the 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 any process for getting that money back right you could just keep it and say that's it you can prove your innocence you cannot pr bad it's our money you agree with that i think you've said that the chief lets corrections to scare you and it would also be true i would think that even if that conviction were improperly gained not just in the sense that it was later vacated but let's say it was the state fault that that conviction occurred in other words let's say oh i don't know there was a brady violation or something like that it would still be your money justice kagan in that that actually neatly illustrates the decisions that states like colorado have to make before the exoneration at for example criminal defendants who convictions were overturned for error and they were actually innocent had no remedy except if they prove some sort of a wrong such as the one you're describing then they could sue for a constitutional to work in fact a significant case from colorado had exactly that a criminal defendant sued for a brady violation and received millions of dollars  compensation but what the 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 is overturned and as your does your analysis  the process it's the end of the process you're convicted you pay a ten thousand dollars fine why don't the conviction was overturned why don't you say well you know this is our money now it's in the state treasury you can't get it back because of sovereign immunity mr and get injured that was a fine that was that the court did not and 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 so what happens then i mean you're i grant you have a tough side of this argument is doesn't seem very fair what you're doing but the the you have a corporate criminal defendant you can't put him in jail and so what they do is they find the corporation fifteen million dollars and then the state says by the way why appeal if you win we're not going to give you the money back as that you've just said but we'll search sovereign immunity now there's something wrong with that if there's something wrong with that then there was something wrong with those long cases decided previously and this is maybe they were right in eight hundred thirty two and then they went off on a wrong track and you're not it doesn't feel maybe those cases were wrong i don't know i have to go what your eye has to ask him and that's why his brief has several different arguments that it's hard to figure out but there's ok you want to say anything in response to this question just as prior i understand what you're struggling with we  struggle with that as well but the the long colorado supported by decisions of this court and others in the eighteen hundreds in the early one nine hundred sixty s that this is a question of whether the state has decided to provide this kind of compensation and if the court rules that this is a matter of substantive procedural or excuse me substantive right under the constitution i think you do encounter very significant problems about why i compensation isn't awarded for the serious deprivation of liberty that occur why doesn't the impression i 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 if you say that at some point it ceased to be their money and it became the state's money but then you have to show that it was taken away pursuant to due process consistent with due process yes and the process is as as petitioners admit and they did so below in their petitions for a year into the colorado supreme court they said that the the deprivations of their liberty in their property comported with due process because a conviction supported the imposition process your honor there were errors 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 this was a wrongful deprivation of liberty for example like the manual versus city of joliet case this court encountered there would be a claim for compensation due to a wrongful defect in the due process in the procedures that led to that deprivation but the question here there was no wrongful conduct that occurred there was an error that occurred and the way that this course precedence of treated that is not as a return for property but as a claim for compensation why isn't it a violation of the takings clause for the issue there where there is simply no process given before the taking a curse 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 is no constitutional requirement to provide compensation for the deprivation of liberty that occurs now that's i mean what are you going to do i mean you can't no you can't give them back whatever time they've spent in jail you just can't do it but you can give them the money back and that's true but what you can compensate them for and certainly for a very long time the common law and other principles of of jurisprudence have supported the notion that you can you can either order restitution or some other compensation to account for a deprivation such as a deprivation of liberty and so if the rule were that this is petitioners property and it was it certainly was petitions liberty before it was properly whether or not wrongfully although taken it's unclear why petitioners principle wouldn't apply to that same wisner engine one of the 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 you know someone's wrongfully imprisoned for twenty years and the state felt some obligation to remedy that at least in a symbolic way  but in order to qualify for that you do need to show all these other things and i mean is it completely settled i guess we have the decision from the colorado supreme court that that same act applies in this strikes me as different  is that there is no other statutory mechanism for the kind of compensation that petitioners are seeking in this case so that 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 ok i guess what i said is that by it's it's it's 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 is interpreted it far more broadly not merely broadly 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 current a supreme court was thinking of was  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  sation like the kind of compensation that petitioners are seeking in this case available only on a claim of actual innocence so i am agreeing with you because yes the statute is that narrow but the colorado springs 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 if we were to look at this is this is not public property  vacated that instead it once again becomes the criminal defendants property acquitted defendants property if that were true what kind of procedure would you have to set up to return the property do you think kagan i think it would 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 would have there could be for example time limits put in place but if this truly is petitioners property they would have to be minimal requirements if you gave made a motion that's correct so it would be similar to the route that they they attempted to take but the courts below held that they did not have authority except in the case imagine just for the for the few i thought you i thought you told me that it was not their property it was even but even if it was once it's in your your treasury they can't get it back because of sovereign immunity the chief justice roberts excuse me mr chief justice if this is their property if they have a president entitle mint 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 springs court held and therefore there's there can only be a mechanism for compensation from public land for those losses and so that is the key question in this case 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 the car doesn't say the opposite it doesn't say they are all right so what do we do about it but but but the but the 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 hard money was our property which is is the exoneration act an adequate procedure for returning because that could be consistent with the monies their property but they have an obligation to give it back not really because because if it was if the if the price if the money is the state's property then it doesn't matter they don't have to provide any procedure to give it back right so that the question that the colorado supreme court actually decided the one thing the issue the i mean the part of the decision they were attacking is that this is an adequate procedure for the return of the property ok that's my first bike the word return and i'm looking for something here that i mean you see words you know i'm looking for something here in the opinion that will say that i could just say ok see they concede that it is this man's property they conceded but i haven't found that now unfortunately i don't explicitly concede it they assume it is what is what we would say ok i know that's not helpful to you or the other the other but the other the other the other quick point i want to make is i just one 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 a charge nelsen in with crimes right we're not 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 pa long as you have a minute then you i mean i'm not going to hear a case that you like the bank of washington versus about united states eight hundred thirty two and it's as the law what the law the common law i believe the common i believe all th