No Oregon Constitutional Right to “Full” Victim Restitution; Contributory Negligence May Limit Restitution Award

by Mark Wilson

On October 3, 2013, the Oregon Supreme Court upheld a lower court’s refusal to grant a crime victim “full restitution,” based upon a finding that she was 90 percent liable for her injuries.

Oregon crime victims have a constitutional “right to receive prompt restitution” under Article I, section 42(d)(1) of the Oregon Constitution. They also have a statutory right to restitution in “the full amount” of their “economic damages” under ORS 137.106(l)(a).

Daniel Algeo was driving drunk when he hit and seriously injured two women who were walking across the street. One woman, identified as JWP, was transported by Life Flight helicopter, due to a skull fracture.

Algeo pleaded guilty and was sentenced to jail, probation, fines and suspension of his driver’s license. The prosecutor requested restitution in the “full amount” of JWP’s economic damages, under ORS 137.106(1).

On July 17, 2012, the trial court awarded “restitution in an amount equal to 10 percent of [JWP’s] economic damages.” Applying a “contributory negligence” analysis, the court found that JWP was “jaywalking” when Algeo hit her, and concluded that her “unlawful activity, rather than [Algeo’s] conduct, was the ‘cause’ of [her] injuries.”

Given Algeo’s admission “at sentencing that he recklessly had caused physical injury to [JWP], the court determined that the state had proved that [Algeo] had caused ‘some,’ although not more than a ‘nominal percentage,’ or 10 percent, of [JWP’s] economic damages.” The State did not appeal the restitution award.

On August 13, 2012, JWP filed a claim with the circuit court, alleging that the failure to award her “full restitution” of her economic damages violated her constitutional right “to receive prompt restitution.” The trial court denied the petition, for the reasons outlined in its July 17, 2012 order. JWP then petitioned the Oregon Supreme Court for review. She did “not contest the trial court’s determination that she was 90 percent responsible” for her injuries. Rather, she asserted that ORS 137.106(l)(a) mandates restitution in the “full amount” of her damages, irrespective of her own culpability, and the constitutional right to “prompt restitution” incorporates the statutory mandate of “full restitution.”

The en banc Oregon Supreme Court disagreed. The Court first rejected JWP’s argument that it could consider statutory, as well as constitutional, violations under ORS 147.535. “The only jurisdiction that that statute grants is jurisdiction to review the order of the trial court denying a petitioner’s constitutional claim,” the Court held.

Nevertheless, the Court “emphasize[d] that the legislature is not foreclosed from” granting it jurisdiction to consider whether restitution orders violate a victim’s statutory rights. The legislature will undoubtedly do so in the 2014 legislative session.

The Court then interpreted Article I, section 42(d)(1), of the Oregon Constitution. That section does not guarantee victims “a constitutional right to the ‘full amount’ of a victim’s economic damages, as provided by Oregon statute,” the Court concluded. See: State v. Algeo, 354 Ore. 236; 311 P.3d 865 (Or. 2013)(en banc).

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