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Article I, Sec 17 Requires a Jury Trial on Restitution

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by: Rjohnson • March 23, 2018 • no comments

In NRL v. State, 249 Or App 321 rev allowed, 352 Or 377 (2012), the Court of Appeals held that a juvenile does not have a right to a jury trial as to restitution. I filed an amicus brief (on behalf of the Oregon Trial Lawyers Association) urging the Supreme Court to reverse. I’m more able to be objective about my arguments’ vigor before I write them into a brief - so take what I say with a grain of salt. But I’m convinced that State v. Hart, 299 Or 128 (1985) was wrongly decided.

Hart held that a criminal defendant does not have a right to a jury trial on restitution. Ryan Scott, and others, have been arguing that restitution, codified at ORS 137.106 (for adults) and ORS 419C.450 (for juveniles), is now, with recent statutory changes, more about compensation and less about punishment, than when Hart was decided. Thus, Hart's logic leads to the conclusion that a jury trial is now required even though it wasn't then. I'm arguing here that Hart was wrong when it was decided.

The opinion discussed separate issues under Article I, section 11 (criminal jury trial right) and Article I, section 17 (civil jury trial right). I don’t think the Article I, section 11 argument is especially compelling, except maybe in the rare instance when the restitution award exceeds the maximum fine. But the Article I, section 17 argument is compelling, and I am optimistic about the outcome in NRL.

Article I, section 17 was enacted when there was a clearer distinction between law and equity, with a jury trial available only in the former. There is a substantial body of law about when Article I, section 17 guarantees a right to a jury trial. See MKF v. Miramontes, 352 Or 40 (2012) (discussing history, citing cases). It is not unusual for a legal issue to be embedded in an equitable action, and the line of cases extending through Miramontes holds that the right to a jury trial depends, not on the type of case generally, but on the specific claim. E.g., Miramontes, slip op. at 14.

Although Hart analyzed Article I, section 17 specifically, it did not discuss, or even cite, the prior decisions on that topic, such as Cornelison v. Seabold, 254 Or 40 (1969) or State v. 1920 Studebaker Touring Car et al., 120 Or 254, 251 P. 701 (1927). Because a demand for money damages is the sort of claim that was tried to a jury in 1857, it is part of the jury trial guarantee of Article I, section 17. The Hart court ignored that analysis altogether.

So, I think that Hart was wrong, and NRL, based in part on Hart, is also wrong. The Supreme Court might not agree with me, of course. But it’s easy enough to make a quick argument to a trial court, and, until the Court decides NRL, I suggest you cite Article I, section 17, and demand a jury trial in every restitution case.