State v. Parker , 235 Utah Adv. Rep. 36 ( 1994 )

GREENWOOD, Judge

(concurring in result only with DAVIS, Judge):

I agree with Judge Davis that due process does not require the return of fees paid by defendant to the Fremont Center. However, I do not agree that procedural due process was satisfied in this case by simply providing defendant with notice and a hearing. I also do not believe that defendant’s alleged actual guilt has any bearing on the issue presented. Because his conviction was vacated, defendant is entitled to be assumed innocent for all purposes. In these two points, I am in disagreement with Judge Davis and agree with Judge Billings’s analysis.

In addition to guaranteeing notice and a hearing, procedural due process invokes fairness considerations. The case referred to as seminal by Judge Billings states as follows: “The Fifth Amendment prohibition against the taking of one’s property without due process of law demands no less than the full restitution of a fíne that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result.” United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff'd, 478 F.2d 835 (5th Cir.1973). Although “fairness” may be in the eye of the beholder, I do not think it mandates return of the Fremont Center fees. As pointed out by Judge Davis, defendant received something in exchange for his payment. Services were rendered to defendant by the Fremont Center. In addition, he avoided incarceration in prison, for which he could not be compensated, and chose not to pursue a stay of his probationary term pending appeal. Fundamental fairness is not denied by refusing to refund the fees to defendant.

Substantive due process, likewise, does not require compensating defendant. As Judge Billings notes, substantive due process protects against arbitrary governmental action. I do not believe that requiring defendant to attend the Fremont Center as a condition of probation could be characterized as arbitrary.