DUE PROCESS AND COLORADO’S PRESUMPTION OF GUILT

April 19, 2017, was a good day for individual due process rights thanks to the 7-1 decision handed down by the  United States Supreme Court in the case of Nelson v. Colorado.  In this case, a Colorado jury found Shannon Nelson guilty on two felony and three misdemeanor charges. As a result , the trial court ordered Nelson to pay $8,192.50 in court costs, fees and restitution.  Nelson then appealed and the convictions were later overturned.  At the conclusion of a second trial, Nelson was acquitted on all charges. Most people would probably assume that after the acquittal, the State of Colorado quickly refunded Nelson’s money.  However, that was not the case.  Instead, Colorado said that in order for Nelson to get his money back — he had to file a civil suit and prove by clear and convincing evidence that he was actually innocent. This requirement pretty much annihilated the presumption of innocence while creating a difficult and expensive process for recovering  forfeited money. Fortunately for Nelson, we still have due process rights under the 14th amendment.  In analyzing this situation, the Supreme Court concluded that the presumption of innocence was restored when the conviction was erased. Therefore, it was violation of due process for Colorado to impose an obligation on Nelson to prove his innocence. More specifically, the presumption of innocence means that a person who can’t prove his or her “actual innocence” isn’t any less innocent than one who can. Accordingly, the Due Process Clause prohibits a state government from making a person who was not convicted go through “anything more than minimal procedures” to get...

SENSIBLE IMMIGRATION POLICY (THE MIDDLE WAY)

Today, our immigration attorney, Emilia Ayala,  had the opportunity to appear as a guest on the Mike Madison radio show (WYAB 103.9 FM).  During a one hour interview she was able talk about some of the misinformation and fake news that actually gets in the way of our country’s ongoing efforts to address immigration in a reasonable and cost effective way. From an economic standpoint, the setting of immigration policy will always involve trade-offs — and as with most public policy decisions, there are always winners and losers. But even though our immigration problems remain extremely complex, there are real solutions that make economic sense. The problem at this point is that those solutions are unlikely to occur in today’s polarized political climate. In our view, sensible immigration reform should include: The creation of an an entry-exist system that monitors immigrants both when they come into the U.S. and when they leave. Such a system would most effectively address the problem known “visa overstays” — which include those who simply disappear after overstaying the time limit of their visas. The creation of a procedural pathway which would enable many of the current undocumented immigrants (who are working and do not have criminal records) to obtain legal status and work permits. Mass deportation would present many legal, ethical and moral issues in addition to the fact that it does not make sense from an economic standpoint. This would also allow law-enforcement officials to focus their resources on those who are genuine security or public-safety risks. Improving the existing channels for legal immigration so that they are more in line with...

Municipal Appeals — Time For Filing

The Mississippi Supreme Court recently revisited some of the procedural requirements for appealing municipal ordinances in the case of Pemberton Properties, LLC, et al, vs. The Mayor and Board of Alderman of Pearl, Mississippi,  In this case, the owners of several apartment complexes were unhappy with an ordinance that the City of Pearl had adopted. The property owners elected to appeal the ordinance by filing a bill of exceptions. The law in Mississippi has long been that a person wishing to challenge a city’s decision through a bill of exceptions must do so within 10 days after the decision was made. However, the property owners in the Pemberton case mistakenly thought that the 10 days did not start running until the ordinance actually went into effect (which was more than 10 days after it was adopted). Because of this mistake, the dismissal of the property owners’ appeal was affirmed by the Mississippi Supreme Court. As a result, the property owners may have been left without any remedy. You have a number of procedural options and remedies available when it comes to challenging the legality of a municipal ordinance or action. However, this case once again illustrates the importance of finding a lawyer with significant local government law experience if you are going to successfully challenge a city’s actions. For more information on our local government law practice, click...