State v. Yerkey , 2022 Ohio 4298 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Yerkey, Slip Opinion No. 2022-Ohio-4298.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
Slip Opinion No. 2022-Ohio-4298THE STATE OF OHIO, APPELLANT, v. YERKEY, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Yerkey, Slip Opinion No. 2022-Ohio-4298.]
Marsy’s Law, Article I, Section 10a of the Ohio Constitution—Restitution—R.C.
2929.18(A)(1)—Statutory meaning of restitution was not altered or
expanded by Marsy’s Law—Wages lost by crime victim as a result of
victim’s voluntarily attending criminal-court proceedings do not qualify for
restitution from offender, because such losses are not a direct and
proximate result of the commission of the offense.
(No. 2020-1392—Submitted September 22, 2021—Decided December 5, 2022.)
APPEAL from the Court of Appeals for Columbiana County,
No. 19 CO 0044, 2020-Ohio-4822.
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SUPREME COURT OF OHIO
BRUNNER, J.
I. INTRODUCTION
{¶ 1} This matter calls for us to decide whether a crime victim is entitled to
receive restitution from an offender for wages lost as a result of the victim’s choice
to exercise her right to attend court hearings. Applying both the Ohio
Constitution’s victims’ rights amendment, Article I, Section 10a (known as
“Marsy’s Law”), and the relevant statutes, we conclude that Marsy’s Law provides
a right to “full and timely restitution” but did not alter the meaning of “restitution”
in Ohio law. Restitution in Ohio is limited to economic losses suffered by the
victim as a direct and proximate result of the commission of the offense. Therefore,
unless the loss of wages is directly and proximately caused by the offense (as, for
example, when a victim misses time at work because of an injury to the victim
caused by the offense), lost wages are not compensable as restitution. Accordingly,
we affirm the judgment of the Seventh District Court of Appeals.
II. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 3, 2018, an officer filed a complaint in the Columbiana
County Municipal Court alleging that appellee, John Yerkey, had violated a
protection order when he went to the home of his ex-wife and refused to leave. In
addition, Yerkey had apparently sent her email messages and items through the
mail. A short time later, on August 1, 2018, a second complaint was filed alleging
that Yerkey had once again violated the order, by driving by his ex-wife’s home.
On August 8, 2018, a third complaint was filed based on Yerkey’s attempt to
connect with his ex-wife via social media and to share his location with her.
{¶ 3} Because Yerkey had previously been convicted of violating a
protection order, the municipal-court cases were soon indicted as two cases in the
Columbiana County Court of Common Pleas: case Nos. 2018 CR 263 and 2018 CR
307. The indictment in case No. 2018 CR 263 was filed on August 16, 2018, and
involved a single fifth-degree felony count of violating a protection order. The
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indictment in case No. 2018 CR 307 was filed on September 14, 2018, and
consisted of two fifth-degree felony counts of violating a protection order. Yerkey
initially pled “not guilty” to all charges on September 27, 2018.
{¶ 4} However, on March 1, 2019, Yerkey entered into a plea agreement
with appellant, the state of Ohio, whereby he would plead guilty to two of the three
fifth-degree felony charges and the state would recommend community-control
sanctions. On March 26, 2019, the trial court accepted Yerkey’s guilty pleas. It
appears to be undisputed that the factual bases for the charges to which Yerkey pled
guilty were his driving by the victim’s house on July 31, 2018, and sharing his
location with her on social media via a “find friends request” on August 7, 2018.
Two months after Yerkey’s pleas were accepted, the trial court sentenced him to a
term of four years of community control with intensive supervision for each count,
with the terms to run concurrently, and noted that it would later address the issue
of restitution, giving the victim 30 days to provide documentation to the prosecutor.
{¶ 5} On September 27, 2019, the trial court held a restitution hearing. The
victim testified that she was seeking restitution for lost wages relating to seven full
days’ worth of work that she missed in connection with attending hearings for the
criminal cases. She testified that she worked for Big Lots, earning $29.14 an hour,
and that the total of her lost wages amounted to $1,615. She submitted a
handwritten calculation showing how she had reached that total.1 In addition to the
lost wages, the victim also requested nearly $20,000 in attorney fees, medical bills,
1. The document is vague regarding the hours of work the victim missed and is inconsistent with
her testimony regarding her hourly wage. The victim testified that she worked for Big Lots, earning
$29.14 an hour, and that the total amount of her lost wages was $1,615. The formula used in the
document, however, without explanation for the difference, calculates the lost wages by using a
daily rate of $230.76 (rather than $233.12, which would be her daily rate if she were earning $29.14
an hour, assuming an eight-hour workday). Her written calculation also lists 11 specific dates;
though it might be 12, depending on whether the notation “Aug/Sept 16” constitutes two dates or
whether it is meant to convey uncertainty about whether the missed date was August 16 or
September 16. No clarification of the hours of work missed or explanation for the inconsistency in
her hourly wage was offered.
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and counseling bills, related to treatment and professional services sought in
connection with the divorce and disintegration of her relationship with Yerkey. The
trial court orally indicated that expenses or costs incurred prior to the criminal
conduct at issue in the cases or not proximately caused by the criminal cases, could
not be awarded as restitution. But it expressed the belief that lost wages could be
“arguably directly and proximately related to the cases.” It took the matter under
advisement and ultimately issued a written entry ordering $1,615 in restitution for
the lost wages of the victim.
{¶ 6} The Seventh District reversed the restitution order. It concluded that
Marsy’s Law reaffirmed the victim’s right to be present at all public proceedings
and to receive full and timely restitution. 2020-Ohio-4822, 159 N.E.3d 1232,
¶ 24-26. However, it reasoned that such rights do not exist in a vacuum and still
need to be construed within the valid and unchanged statutory framework
governing restitution in Ohio. Id. at ¶ 26. It explained that losing wages while
voluntarily attending court hearings is not a direct and proximate result of the
commission of the offense. Id. It then concluded that since the amount of
restitution cannot exceed the actual economic loss suffered by the victim “ ‘as a
direct and proximate result of the commission of an offense,’ ” the lost wages could
not qualify for restitution. Id., quoting R.C. 2929.01(L).
{¶ 7} The state appealed, asserting that because crime victims have a
constitutional right to full and timely restitution and to be present at court
proceedings, they are entitled to restitution for losses (including lost wages)
incurred during the prosecution of offenses. We accepted jurisdiction, 161 Ohio
St.3d 1420, 2021-Ohio-254, 161 N.E.3d 713, and now affirm the Seventh District.
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III. DISCUSSION
A. Marsy’s Law
{¶ 8} In November 2017, the voters of this state passed an amendment to
the victim’s rights provision of the Ohio Constitution. That amendment, effective
February 5, 2018, provides:
(A) To secure for victims justice and due process throughout
the criminal and juvenile justice systems, a victim shall have the
following rights, which shall be protected in a manner no less
vigorous than the rights afforded to the accused:
***
(2) upon request, to reasonable and timely notice of all
public proceedings involving the criminal offense or delinquent act
against the victim, and to be present at all such proceedings;
(3) to be heard in any public proceeding involving release,
plea, sentencing, disposition, or parole, or in any public proceeding
in which a right of the victim is implicated;
***
(7) to full and timely restitution from the person who
committed the criminal offense or delinquent act against the victim;
***
(E) All provisions of this section shall be self-executing and
severable, and shall supersede all conflicting state laws.
Article I, Section 10a, Ohio Constitution. This amendment is known as Marsy’s
Law.
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B. Method of Construing Voter-Approved Constitutional Provisions
{¶ 9} Marsy’s Law was approved by direct vote of Ohio’s electors, and it is
well established how we construe such provisions:
In construing constitutional text that was ratified by direct
vote, we consider how the language would have been understood by
the voters who adopted the amendment. Castleberry v. Evatt, 147
Ohio St. 30, 33, 67 N.E.2d 861 (1946); see also State ex rel. Sylvania
Home Tel. Co. v. Richards, 94 Ohio St. 287, 294, 114 N.E. 263(1916) (when interpreting the Ohio Constitution, “[i]t is the duty of
the court to ascertain and give effect to the intent of the people”).
The court generally applies the same rules when construing the
Constitution as it does when it construes a statutory provision,
beginning with the plain language of the text, State v. Jackson, 102
Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 14, and
considering how the words and phrases would be understood by the
voters in their normal and ordinary usage, District of Columbia v.
Heller, 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d 637(2008).
Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167,
¶ 22. In cases in which the language of the provision is unclear or ambiguous, our
analysis may also include a review of the “history of the amendment and the
circumstances surrounding its adoption, the reason and necessity of the amendment,
the goal the amendment seeks to achieve, and the remedy it seeks to provide.” Id.Also, we presume that the voters were aware of the laws in existence at the time
they voted to adopt the constitutional amendment. See id. at ¶ 28; State v. Carswell,
114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547,
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¶ 6. It is also axiomatic that the words of the provision passed, except when
otherwise indicated, are to be given their ordinary meaning. Knab at ¶ 22. So the
question is, what would a voter who knew the then-existing law have understood
the Marsy’s Law provision to mean?
C. Ohio Statutes and Constitution Prior to Marsy’s Law
{¶ 10} Before the enactment of Marsy’s Law, there was a more compact
constitutional provision regarding the rights of victims of crimes that stated:
Victims of criminal offenses shall be accorded fairness,
dignity, and respect in the criminal justice process, and, as the
general assembly shall define and provide by law, shall be accorded
rights to reasonable and appropriate notice, information, access, and
protection and to a meaningful role in the criminal justice process.
This section does not confer upon any person a right to appeal or
modify any decision in a criminal proceeding, does not abridge any
other right guaranteed by the Constitution of the United States or
this constitution, and does not create any cause of action for
compensation or damages against the state, any political subdivision
of the state, any officer, employee, or agent of the state or of any
political subdivision, or any officer of the court.
Former Article I, Section 10a, Ohio Constitution (effective Nov. 8, 1994, to Feb. 4,
2018).
{¶ 11} Among the rights that the General Assembly had “define[d] and
provide[d] by law,” were statutes governing restitution. See R.C. 2929.18(A)(1);
R.C. 2929.28(A)(1). In each of those provisions, the amount of restitution is
determined “based on the victim’s economic loss” and “shall not exceed the amount
of the economic loss suffered by the victim as a direct and proximate result of the
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commission of the offense.” R.C. 2929.18(A)(1); R.C. 2929.28(A)(1). “Economic
loss” is defined in R.C. 2929.01(L) as “any economic detriment suffered by a victim
as a direct and proximate result of the commission of an offense,” specifically
including “any loss of income due to lost time at work because of any injury caused
to the victim * * * as a result of the commission of the offense.”
D. Marsy’s Law Is Not in Conflict with Ohio Statutes on Restitution
{¶ 12} Marsy’s Law provides victims with the right “to full and timely
restitution from the person who committed the criminal offense or delinquent act
against the victim.” (Emphasis added.) Article I, Section 10a(A)(7), Ohio
Constitution. Marsy’s Law also states that its provisions are “self-executing and
severable, and shall supersede all conflicting state laws.” (Emphasis added.)
Article I, Section 10a(E). However, Marsy’s Law does not specify, explicitly or
even by implication, for which losses victims are entitled to receive “restitution.”
Thus, no portion of Marsy’s Law “conflicts” with the restitution statutes such that
they are “supersede[d],”2 Article I, Section 10a(E). Consequently, the statutes
governing “restitution” are still used to determine which losses qualify for
restitution.
{¶ 13} And since the adoption of Marsy’s Law, both this court and other
courts in Ohio have continued to determine the amount of restitution based on the
economic loss suffered by the victim as a direct and proximate result of the
commission of the offense. See, e.g., Knab, 162 Ohio St.3d 623, 2020-Ohio-5219,
166 N.E.3d 1167, at ¶ 19; Cleveland v. Rudolph, 8th Dist. Cuyahoga No. 111128,
2022-Ohio-2363, ¶ 16-17; State v. Dent, 11th Dist. Lake No. 2020-L-110, 2021-
2. Reading Marsy’s Law as not conflicting with the restitution statutes is supported by the fact that
the initiative petition for the Marsy’s Law amendment specifically stated that “the amendment
would not prohibit the General Assembly from enacting laws that are consistent with the
amendment, nor would it negate existing laws unless they conflict with the amendment.” Available
at https://www.ohioattorneygeneral.gov/getattachment/ad275a4b-7eb7-4a63-b04e-
a75b43a42b97/Ohio-Crime-Victims-Bill-of-Rights.aspx (accessed Dec. 7, 2021)
[https://perma.cc/VN4Z-V5UH].
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Ohio-2551, ¶ 29-30; State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-
547, ¶ 23; State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-Ohio-4943, ¶ 12-
13; Yerkey, 2020-Ohio-4822, 159 N.E.3d 1232, ¶ 26 (7th Dist.); State v. Goff, 2020-
Ohio-1474, 153 N.E.3d 899, ¶ 3 (1st Dist.). Even in State v. Oliver, 2021-Ohio-
2543, 176 N.E.3d 1054 (12th Dist.), in which the Twelfth District Court of Appeals
held that Marsy’s Law superseded statutory provisions that limit restitution based
on consideration of the defendant’s pecuniary circumstances, the court explicitly
recognized that the amount of restitution continued to be limited to the economic
loss that had been directly and proximately caused by the commission of the
offense. Id. at ¶ 7-8, 67-69.
{¶ 14} The state makes much of the phrase “full and timely restitution,”
apparently believing that the adjectives “full” and “timely” vastly expand what
losses qualify for “restitution.” However, the meanings of the terms “full” and
“timely” do not justify such an inference. “Full” is defined as “[c]omplete, perfect;
entire, whole; thoroughgoing.” Oxford English Dictionary,
https://www.oed.com/view/Entry/75327 (accessed Nov. 20, 2022). But “full” does
not change the nature of the thing being described, unless the thing is described in
the first instance as partial, and here, it is not. “Timely” means, “[o]f an action or
circumstance: done or occurring sufficiently early or in good time; prompt.” Id.,
https://www.oed.com/view/Entry/202120 (accessed Nov. 20, 2022). “Timely” also
does not redefine the nature of the noun it modifies—a timely payment is still a
payment. Hence, “full and timely restitution” is still “restitution”; it is simply
restitution that is completely accomplished in a prompt manner.
{¶ 15} Nothing in Marsy’s Law explicitly or implicitly changes what losses
qualify for restitution in Ohio. Consequently, “restitution” continues to mean
compensation for economic losses or economic detriment suffered by the victim
“as a direct and proximate result of the commission of the offense,” see R.C.
2929.18(A)(1); R.C. 2929.28(A)(1); R.C. 2929.01(L). In relation to this particular
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case, it bears noting that the statutory definition for “economic loss” explicitly
includes “any loss of income due to lost time at work because of any injury caused
to the victim” but not income lost for reasons other than injury. R.C. 2929.01(L).
E. Causation in this Case
{¶ 16} Generally speaking, a consequence is a direct and proximate result
of an act when the consequence is foreseeable and is produced by the natural and
continuous sequence of events following the act. See, e.g., Strother v. Hutchinson,
67 Ohio St.2d 282, 286-287, 423 N.E.2d 467 (1981). In the context of restitution,
we have previously held that wages paid by a company to its employees to
investigate a theft from the company and thereby assist in the prosecution of the
perpetrator were not compensable as restitution, because the payment of wages was
not a direct and proximate result of the commission of the offense. State v. Lalain,
136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423. Specifically, in Lalain, a
former employee of a company was prosecuted for retaining items of physical and
intellectual property after resigning from the company. Id. at ¶ 6-10. Although all
the property was eventually returned, the company “sought restitution of $55,456
‘for the time spent by its employees in support of [the state’s] case’ and an
additional $7,665 for the report ‘to provide the County Prosecutor’s Office with an
accurate valuation of the property that was recovered.’ ” Id. at ¶ 25. We reasoned,
“[T]hese expenditures are not the direct and proximate result of the commission of
the theft offense; rather, they are consequential costs incurred subsequent to the
theft to value the property that had been taken from and later returned to [the
company].” Id.
{¶ 17} As was true in Lalain, losses of the sort claimed by the victim in this
case do not flow as a natural and continuous consequence from the commission of
the offense such that they may be considered “economic loss[es] suffered by the
victim as a direct and proximate result of the commission of the offense,” R.C.
2929.18(A)(1); R.C. 2929.28(A)(1). The victim has demonstrated no economic
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loss from Yerkey’s driving by her house or his sharing his location with her through
social media. Nor has she alleged that she suffered any injury such that she could
claim “loss of income due to lost time at work because of any injury.” R.C.
2929.01(L).
{¶ 18} Against this backdrop, several amici argue that failing to use
restitution sanctions to cover all a victim’s costs runs counter to public policy. No
one on this court thinks that victims should not be made whole. But to what extent
court-ordered restitution as part of a criminal case may be used to make a victim
whole is a matter determined by statute and the Constitution, as explained above.
Moreover, it is important to recall that restitution through the criminal justice
system is not the only recourse for crime victims. A crime victim has the same
access to the civil justice system as anyone who has been the victim of a tort and,
moreover, may seek recovery for his or her losses from the crime-victims’
compensation funds administered by the Ohio Attorney General and the Court of
Claims,3 which is helpful in cases in which the perpetrator is judgment proof. There
is also a countervailing policy consideration—if restitution were to be expanded to
include economic detriments that were not “direct and proximate result[s] of the
commission of the offense,” R.C. 2929.28(A)(1); R.C. 2929.18(A)(1), we would
risk mutating sentencing hearings throughout the state into civil trials of all
grievances the victim may have against the offender, regardless of their relation to
the crimes at issue.4 For the sake of prompt criminal-justice proceedings across the
state, that is a pitfall to avoid.
3. See https://ohiocourtofclaims.gov/crime-victims-compensation/ (accessed June 22, 2022)
[https://perma.cc/2M7N-KFKK]; R.C. 2929.32; https://www.ohioattorneygeneral.gov/Individuals-
and-Families/Victims/Apply-for-Victims-Compensation (accessed June 22, 2022)
[https://perma.cc/X82B-9EGD].
4. In fact, this is exactly what could have occurred in this case because, in addition to the lost wages,
the victim sought (but was not awarded) nearly $20,000 in attorney fees, medical bills, and
counseling bills, related to treatment and professional services sought in connection with the divorce
from and disintegration of her relationship with Yerkey before the criminal acts in question even
occurred.
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IV. CONCLUSION
{¶ 19} The statutory meaning of restitution was not altered or expanded by
Marsy’s Law. Crime victims should receive restitution from those whose crimes
have directly and proximately caused them to suffer economic loss or detriment.
This court’s holding in Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d
423, and the basic concept of direct and proximate causation prevent the lost wages
sought by the victim in this case from being assessed against Yerkey as restitution.
Although we acknowledge the need for victims to be made whole, victims have
other avenues for recovery beyond restitution. Holding otherwise and expanding
restitution would be contrary to precedent and statutory law and would risk turning
sentencing hearings into civil trials. For these reasons, we affirm the judgment of
the Seventh District Court of Appeals.
Judgment affirmed.
O’CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.
DEWINE, J., dissents, with an opinion joined by KENNEDY and FISCHER, JJ.
_________________
DEWINE, J., dissenting.
{¶ 20} In 2017, Ohio voters overwhelmingly approved changes to the Ohio
Constitution designed to significantly expand the rights of crime victims. Among
the new constitutional rights granted to victims is the right “to full and timely
restitution from the person who committed the criminal offense or delinquent act
against the victim.” Ohio Constitution, Article I, Section 10a(A)(7).
{¶ 21} The majority pays lip service to the voter initiative, but in the end, it
holds that a pre-amendment Ohio sentencing statute trumps the constitutional
change enacted by the voters. In doing so, a majority of this court once again
brushes aside the expressed will of the voters and improperly constricts the rights
of victims.
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{¶ 22} I would take the opposite approach and apply the statute in a manner
that is consistent with the Constitution—not the other way around. I therefore
dissent.
I. The restitution statute and the constitutional provision
{¶ 23} Ohio voters approved changes to Article I, Section 10a of the Ohio
Constitution as part of a ballot initiative known as Marsy’s Law. The Marsy’s Law
amendment sought to expand the rights of crime victims and to make those rights
enforceable. Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166
N.E.3d 1167, ¶ 13-15.
{¶ 24} Marsy’s Law contains a number of explicit guarantees designed to
strengthen the rights of crime victims. This case deals with the right to “full and
timely restitution,” Article I, Section 10a(A)(7), as well as a victim’s right “to be
present” at all proceedings in the criminal case, Article I, Section 10a(A)(2). The
question is whether a victim’s right to full and timely restitution includes the right
to be compensated for time off from work to attend court hearings.
{¶ 25} “Victim” is defined in Marsy’s Law as “a person against whom the
criminal offense or delinquent act is committed or who is directly and proximately
harmed by the commission of the offense or act.” Article I, Section 10a(D). By its
terms, the amendment is “self-executing” and “shall supersede all conflicting state
laws.” Article I, Section 10a(E).
{¶ 26} Before the adoption of the Marsy’s Law amendment, restitution
awards in criminal cases were governed entirely by sentencing statutes. Relevant
here, R.C. 2929.18(A)(1) gives the trial court discretion to impose a financial
sanction in the form of “[r]estitution by the offender to the victim of the offender’s
crime or any survivor of the victim, in an amount based on the victim’s economic
loss.” That statute further provides that “the amount the court orders as restitution
shall not exceed the amount of the economic loss suffered by the victim as a direct
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and proximate result of the commission of the offense.” Id. The term “economic
loss” is defined by statute:
“Economic loss” means any economic detriment suffered by
a victim as a direct and proximate result of the commission of an
offense and includes any loss of income due to lost time at work
because of any injury caused to the victim, any property loss,
medical cost, or funeral expense incurred as a result of the
commission of the offense, and the cost of any accounting or
auditing done to determine the extent of loss if the cost is incurred
and payable by the victim. “Economic loss” does not include non-
economic loss or any punitive or exemplary damages.
R.C. 2929.01(L).
{¶ 27} In answering the question presented in this appeal, we must consider
the interplay between the new constitutional provision and the pre-amendment
sentencing statute. In doing so, we must avoid assigning to the statutory provision
a reading that raises a constitutional question “if a reasonable alternative
interpretation poses no constitutional question.” Gomez v. United States, 490 U.S.
858, 864, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); see also State v. Tanner, 15
Ohio St.3d 1, 2, 472 N.E.2d 689 (1984); Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 247-251 (2012).
II. The majority’s flawed premises
{¶ 28} It is axiomatic that “[t]he Constitution is the superior law.” State ex
rel. Campbell v. Cincinnati St. Ry. Co., 97 Ohio St. 283, 309, 119 N.E. 735 (1918).
So anyone with a passing familiarity with our legal system should understand that
a constitutional provision trumps a legislative enactment, see Marbury v. Madison,
5 U.S. 137, 138, 2 L.Ed. 60 (1803). Yet the majority somehow decides that it is the
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pre-amendment statute, not the constitutional provision, that controls. To get there,
it employs some fancy footwork.
{¶ 29} Under our established mode of analysis, the majority would start
with the language of the Constitution and determine the meaning of “full and timely
restitution” in the constitutional provision. Next, it would look at the language of
the statute and determine whether there was a reasonable reading of the statute that
was consistent with the Constitution or whether there was an irreconcilable conflict.
If there was a reasonable reading that was consistent with the Constitution, then it
would adopt that meaning. If not, then the Constitution would prevail over the
statute. That’s pretty much Constitutional Analysis 101. But that is not what the
majority does.
{¶ 30} Instead, it points out that before Marsy’s Law, there was an Ohio
sentencing statute that allowed crime victims to receive restitution in certain
circumstances. The majority then reasons that because Marsy’s Law doesn’t define
the term “restitution,” there cannot be a conflict between Marsy’s Law’s guarantee
of “full and timely restitution” and the definition of “restitution” in the pre-
amendment sentencing statute. Therefore, it says, the definition from the pre-
amendment sentencing statute controls as to what Marsy’s Law means. That’s
pretty much the extent of the majority’s analysis. With a stroke of a pen, the right
to restitution guaranteed by the new constitutional amendment is narrowed to
nothing more than the majority’s construction of a pre-amendment statute.
{¶ 31} The majority tries to justify this maneuver by claiming that the pre-
amendment statute was created by the legislature to implement the prior version of
Article I, Section 10a. But it never explains why that claim matters; the new
constitutional provision is “the superior law,” Campbell, 97 Ohio St. at 309, 119
N.E. 735. And the majority’s claim also happens to be untrue. The version of
Article I, Section 10a in effect prior to the passage of the Marsy’s Law amendment
provided:
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Victims of criminal offenses shall be accorded fairness,
dignity, and respect in the criminal justice process, and, as the
general assembly shall define and provide by law, shall be accorded
rights to reasonable and appropriate notice, information, access, and
protection and to a meaningful role in the criminal justice process.
Nothing in the previous amendment spoke to restitution. The pre-amendment
restitution statute was enacted as a sentencing law, not a victims’ rights law.
Compare State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512(including former R.C. 2929.18 as one of the community-control provisions
enacted in 1995 as part of the “truth in sentencing” initiative of Am.Sub.S.B. No.
2, 146 Ohio Laws, Part IV, 7136), with State v. White, 85 Ohio St.3d 433, 444, 709
N.E.2d 140 (1999) (noting that R.C. Chapter 2930 was enacted by the General
Assembly as part of the Victims’ Rights Act, which was designed to carry out the
mandate in former Article 1, Section 10a).
{¶ 32} Also untrue is the majority’s claim that “no portion of Marsy’s Law
‘conflicts’ with the restitution statutes such that they are ‘supersede[d].’ ” Majority
opinion, ¶ 12, quoting Ohio Constitution, Article I, Section 10a(E). An obvious
conflict is that under the pre-amendment statute, the court “may” impose a financial
sanction of restitution, R.C. 2929.18(A), but Marsy’s Law guarantees victims the
“right” to restitution. Thus, courts no longer have discretion over whether to award
restitution. And given the majority’s recognition that the constitutional provision
grants victims the right to “full” and “complete” restitution, it likely conflicts with
and supersedes statutory law in that respect as well. See, e.g., State v. Oliver, 12th
Dist. Clermont No. CA2020-07-041, 2021-Ohio-2543, 176 N.E.3d 1054, ¶ 70
(concluding that courts no longer have discretion to reduce restitution awards based
on a defendant’s ability to pay).
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{¶ 33} Nevertheless, it does not necessarily follow that the restitution
provision under the Marsy’s Law amendment has entirely supplanted the pre-
amendment restitution statute. The amendment provides only that it “shall
supersede all conflicting state laws.” (Emphasis added.) Article I, Section 10a(E).
Thus, by its own terms, the constitutional provision operates in conjunction with
state laws with which it does not conflict. And it is only to the extent that a state
law conflicts with the amendment that the constitution supersedes. As I will
explain, the restitution provision in the Constitution conflicts with the statute in
some respects, but not in all.
III. The constitutional right to restitution
{¶ 34} I agree that Marsy’s Law grants a victim the right to recover losses
directly and proximately resulting from the commission of an offense. But unlike
the majority, I would determine the scope of the right by examining the text and
history of the constitutional amendment, rather than simply foisting a cramped
reading of the pre-amendment statute onto the amendment.
{¶ 35} When interpreting a constitutional provision adopted by direct vote,
we look to the plain language of the provision and consider how the words and
phrases contained therein would have been commonly understood by the voters.
Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, at ¶ 22. Though the
words of the amendment are paramount, contemporaneous discussion of the
amendment and the history and circumstances of its adoption may provide
additional context. Id.{¶ 36} The Marsy’s Law amendment incorporates the concept of proximate
cause. The amendment defines a “victim” as “a person against whom the criminal
offense or delinquent act is committed or who is directly and proximately harmed
by the commission of the offense or act.” Article I, Section 10a(D). Likewise, the
amendment guarantees a victim “full and timely restitution from the person who
committed the criminal offense or delinquent act against the victim.” (Emphasis
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added.) Article I, Section 10a(A)(7). By connecting the restitution award to the
criminal act, the provision imposes a causation requirement. In other words, the
Constitution grants victims a right to restitution for losses occurring as a result of
the commission of offenses against them. This is consistent with the common view
that criminal defendants are liable only for the harms proximately caused by their
crimes. See, e.g., Paroline v. United States, 572 U.S. 434, 446, 134 S.Ct. 1710, 188
L.Ed.2d 714 (2014) (“Proximate cause is a standard aspect of causation in criminal
law and the law of torts”); United States v. Monzel, 641 F.3d 528, 536
(D.C.Cir.2011) (“By defining ‘victim’ as a person harmed ‘as a result of’ the
defendant’s offense, the statute invokes the standard rule that a defendant is liable
only for harms that he proximately caused”).
{¶ 37} This tracks the discussion of the amendment by its proponents, who
emphasized the right of victims to be compensated for economic losses stemming
from the crimes against them. A pre-election article published by the group
Marsy’s Law for Ohio, L.L.C., stated that the proposed amendment would provide
a “right to restitution resulting from the financial impact of the crime.” Marsy’s
Law for Ohio, L.L.C., Equal Rights for Crime Victims Goal of New Constitutional
Amendment (Jan. 24, 2017), https://www.marsyslawforoh.com
/equal_rights_for_crime_victims_goal_of_new_constitutional_amendment
(accessed Dec. 7, 2021) [https://perma.cc/A38E-N9UW]. That group further
explained: “Marsy’s Law provides that victims are entitled to full and timely
restitution. Courts are required to order restitution, not to exceed a victim’s actual
losses. Victims must still prove their losses in compensable categories.” Marsy’s
Law for Ohio, L.L.C., FAQs–Does a judge have to order restitution be paid to
victims prior to court costs, fines, and fees or is this just assumed? Do courts have
discretion over what categories of restitution they order?,
https://www.marsyslawforoh.com/does_a_judge_have_to_order_restitution_be_p
aid_to_victims_prior_to_court_costs_fines_and_fees_or_is_this_just_assumed_d
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o_courts_have_discretion_over_what_categories_of_restitution_they_order
(accessed Dec. 7, 2021) [https://perma.cc/Q5CF-L39Z].
{¶ 38} The ordinary meaning of “restitution” is “restoring someone to a
position he occupied before a particular event.” Hughey v. United States, 495 U.S.
411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); see also Webster’s Third New
International Dictionary 1936 (1993) (defining “restitution” as “an act of restoring
or a condition of being restored” or “restoration of a person to a former position or
status”); Black’s Law Dictionary 1507 (10th Ed.2014) (defining “criminal
restitution” as “[c]ompensation for loss; esp., full or partial compensation paid by
a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a
criminal sentence or as a condition of probation”).
{¶ 39} Similarly, the Constitution’s guarantee of “full” restitution entitles
the victim to the “complete” and “maximum” amount of restitution. See definition
of “full” in Webster’s at 919; see also People v. Garrison, 495 Mich. 362, 369, 852
N.W.2d 45 (Mich.2014) (determining that the term “full restitution” in a statute
entitled victims to an amount of restitution that is “complete and maximal”). A
plain reading of the phrase “full restitution” conveys that a victim is entitled to
receive the full amount necessary to compensate the victim for his or her losses.
{¶ 40} There is nothing in the text or history of the amendment to suggest
that the constitutional guarantee of restitution was meant to invalidate the restitution
statute in its entirety. Indeed, the amendment’s proponents have continued to refer
to the current statutes as outlining the scope of restitution that is compensable. See
Marsy’s Law for Ohio, L.L.C., FAQs, https://www.marsyslawforoh.com/faqs
(accessed Dec. 8, 2021) (referring to the application of the current restitution statute
in answering questions regarding Marsy’s Law). But the Marsy’s Law amendment
employs broad language regarding restitution. Thus, I now turn to the restitution
statute to determine whether it is possible to read the statute in a manner that is
consistent with the broad restitution guarantee of Marsy’s Law.
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IV. When interpreted in a manner consistent with the Constitution, the
statute permits victims to recover wages lost due to court attendance
{¶ 41} In concluding that victims could not recover wages lost due to court
attendance, the court of appeals said that it was construing the constitutional
restitution provision in the context of the existing statutory framework for
restitution. 2020-Ohio-4822, 159 N.E.3d 1232, at ¶ 26. The majority makes the
same error here. But just the opposite tack is required. We must construe the statute
in light of the constitutional provision’s broad language and, to the extent possible,
avoid a construction that would call the statute’s constitutionality into question. See
State v. Keenan, 81 Ohio St.3d 133, 150, 689 N.E.2d 929 (1998) (when confronted
with equally plausible interpretations, courts should give preference to a reading
that would avoid constitutional problems over one that raises doubts as to the
statute’s constitutionality).
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A. The plain language of the statute authorizes restitution of a victim’s lost wages
due to court attendance
{¶ 42} In my view, we need not resort to the constitutional-avoidance
principle here, because not only is it plausible to read the restitution statute to permit
recovery of the lost wages sought in this case, but that is also the best reading of
the statute. R.C. 2929.18(A) provides for restitution in an amount based on the
victim’s economic loss. And R.C. 2929.01(L) defines “economic loss” as “any
economic detriment suffered by a victim as a direct and proximate result of the
commission of an offense.” The statute further includes in that definition examples
of losses that would qualify as directly and proximately resulting from the offense
and excludes noneconomic losses and other types of damages.
{¶ 43} In interpreting the statute, the majority lasers in on the word
“commission.” In doing so, it loses sight of the phrase that the word is found in:
“any economic detriment suffered by a victim as a direct and proximate result of
the commission of an offense.” (Emphasis added.) R.C. 2929.01(L). That
language is much broader than the majority allows.
{¶ 44} The statutory definition invokes traditional principles of causation,
namely, actual and proximate cause. “[T]o say one event proximately caused
another is a way of making two separate but related assertions. First, it means the
former event caused the latter. This is known as actual cause or cause in fact.”
Paroline, 572 U.S. at 444, 134 S.Ct. 1710, 188 L.Ed.2d 714. Second, it is to say
that the cause was sufficiently connected to the result, such that it can be said to
have been a proximate cause of a particular event. Id. In other words, “ ‘there must
be “some direct relation between the injury asserted and the injurious conduct
alleged.” ’ ” Id., quoting CSX Trans., Inc. v. McBride, 564 U.S. 685, 707, 131 S.Ct.
2630, 180 L.Ed.2d 637 (2011) (Roberts, C.J., dissenting), quoting Holmes v.
Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117
L.Ed.2d 532 (1992).
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{¶ 45} Proximate cause is typically explained in terms of foreseeability. Id.
at 445; see also Strother v. Hutchinson, 67 Ohio St.2d 282, 287, 423 N.E.2d 467(1981) (describing proximate cause as involving “a reasonable foreseeability”).
“ ‘[I]n determining what is direct or proximate cause, the rule requires that the
injury sustained shall be the natural and probable consequence of the [act]
alleged.’ ” Strother at 287, quoting Miller v. Baltimore & Ohio Southwestern RR.
Co., 78 Ohio St. 309, 325, 85 N.E. 499 (1908), overruled on other grounds, Schultz
v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109 (1983). Conversely, a
proximate-cause requirement “preclude[s] liability in situations where the causal
link between conduct and result is so attenuated that the consequence is more aptly
described as mere fortuity.” Paroline at 445.
{¶ 46} The majority skips over the proximate-cause portion of the definition
of economic loss, jumping instead to the examples listed in the statute. The
majority reasons that because the definition of economic loss includes “any loss of
income due to lost time at work because of any injury caused to the victim,” R.C.
2929.01(L), the definition excludes the lost wages sought in this case.
{¶ 47} The majority’s reading assumes that the examples of economic loss
provided in R.C. 2929.01(L) form an exclusive list. They do not. The statute does
not purport to provide an exhaustive list of what constitutes economic loss. Instead,
it broadly defines economic loss as “any economic detriment suffered by a victim
as a direct and proximate result of the commission of an offense,” provides a few
examples, and specifically excludes from the definition “non-economic loss or any
punitive or exemplary damages.” R.C. 2929.01(L). If the examples in the
definition were meant to be an exclusive list, the exclusions would be wholly
unnecessary.
B. The majority interprets the statute in a manner that conflicts with the
constitutional right to restitution
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{¶ 48} Those difficulties with statutory interpretation aside, the majority’s
view of the statute suffers from a more fundamental problem. The majority relies
only on the statutory definition, without any consideration of the constitutional text.
But, of course, the Constitution is paramount: we must interpret the statute in a
manner that is consistent with the Constitution, rather than cabin the constitutional
guarantee through a cramped reading of statutory text.
{¶ 49} The majority takes the latter approach. In concluding that lost wages
may be recovered only for the categories of loss listed in the statute, the majority
reads proximate cause out of the statutory definition of economic loss and,
consequently, interprets the pre-amendment restitution statute in a manner that
conflicts with the Constitution. But again, if there is a conflict, it is the Constitution
that prevails, not the statute.
{¶ 50} Restitution for wages lost due to a victim’s attendance in court
clearly falls within the scope of recovery permitted by the constitutional provision.
The restitution provision in Marsy’s Law entitles victims to restitution in the full
amount of their actual losses incurred as a result of the criminal offenses against
them. The statute must be read to facilitate this constitutional promise, otherwise
the statute must give way to the constitutional provision.
C. A victim’s attendance in court is a foreseeable consequence of a crime
{¶ 51} Both the statute and the constitution make paramount the
requirement of direct and proximate cause: economic losses that would not have
occurred but for the commission of the offense and that are a foreseeable result of
the commission of the offense are compensable. And that is certainly the case here.
John Yerkey’s crimes were a cause in fact of his estranged wife’s lost wages: but
for his criminal conduct, there would have been no criminal proceedings for her to
attend.
{¶ 52} Other courts have reached similar conclusions. In United States v.
Evers, 669 F.3d 645 (6th Cir.2012), the Sixth Circuit Court of Appeals determined
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that income lost by the legal guardian of a child victim due to the guardian’s
attendance in court was proximately caused by the crime and therefore
compensable. The court explained that the guardian’s lost wages “were directly
attributable to his attendance at various stages of the investigation and trial in
support of the victim,” and concluded that it was “reasonably foreseeable that the
parent or guardian of a minor victim of sexual exploitation [would] attend
proceedings related to the prosecution of the case and, as a consequence, miss
work.” Id. at 659; see also State v. Palubicki, 727 N.W.2d 662, 667 (Minn.2007)
(holding that it was “a direct result of the crime that the children of the murder
victim attended the [court] proceedings and suffered lost wages” and that such
losses were not “too attenuated from the criminal act” to be compensable);
Huddleston v. State, 764 N.E.2d 655, 657 (Ind.App.2002) (concluding that lost
wages incurred by the mother of a child victim as a result of her attendance at “pre-
trial conferences, court dates, * * * and other appointments related to” the criminal
case were compensable as a “direct and immediate result of the criminal acts”).
{¶ 53} The “natural and probable consequence” of committing a crime is
that the crime will be prosecuted and the victim will appear in court. See Strother,
67 Ohio St.2d at 287, 423 N.E.2d 467. Marsy’s Law grants crime victims a
constitutional right to be present at “all public proceedings involving the criminal
offense or delinquent act against the victim.” Ohio Constitution, Article I, Section
10a(A)(2). Following the enactment of Marsy’s Law, it is entirely foreseeable that
the victim may assert his or her constitutional right to be present at any and all
proceedings related to the offense. And it is foreseeable that to attend those
hearings, the victim may have to miss work and lose out on wages as a result.
Regardless of whether Yerkey’s estranged wife was subpoenaed to be in court or
was present of her own volition, her attendance was a foreseeable consequence of
Yerkey’s crimes.
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January Term, 2022
{¶ 54} The majority worries that reading the amendment in accord with its
broad language “would risk mutating sentencing hearings throughout the state into
civil trials of all grievances the victim may have against the offender, regardless of
their relation to the crimes at issue.” Majority opinion at ¶ 18. But there is no reason
to think that trial courts are incapable of applying the proximate-cause standard to
the facts presented. And despite the majority’s handwringing about what “could
have occurred” in this case, see majority opinion at ¶ 18, fn. 4, the reality is that the
trial court had no trouble applying the appropriate legal standards to reject
restitution sought by the victim for losses that were unrelated to Yerkey’s crimes.
Regardless, we are not permitted to consider inefficiencies or inconveniences when
construing constitutional provisions, nor can we disregard constitutional rights
simply because some may think them difficult to implement.
V. Conclusion
{¶ 55} For the second time in a year, a majority of this court reads Marsy’s
Law in an unduly narrow manner, depriving victims of the rights they are
guaranteed by the Ohio Constitution. See DuBose v. McGuffey, 168 Ohio St.3d 1,
2022-Ohio-8, 195 N.E.3d 951, ¶ 72 (DeWine, J., dissenting) (“Despite the fact that
Ohio voters passed a constitutional amendment that guarantees victims the right to
be heard in the bail process, the majority slams the door on a victim’s right to be
heard”). Let’s hope there will yet come a day when this court finally grants victims
the rights they are due under the Ohio Constitution.
{¶ 56} Marsy’s Law guarantees victims a right to “full and timely”
restitution. When a crime is committed, it is foreseeable that the crime will be
prosecuted and that the victim will attend court proceedings; thus, income lost
resulting from a victim’s presence in court is a direct and proximate result of the
commission of the offense. Under Marsy’s Law and the restitution statute, crime
victims are entitled to seek restitution for lost wages incurred as a result of their
attendance at court proceedings related to crimes committed against them. I would
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therefore reverse the court of appeals’ contrary judgment and remand this case to
that court for it to address Yerkey’s remaining assignment of error. Because the
majority does otherwise, I dissent.
KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
_________________
Vito J. Abruzzino, Columbiana County Prosecuting Attorney, and Tammie
Riley Jones, Assistant Prosecuting Attorney, for appellant.
Rossi & Rossi Co., Gregg A. Rossi, and James N. Melfi, for appellee.
Steven L. Taylor, urging reversal for amicus curiae Ohio Prosecuting
Attorneys Association.
Elizabeth Well and Diva Edel, urging reversal for amici curiae National
Crime Victim Law Institute, Ohio Crime Victim Justice Center, Ohio Alliance to
End Sexual Violence, Crime Victim Services, and Advocating Opportunity, Inc.
Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant
Public Defender, urging affirmance for amicus curiae Office of the Ohio Public
Defender.
_________________
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