State v. Algeo , 354 Or. 236 ( 2013 )

236 October 3, 2013 No. 44
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff,
v.
DANIEL ALGEO,
Defendant.
J. W. P.,
Petitioner on Review,
v.
STATE OF OREGON
and Daniel Algeo,
Respondents on Review.
(CC CR100607; SC S060830)
En Banc
On petition for review pursuant to ORS 147.539.*
Argued and submitted April 29, 2013.
Erick J. Haynie, Perkins Coie, Portland, argued the cause
and filed the brief for petitioner on review. With him on the
brief were Nathan R. Christensen and Bryan D. Beel.
Paul L. Smith, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review State
of Oregon. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
Paula J. Lawrence, The Lawrence Law Firm, McMinnville,
argued the cause and filed the brief for respondent on review
Daniel Algeo.
Margaret Garven, Portland, filed a brief for amicus curiae
The National Crime Victim Law Institute. With her on the
brief was Amy C. Liu.
______________
*  Review of an order of the Yamhill County Circuit Court, Ronald W. Stone,
Judge.
Cite as 354 Or 236 (2013) 237
WALTERS, J.
The order of the circuit court is affirmed.
The trial court ordered that defendant pay 10 percent of a crime victim’s
damages as restitution because the court determined that the victim was 90
percent at fault for the accident. The victim filed a direct appeal in the Supreme
Court alleging that the trial court’s order violated ORS 137.106 and a victim’s
right under Article I, section 42, to receive “prompt restitution.” Held: The
Supreme Court does not have jurisdiction to consider the statutory violation, and
Article I, section 42, does not include an equivalent provision.
The order of the circuit court is affirmed.
238 State v. Algeo
WALTERS, J.
Petitioner is a crime victim who filed a claim pur-
suant to ORS 147.515, alleging that the trial court had vio-
lated her right to “receive prompt restitution” under Article I,
section 42(1)(d),1 of the Oregon Constitution. The trial court
entered an order denying petitioner’s claim, and, pursuant
to ORS 147.539, petitioner sought direct review of that order
in this court. For the reasons that follow, we affirm the trial
court’s order.
The material facts are procedural and undisputed.
Petitioner and her friend were crossing a street late at night
when defendant, who had been drinking, hit them with his
car and seriously injured them.2 Defendant pleaded guilty
to one count of driving under the influence of intoxicants
and two counts of assault in the fourth degree for “intention-
ally, knowingly or recklessly caus[ing] physical injury.” ORS
163.160. The trial court sentenced defendant to a combination
of supervised probation, jail time, fines, and suspension of his
driver’s license. Pursuant to ORS 137.106, the trial court judg-
ment also granted the state 90 days to submit a “reasonable
final restitution amount.”3
1
Article I, section 42(1)(d) provides:
“To preserve and protect the right of crime victims to justice, to ensure
crime victims a meaningful role in the criminal and juvenile justice systems, to
accord crime victims due dignity and respect and to ensure that criminal and
juvenile court delinquency proceedings are conducted to seek the truth as to the
defendant’s innocence or guilt, and also to ensure that a fair balance is struck
between the rights of crime victims and the rights of criminal defendants in
the course and conduct of criminal and juvenile court delinquency proceedings,
the following rights are hereby granted to victims in all prosecutions for crimes
and in juvenile court delinquency proceedings:
“* * * * *
“The right to receive prompt restitution from the convicted criminal who
caused the victim’s loss or injury[.]”
2
Both women were given emergency medical treatment at the scene. Peti-
tioner was identified as having serious physical injuries, including a fractured skull.
She was transported by Life Flight helicopter to a Portland hospital for emergency
treatment. The other victim was taken by ambulance to the Willamette Valley
Medical Center for non-life-threatening injuries.
3
ORS 137.106 provides, in part:
“(1)  When a person is convicted of a crime *  * that has resulted in eco-
*
nomic damages, the district attorney shall investigate and present to the court,
prior to the time of sentencing, evidence of the nature and amount of the
damages. If the court finds from the evidence presented that a victim suffered
Cite as 354 Or 236 (2013) 239
ORS 137.106(1) provides that, when a trial court
determines that a person has been convicted of a crime that
has resulted in economic damages, the court must include in
its judgment a requirement that the defendant pay restitution
to the victim in the “full amount” of those damages. In this
case, the state timely submitted a proposed supplemental judg-
ment requesting that defendant be ordered to pay restitution
in an amount that defendant stipulated represented the full
amount of petitioner’s economic damages. The trial court
found that criminal conduct had occurred; that petitioner had
suffered economic damages; and that, but for defendant’s crim-
inal conduct, petitioner would not have incurred those dam-
ages. However, the court asked the parties to brief two ques-
tions: (1) whether the court may grant an award of restitution
that exceeds the amount that petitioner could have recovered
in a civil action; and (2) whether a contributory negligence
analysis is appropriate in the context of a restitution deter-
mination.
After considering the parties’ arguments, the court
issued a letter opinion dated July 17, 2012, awarding resti-
tution in an amount equal to 10 percent of petitioner’s eco-
nomic damages. The court reasoned that the economic dam-
ages recoverable through criminal restitution are those that
are recoverable in a civil action and that, in a civil action,
petitioner could not have obtained judgment for damages
resulting from her own negligence. The court found that peti-
tioner had been “jaywalking” when defendant struck and
injured her and concluded that that unlawful activity, rather
than defendant’s criminal conduct, was the “cause” of peti-
tioner’s injuries. However, because defendant had admitted
at sentencing that he recklessly had caused physical injury
economic damages, in addition to any other sanction it may impose, the court
shall include one of the following in the judgment:
“(a)  A requirement that the defendant pay the victim restitution in a spe-
cific amount that equals the full amount of the victim’s economic damages as
determined by the court.
“(b)  A requirement that the defendant pay the victim restitution, and that
the specific amount of restitution will be established by a supplemental judg-
ment based upon a determination made by the court within 90 days of entry
of the judgment. In the supplemental judgment, the court shall establish a
specific amount of restitution that equals the full amount of the victim’s eco-
nomic damages as determined by the court.”
240 State v. Algeo
to petitioner, the court determined that the state had proved
that defendant had caused “some,” although not more than a
“nominal percentage,” or 10 percent, of petitioner’s economic
damages. “It is clear from the evidence that almost all of the
economic damages suffered by the victim[  were caused by
]
[her] violation of the law,” the court wrote. “I don’t believe I
have any authority to award more.” The court then entered a
supplemental judgment in an amount that reflected its rea-
soning. Neither party appealed from that judgment, which
was entered on August 3, 2012.
On August 13, 2012, represented by private counsel,
petitioner filed a claim in the underlying criminal proceeding
alleging that the court had entered the supplemental judg-
ment in error and in violation of Article I, section 42, of the
Oregon Constitution. Petitioner set out her claim on Form
4.100.2a of the UTCR Appendix of Forms, “Claim of Vio-
lation of Crime Victims’ Right(s).” On September 13, 2012,
petitioner filed an amended claim using the same form. In
her amended claim, petitioner alleged that the court’s supple-
mental judgment had violated her right “[t]o receive prompt
restitution from the convicted criminal who caused [her]
loss or injury.” As a remedy, petitioner sought restitution in
the full amount of her economic damages.
After considering additional briefing and conducting
another hearing, the trial court entered an order denying peti-
tioner’s claim “for the reasons on the record includ[ing the
court’s] letter opinion of July 17, 2012.”4 Petitioner sought
review of the trial court’s order pursuant to ORS 147.539.5
This court exercised its discretion to grant review and
4
ORS 147.517 requires that, upon receipt of a facially valid claim under ORS
147.515, the court “shall issue an order to show cause why the victim should not
be granted relief.” If the court determines that the victim has not alleged a facially
valid claim, the court shall enter an order dismissing the claim, in conformance
with certain statutory requirements. ORS 147.515(5). It appears that the trial
court issued its October 29, 2012, order denying petitioner’s motion in lieu of either
a “show cause” order or an order dismissing petitioner’s claim as facially invalid.
In their arguments to this court, the parties do not raise the question whether the
trial court followed the procedures mandated by ORS 147.515.
5
ORS 147.535(4) provides, in part, that “[a]ppellate review of an order issued
under ORS 147.515 *  * shall be as provided in *  * ORS 147.539 in all appeals
*  *
arising under ORS 147.500 to 147.550 except those described in paragraph (a) of
this subsection.” ORS 147.539(1) provides that the Supreme Court has discretionary
jurisdiction to review orders described in ORS 147.535(4)(b).
Cite as 354 Or 236 (2013) 241
extended the time to issue its final decision pursuant to
ORS 147.539(4)(b).6
Before considering petitioner’s arguments, we think
it helpful to lay out the pertinent constitutional and statutory
framework that governs petitioner’s claim. Article I, sections
42 and 43, of the Oregon Constitution provide crime victims
with specifically enumerated rights, including “[t]he right to
receive prompt restitution from the convicted criminal who
caused the victim’s loss or injury.” Or Const, Art I, § 42(1)(d).
Article I, section 42(3)(a), provides that every victim shall
have a “remedy by due course of law for violation of a right
established in [section 42].” Article I, section 42(3)(b), pro-
vides that a “victim may assert a claim for a right established
in [section 42] in a pending case, by a mandamus proceeding
if no case is pending or as otherwise provided by law.”
The legislature enacted ORS 147.500 to 147.550 to
effectuate those constitutional rights. See ORS 147.504(1)
(so stating). Under those statutes, a victim who wishes to
allege a violation of a right granted by Article I, section 42,
must inform the court within 30 days of the date the vic-
tim knew, or reasonably should have known, of the facts
supporting the allegation. ORS 147.515(1). The victim then
must describe those facts and propose a remedy. Id. If the
trial court deems the victim’s claim to be facially valid, it
must issue an order to “show cause why the victim should not
be granted relief,” ORS 147.517(2), and may hold a hearing
on the victim’s claim, ORS 147.530(1). At the conclusion of
that hearing, the trial court must issue an order granting
or denying the relief requested. ORS 147.530(4). A party not
satisfied with the court’s order may seek review in this court
pursuant to ORS 147.535, 147.537, and 147.539.
In this case, petitioner and the trial court followed the
statutory procedures that we have outlined. Petitioner filed
a claim alleging a violation of her right to “receive prompt
6
ORS 147.539(4)(a) generally requires this court to issue its decision on
appeal within 21 days after the date that the court issued the order granting
review. We determined that the ends of justice that would be served by permitting
the parties to file briefs and participate in oral argument outweighed the best
interests of the victim, the prosecuting attorney, the defendant, and the public in
this case. We thus extended the applicable time requirement for issuing our final
decision, pursuant to 147.539(4)(b).
242 State v. Algeo
restitution” under Article I, section 42, and the trial court
entered an order denying that claim. On review, petitioner
does not contest the trial court’s determination that she was
90 percent responsible for the injuries that she suffered;
rather, she argues that ORS 137.106(1)(a) requires that a per-
son who commits a crime that results in economic damages
pay the “full amount” of those damages, irrespective of the
fault of the victim or any third party. Petitioner interprets
Article I, section 42(1) d), as incorporating that statutory
requirement. Alternatively, petitioner argues that this court
has authority to determine whether the trial court committed
statutory error by failing to impose restitution in the full
amount of her economic damages.
In accordance with our usual approach, we take up
petitioner’s statutory argument before we consider her consti-
tutional argument. Burt v. Blumenauer, 299 Or 55, 70, 699
P2d 168 (1985). In doing so, we proceed differently than
this court did in State v. Barrett, 350 Or 390, 255 P3d 472
(2011). In Barrett, the victim claimed a violation of her con-
stitutional right to advance notice of, and the right to be
present at, the critical stages of a criminal prosecution.7
Or Const, Art I, § 42(1)(a). Although the victim in Barrett
alleged that her statutory rights had been violated, the
statutes that she cited provided rights duplicating those set
out in the constitution; those statutes were not necessary to
the victim’s constitutional argument. The trial court held
that the state had violated the victim’s constitutional and
statutory rights, but did not provide a remedy for those vio-
lations. Id. at 396-97. Therefore, the trial court denied the
victim’s claim.
On review, this court began its analysis with the
victim’s claim that her constitutional rights had been vio-
lated. The court explained that, in enacting ORS 147.500 to
147.550, the legislature had “created a clear and expedited
7
Article I, section 42(1), provides, in part, that
“the following rights are hereby granted to victims in all prosecutions for
crimes and in juvenile court delinquency proceedings:
“(a)  The right to be present at and, upon specific request, to be informed
in advance of any critical stage of the proceedings held in open court when the
defendant will be present, and to be heard at the pretrial release hearing and
the sentencing or juvenile court delinquency disposition[.]”
Cite as 354 Or 236 (2013) 243
procedural path for a victim to assert claims for the violation
of her constitutional rights, both at trial and on appeal,” but
that the procedural path to a statutory remedy was “less
clear.” Id. at 398-99. Therefore, the court departed from its
usual approach and, on the merits, concluded that the victim
had proved a violation of Article I, section 42(1)(a), and was
entitled to the remedy that she sought—a resentencing hear-
ing at which she could appear. Id. at 407. Given those con-
clusions, there was no need for the court to consider, in addi-
tion, whether a statutory violation had occurred.
This case is different. Here, Article I, section 42,
does not explicitly require, as ORS 137.106(1)(a) does, that
a trial court award restitution in “the full amount of the
victim’s economic damages.” Rather, Article I, section 42,
provides that a crime victim is entitled to “receive prompt
restitution from the convicted criminal who caused the vic-
tim’s loss or injury.” Petitioner’s argument is that we should
interpret that constitutional right to incorporate the statu-
tory requirement or, alternatively, that we should review
the trial court’s decision to determine whether the trial
court committed statutory error in ordering restitution that
constitutes only 10 percent of petitioner’s economic damages.
If ORS 147.500 to 147.550 permits the latter review, we need
not take up an issue of constitutional interpretation that our
“salutary sense of judicial restraint” counsels us to avoid. See
Barrett, 350 Or at 397. Thus, we adhere to our “first things
first” approach in this proceeding and analyze our authority
to consider, in this proceeding, whether the trial court com-
mitted statutory error.
In that regard, it is important to remember that the
question of the trial court’s obligation to enter restitution in
the “full amount” of petitioner’s economic damages first arose
when the state proposed a supplemental judgment seeking
restitution in that amount. The parties—at that time, the
state and defendant—fully briefed the issue, and the state
took the position that petitioner takes in this appeal—that
ORS 137.106(1) requires restitution in full, that the amount
recoverable in a civil action is irrelevant to a restitution
award, and that the trial court was precluded from reducing
the restitution award to reflect the extent of a victim’s “fault.”
The trial court disagreed with the state’s argument and
244 State v. Algeo
entered judgment in an amount equal to 10 percent of peti-
tioner’s economic loss. The state did not appeal to the Court
of Appeals from that supplemental judgment, although it
was permitted to do so. See ORS 138.060(1)(e) (providing
for appeal to the Court of Appeals); State v. Ceballos, 235 Or
App 208, 210, 230 P3d 954 (2010) (state’s appeal from sup-
plemental judgment of restitution). Instead, petitioner filed
a claim in the trial court alleging a violation of her consti-
tutional right, and the trial court entered an order denying
that constitutional claim. It is that order that is before us on
review.
Petitioner nevertheless contends that this court is
authorized to consider whether the trial court committed
statutory, as opposed to constitutional, error in entering that
judgment. Petitioner argues that no statute expressly pro-
hibits this court from that exercise of jurisdiction. In fact,
petitioner notes, ORS 147.535(3) does not limit this court’s
jurisdiction to constitutional issues. Rather, it provides that
“the jurisdiction of the Supreme Court is limited to the order
for which appellate review is sought.” Thus, petitioner sug-
gests, when a victim seeks review of such an order on statu-
tory as well as constitutional grounds, this court may address
both issues.
In our view, the statute to which petitioner refers—
ORS 147.535—resolves the issue that petitioner raises, but
resolves it against her.8 The only jurisdiction that that stat-
ute grants is jurisdiction to review the order of a trial court
8
ORS 147.535 provides, in part, that,
“(1)(a)  Notwithstanding any other provision of law and except as provided
in paragraph (b) of this subsection, appellate review of an order issued under
ORS 147.515, 147.520, or 147.530 shall be solely as provided in this section
and ORS 147.537, 147.539, and 147.542.
“(b)  A defendant who seeks to appeal an order issued under ORS 147.515,
147.520 or 147.530 must do so in the manner provided for appeals in ORS
chapter 138. The provisions of this section and ORS 147.537, 147.539 and
147.542 do not apply to an appeal under ORS chapter 138.
“* * * * *
“(2) Jurisdiction for appellate review of an order issued under ORS
147.515, 147.520 or 147.530 is vested originally and exclusively in the Supreme
Court.
“(3) Subject to ORS 147.542, the jurisdiction of the Supreme Court is
limited to the order for which appellate review is sought and the trial court
retains jurisdiction over all other matters in the criminal proceeding.
Cite as 354 Or 236 (2013) 245
denying a petitioner’s constitutional claim. In granting crime
victims an opportunity for direct review of such orders in
this court, the legislature has permitted crime victims a
unique procedural path. See Barrett, 350 Or at 398 (expedited
procedural path provided by ORS 147.517, 147.530(5), and
147.535(2) designed to allow victims to assert claims for vio-
lation of constitutional rights). Other judgments or post-
judgment orders in criminal cases generally are appealable
only to the Court of Appeals. See ORS 138.040, 138.050,
138.053, 138.057, 138.060, and 147.535(1)(b) (governing
appeals to the Court of Appeals in criminal cases and stating
persons who may appeal and under what circumstances).
Thus, in this case, the state was permitted to appeal the
supplemental judgment that the trial court entered to the
Court of Appeals. Had the state taken such an appeal, it could
have argued that the trial court had committed statutory
error in entering the supplemental judgment in an amount
less than petitioner’s full economic damages. However, the
legislature has limited direct review in this court under ORS
147.535(3) to considering whether the trial court committed
constitutional error when it denied petitioner’s claim that
her constitutional rights were violated.9
That does not mean, however, that ORS 137.106 is
completely immaterial to our task. Petitioner contends that
Article I, section 42(1)(d), incorporates the requirements of
ORS 137.106, and we therefore are required to analyze that
statute in the course of analyzing petitioner’s constitutional
claim. We turn now to that task and consider whether
Article I, section 42(1)(d), guarantees a victim the right to
“(4) Appellate review of an order issued under ORS 147.515, 147.520 or
147.530 shall be as provided in:
“(a)  ORS 147.537 if the order was issued under ORS 147.520 or 147.530
in a criminal proceeding in which a defendant is charged with a felony or a
person Class A misdemeanor * * *.
“(b) ORS 147.539 in all appeals arising under ORS 147.500 to 147.550
except those described in paragraph (a) of this subsection.”
9
We emphasize that the legislature is not foreclosed from making a different
choice. The legislature has the authority, if it wishes to exercise it, to permit
victims to file claims in the trial court alleging violation of their statutory rights,
to permit trial courts to decide those claims, and to permit the Court of Appeals or
this court to consider appeals of such decisions. Such a path to appellate review
is not constitutionally prohibited; it simply is not provided by ORS 147.535, the
statute on which petitioner relies in this case.
246 State v. Algeo
receive the “full amount of [her] economic damages” required
by ORS 137.106(1)(a).
Because Article I, section 42, was enacted by the
voters through ballot measure, we must consider the voters’
intent. Ecumenical Ministries v. Oregon State Lottery Comm.,
318 Or 551, 559, 871 P2d 106 (1994). We focus first on the
text and context of Article I, section 42(1)(d), but also may
consider the measure’s history, should it appear useful to
our analysis. Cf. State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009).
The text of Article I, section 42(1)(d), grants a victim
the right to receive prompt restitution. Section 42 does not
define the term “restitution,” and, although it provides that
a victim “shall have remedy by due course of law for vio-
lation of a right established in [that] section,” it does not
further describe that remedy. Or Const, Art I, § 42(3)(a).
Nevertheless, both petitioner and the state argue, for different
reasons, that Article I, section 42(1)(d), confers a right to
receive the “full amount” of a victim’s economic damages.
Petitioner suggests that that meaning is captured by the
term “restitution” itself, because the “ordinary meaning” of
“restitution” is to “restor[e] someone to a position he occupied
before a particular event.” Alternatively, petitioner argues
that, because Article I, section 42, permits the legislature to
“effectuat[e]” victims’ constitutional rights, it confers the right
to receive “restitution” as that term is statutorily defined.
The state makes a somewhat different argument.
It contends that Article I, section 42(1)(d), grants a crime
victim a “procedural” right to receive promptly the resti-
tution that a criminal defendant statutorily is required to
pay. Alternatively, the state argues that, when the voters
amended Article I, section 42, in 2008, they intended the
term “restitution” to have its contemporaneous statutory
meaning; that is, a right to receive restitution as that term
was defined by ORS 137.106 in 2008.10
We begin with petitioner’s suggestion that, in using
the term “restitution,” the voters intended to give that term
its ordinary meaning and to require that a victim be fully
10
In 2008, as today, ORS 137.106 required that a trial court judge impose resti-
tution in the “full amount” of a victim’s economic damages.
Cite as 354 Or 236 (2013) 247
restored or returned to the condition that he or she had
enjoyed prior to the crime. Although petitioner certainly is
correct that the ordinary meaning of the term “restitution”
includes the idea of repayment,11 we are not persuaded that
the voters intended that term to require repayment “in full.”
In 1976, before Article I, section 42, was adopted,
this court had interpreted the original version of the crimi-
nal restitution statute, former ORS 137.540(10) (1975), to per-
mit a trial court to award a victim an amount of restitu-
tion that was less than the amount of the victim’s loss. State
v. Stalheim, 275 Or 683, 552 P2d 829 (1976). Former ORS
137.540(10) authorized a sentencing court to require, as a
condition of probation, that the defendant “[m]ake reparation
or restitution to the aggrieved party for the damage or loss
caused by [the] offense, in an amount to be determined by
the court.” (Emphases added.) The court interpreted the
term “restitution” to mean “the return of a sum of money, an
object, or the value of an object which a defendant wrongfully
obtained in the course of committing the crime.” Id. at 687-
88. The court interpreted the term “reparation” to have a
broader meaning—“repairing” or “restor[ing].” However, the
court held that both terms encompassed only “reimbursement
for the victim’s liquidated or easily measurable damages
resulting from the charged offense,” id. at 688, and noted
that it “[did] not mean to imply that a judge could not impose
restitution or reparation in an amount less than the victim’s
loss.” Id. at 688 n 8.
In 1999, when the voters enacted Article I, section 42,
the criminal restitution statute—ORS 137.106 (1999), amended
by Or Laws 2003, ch 670, § 1—continued to permit trial courts to
impose restitution in amounts that were less than a victim’s
full economic damages.12 At that time, the term “restitution”
was statutorily defined as the “full, partial or nominal pay-
ment of pecuniary damages to a victim.” ORS 137.103(3) (1999).
“Pecuniary damages,” in turn, were limited to “special
11
Petitioner cites Hughey v. United States, 495 U.S. 411, 416, 110 S. Ct. 1979,
109 L. Ed. 408 (1990), for the proposition that “the ordinary meaning of ‘restitution’
is restoring someone to the position he occupied before the particular event.”
12
Although the Oregon legislature made various amendments to the criminal
restitution statute following Stalheim, see State v. Hval, 174 Or App 164, 174-76,
25 P3d 958 (2001) (providing overview of amendments), those amendments did not
require the court to impose restitution in the amount of a victim’s full economic
damages.
248 State v. Algeo
dam-ages *  * which a person could recover against the
*
defendant in a civil action” arising out of the defendant’s criminal
activities. ORS 137.103(2) (1999). Whether restitution was
imposed, and in what amount, was entirely within the sen-
tencing court’s discretion. ORS 137.106(1) (1999) (making
restitution a discretionary part of a defendant’s sentence).
Thus, before the adoption of Article I, section 42, the legis-
lature had used the term “restitution” to mean repayment,
but not to mean, necessarily, repayment of economic damages
“in full.” We are not persuaded that the ordinary meaning
of the term “restitution” incorporates the concept of repay-
ment of economic damages “in full” or that the voters
intended the term “restitution” to carry that meaning when
they enacted Article I, section 42.
We turn now to the argument, advanced by both
petitioner and the state, that Article I, section 42, grants
crime victims a right to receive the restitution required
by statute. Petitioner bases her argument on the text of
Article I, section 42(3)(c), which states that the legislature
may “provide by law for further effectuation” of the rights
and remedies set forth in that subsection. (Emphasis added.)
The legislature “effectuated” Article I, section 42, petitioner
argues, by amending ORS 137.106 to require that trial
courts impose restitution in the “full amount” of a victim’s
economic damages. Therefore, petitioner asserts, that statu-
tory requirement has become an element of a victim’s con-
stitutional right to “receive prompt restitution.” In a related
vein, the state contends that the voters who adopted
Article I, section 42, would have understood that the statu-
tory meaning of the term “restitution” had changed over time
and would continue to do so. In the state’s view, the fact that
Article I, section 42, did not define the term “restitution”
suggests that the voters intended to create a procedural
right that would ensure that victims receive promptly the
amount of restitution to which they were statutorily entitled
at the time that restitution was imposed.
Before we consider those arguments, it is important
to clarify the difference between a procedural and a substan-
tive right to receive restitution. A right to receive, promptly,
whatever restitution a trial court orders is procedural in
Cite as 354 Or 236 (2013) 249
nature. A right to receive, promptly, payment of a specific
amount, or payment measured by a specific standard, is both
a substantive and a procedural right. Petitioner argues for
what she recognizes is a substantive right. She contends that
the constitution requires the prompt payment of restitution
in a specific amount—that is, the amount required by stat-
ute at the time that restitution is ordered. The state also
contends that a victim has a constitutional right “to promptly
receive the restitution that a convicted defendant is required
to pay under current restitution statutes” (emphasis added),
but it describes its interpretation as purely procedural.13
We disagree with the state’s characterization of its
argument. The state’s interpretation of Article I, section 42,
would permit a victim to claim not only a procedural error
should a trial court fail to award restitution “promptly,” but
also substantive error should a trial court fail to award resti-
tution in a particular sum—the sum mandated by statute.
Because the state, like petitioner, argues that the trial court
committed error by awarding petitioner less than the “full
amount” of her economic damages, we conclude that the
state advances the same argument as does petitioner, albeit
on different grounds. For the following reasons, we reject
both parties’ contentions.
The logical result of the parties’ arguments is that,
as used in Article I, section 42, the term “restitution” may
have a different substantive meaning depending on how that
term is defined by statute over time. Thus, in 1999, when the
trial court had statutory discretion to award restitution that
was full, partial, or nominal, a crime victim’s constitutional
right also would have been limited accordingly. But, in
2012, the constitution would have granted victims the right
to receive restitution in the “full amount” of the victims’
economic damages—the amount required by ORS 137.106
at that time. Following the parties’ arguments, the meaning
of Article I, section 42, would change, not as a result of the
13
At another point in its brief, the state argues that the voters intended to
enshrine a victim’s right “to quickly receive whatever restitution was imposed.”
(Emphases added.) However, because the state also argues for the interpretation
we discuss above, and because the state does not claim that petitioner did not
receive “promptly” the restitution that the trial court imposed, we limit our analy-
sis to that addressed above.
250 State v. Algeo
people’s amendment of the constitution, but by legislative
action. Such an interpretation arguably could raise a question
of constitutional magnitude, because Article XVII, section 1,
of the Oregon Constitution, requires proposed amendments
to the Oregon Constitution to be referred “to the people for
their approval or rejection.”
We need not address that potential issue in this case,
however, as we do not glean from either the text or context
of Article I, section 42, an intent to make the meaning of the
term “restitution” dependent on future statutory changes.
First, we reject petitioner’s argument that that intent is
evidenced by the grant of legislative authority to “effectuate”
provisions of Article I, section 42. Subsection (3) of section 42
provides that “[e]very victim * * * shall have remedy by due
course of law for violation of a right established in this
section,” and subsection 42(3)(b) provides that “[a] victim
may assert a claim for a right established in this section
in a pending case, by a mandamus proceeding if no case is
pending or as otherwise provided by law.” Subsection (3)(c)
states that the legislature may “provide by law for further
effectuation of the provisions of this subsection.” (Emphasis
added.) The subsection referenced is subsection (3)—the
subsection that pertains to remedies for violating the rights
set forth in subsection (1). Thus, the authority that Article I,
section 42(3)(c), grants is authority to further spell out or
enable the remedies that the constitution provides and to
specify procedural means of obtaining them. The voters made
that meaning clear by providing in subsection 42(3)(c) two
examples of actions that the legislature may take pursuant to
its authority to “effectuate” under Article I, section 42(3)(c),
both of which are procedural in nature: the authority to
provide “expedited and interlocutory consideration of claims
for relief,” and the authority to establish “reasonable [time]
limitations.” By its terms, Article I, section 42, does not grant
the legislature authority to define or determine the substan-
tive rights set forth in subsection (1) of section 42.
Nor does the fact that the voters who adopted
Article I, section 42, may have been aware that the legislature
had changed the nature of a trial court’s authority to grant
restitution over time convince us that the voters intended to
Cite as 354 Or 236 (2013) 251
grant constitutional stature to variable statutory rights. We
agree with the state that the voters may not have intended
to fix a victim’s right to restitution to the 1999 statutes, but
that does not mean that the voters intended to give the word
“restitution” a later-enacted statutory meaning.
For the reasons stated, we reject the parties’ argu-
ments that the term “restitution” as used in Article I, section
42(1)(d), confers a substantive right to receive the “full
amount” of a victim’s economic damages, either because the
term “restitution” carries that meaning or because the voters
intended that term to incorporate its statutory meaning at
the time that restitution is imposed. We now consider the
state’s alternative argument that, when the voters amended
Article I, section 42, in 2008, they intended that “restitution”
be defined according to the statutory definition of that term
at that time. The state suggests that, if Article I, section
42(1)(d), previously had created a right to restitution that
was “illusory” because it was tied to the entirely discretionary
statutory scheme in place in 1999, then the purpose of the
2008 amendments to Article I, sections 42 and 43, was to
“rectif[y] that situation.”
We can dispense with that argument summarily. In
2008, the voters amended Article I, section 42, to provide
victims with a “remedy by due course of law” for violation of
their existing constitutional rights. Or Const, Art I, § 42(3)(a).
The fact that the voters intended to guarantee a remedy
for the violation of existing constitutional rights does not
indicate an intent to change the substance of those rights
themselves. We conclude that the 2008 amendments to
Article I, section 42, do not evince voter intent to provide a
constitutional right to the “full amount” of a victim’s eco-
nomic damages, as provided by Oregon statute.
In reaching that conclusion, we do not decide whether
the constitutional right to “receive prompt restitution” is
purely procedural or instead carries a substantive element
and requires restitution in some amount or as measured by
some standard. That is a question for another day, because,
in this case, petitioner does not contend that Article I,
section 42(1)(d), entitles her to receive a sum other than the
“full amount” of her economic damages as required by ORS
252 State v. Algeo
137.106. Petitioner does not contend, for example, that the
constitution entitles her to a “substantial” sum in restitution
to compensate her for her loss. See Howell v. Boyle, 353 Or
359, 362, 298 P3d 1 (2013) (discussing constitutional “right
to remedy” in terms of whether remedy is “substantial”). We
therefore limit our holding to that necessary to decide this
case: Article I, section 42(1)(d), does not grant petitioner a
right to “restitution” in the “full amount” of her economic
damages as that term is defined in ORS 137.106. This court
does not have jurisdiction to determine the additional ques-
tion whether the trial court violated petitioner’s statutory
rights when it awarded restitution in an amount limited to
10 percent of petitioner’s economic damages.
The order of the circuit court is affirmed.