Two Big Restitution Cases Out Tomorrow
by: Ryan • October 2, 2013 • no comments
Back in January, 2013, when I was young and naive (with regard to the Oregon Supreme Court following the departures of Justices DeMuniz and Durham), I noted in an LoD post that the Oregon Supreme Court granted review in State v. Algeo. First I quoted the press release:
- Pursuant to ORS 147.539, petitioner J.P. (victim) has been granted review of a trial court order that denied her claim of :a violation of her rights under Article I, section 42, of the Oregon Constitution. She asserts that the trial court legally was required to impose the full amount of her economic damages as restitution, as part of the sentence of defendant Daniel Algeo for driving under the influence of intoxicants and assault IV.
- On review, the issue in this criminal case is whether the trial court erred in applying comparative negligence principles :under ORS 31.600 to apportion responsibility for the victim's injuries between the victim and the defendant, and then reducing the amount it ordered defendant to pay in restitution to the percentage of victim's economic damages attributed to the conduct of the defendant.
Next, I observed the following (remember, young and naive):
- I must admit, I'm quite pleased by this petition for review. Not because I'm sympathetic to the argument that comparative negligence shouldn't be considered in awarding restitution. Rather,I believe it highlights, inadvertently, some of the issues raised by another case coming up next month, which is focused on whether restitution is a jury question. In other words, it's a great example of the way a criminal prosecution (or juvenile adjudication) becomes a way to circumvent not just the long-standing constitutional guarantee under Article I, section 17, but also all the statutory protections that are part of a civil suit.
That other case, by the way, is State v. N.R.L. In that case, the issue is the imposition of restitution in a juvenile case without the right -- presumably guaranteed by the Oregon Constitution, specifically Article I, section 17 -- to a jury trial in the determination of monetary damages. In N.R.L., the juvenile was burdened with over $100,000 in restitution. Had he been sued for over $100,000, he would have been guaranteed the right to a jury. But we've seen the evolution of prosecutors into collection agents as a way to circumvent some constitutional guarantees. And statutory guarantees as well: see the issue in Algeo as described above.
I suspect I wasn't the only one to recognize how the two cases played off each other. Tomorrow, the OSC will be issuing an opinion in St v N.R.L., in addition to State v. Algeo. I wish I was more optimistic, but we have already seen -- in State v. Reinke -- the Court's willingness to draw ridiculous distinctions in order to avoid the application of constitutional guarantees. You may recall that in Reinke, the court said, essentially, that the definition of a crime for one part of Article I, section 11 (for the purposes of determining what elements go to a jury) is different than the definition of a crime for another part of Article I, section 11 (for the purpose of determining what elements must be approved by the Grand Jury.) The court -- made up primarily of former AG's and not a single former defense attorney -- manages to ignore the forest for the weeds. (See also State v. Ofodrinwa, which held that the legislature must have intended to make sex with a 17 year old a felony in a roundabout, ambiguous way, when it already had a clear and direct statute making it a misdemeanor.)
Tomorrow, I will be happy to admit I was too cynical if that turns out to be the case.
