DocketNumber： No. 36739-4-II
Judges： Armstrong, Houghton, Hunt
Filed Date： 2/10/2009
Status： Precedential
Modified Date： 11/16/2024
¶22 (dissenting) — I respectfully dissent. The issue of statutory interpretation in this case is a close call, with compelling arguments by both sides. I find no flaw in the majority’s holding that the plain language of RCW 13.40.020(22) limits the definition of “restitution” to money the victim has already paid to mitigate injuries that the
I. Plain Language of Statute
¶23 I, too, look to the plain language of the statute, focusing on the order in which the legislature arranged the “limiting” words in the sentence at issue:
“Restitution” means financial reimbursement by the offender to the victim, and shall be limited to . . . actual expenses incurred for medical treatment for physical injury to persons.
RCW 13.40.020(22) (emphasis added). “Actual” is an adjective modifying the noun “expenses”; it is not an adverb modifying the passive verb “incurred.” Furthermore, the legislature neither converted the adjective “actual” into an adverb nor placed it next to the verb “incurred” to modify it. Had the legislature written “expenses actually incurred,” then the majority would find more support for its interpretation of this statutory phrase. But the legislature did not phrase the statute in this manner; and it did not limit restitution to expenses “actually incurred” at the time of the restitution hearing.
¶24 Instead, by limiting restitution to “actual expenses incurred” at the time of the restitution hearing, the legislature used the adjective “actual” to distinguish a victim’s concrete and identifiable expenses from expenses that are speculative or unverified. Here, the victim’s expenses were identifiable, quantifiable, and fixed at the time of the restitution hearing, even though some of the teeth restoration treatments could not occur before interim healing of the victim’s mouth and jaw.
¶26 Because CE broke the victim’s jaw, knocked out one tooth, and damaged several other teeth, the oral surgeon determined the following necessary course of treatment: (1) surgery/repair to the jaw, which costs approximately $9,560, followed by a period of healing of the jaw bone before undertaking the second step; (2) depending on the jaw’s healing progress, either a tooth implant or a bridge (determined by whether enough bone remains in the newly repaired jaw to accept an implant), which costs $3,843 or $3,276, respectively; and (3) crowns, following a period of healing after the implant to replace the knocked-out tooth, which cost $3,936. Exhibit 2, at 1, 10, reproduced in part below, shows that at the time of the restitution hearing, the victim had undergone the first phase of his treatment and that his mouth was in the process of healing before phases two and three could occur. IF’s treatment plan reads as follows:
[ip] / , Restitution
Dr. Paul Greenwauit, DDS . Initial second opinion $101.00
Dr. Seigried Nauman, DDS, MS Braces $5537.00
Dr. Michael Huey, DMD . Root Canals 3 ea. $3290.00
Dr. David Houpt, DMD General Dentistry ■ $632.00
Implant (if enough bone)-' $3843.00
Crowns $3936.00
'Restitutionas of 8/15/07 $17,339.00
¶27 At the time of the restitution hearing, IF knew that he would receive the second and third phases of treatment to repair the injuries to his jaw and teeth; he knew the costs for these sequential phases. These costs, although not yet paid by the victim, were “existing in fact or reality” at the time of the restitution hearing; therefore, they were “ac
II. Legislative Intent
¶28 To the extent that the two meanings of “actual” and the legislature’s placement and use of the word create ambiguity, we look to legislative intent. See Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999). The “statute’s plain language and ordinary meaning” serve as the starting point in our analysis. Id. When the plain language is unambiguous, or when the statutory language admits of only one meaning, the legislative intent is apparent, and we will not construe the statute otherwise. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). When the legislature provides no statutory definition, however, we give statutory words their common meaning, which may be determined by referring to a dictionary. Dahl-Smyth, Inc. v. City of Walla Walla, 148 Wn.2d 835, 842-43, 64 P.3d 15 (2003) (citing Budget Rent A Car Corp. v. Dep’t of Licensing, 144 Wn.2d 889, 899, 31 P.3d 1174 (2001)).
A. Dictionary Definition of “Actual”
¶29 Webster’s Dictionary provides two definitions for the adjective “actual.” Although the second definition tends to support CE’s and the majority’s reading of the statute, the first definition supports the State’s reading of the statute, which I adopt in this dissent. The first definition, “existing in fact or reality,”
¶30 In determining legislative intent, we also look to other terms in the same or related statutes. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11-12, 43 P.3d 4 (2002) (meaning can be discerned by what the legislature has said in related statutes, which discloses legislative intent about the provision in question); Connick v. City of Chehalis, 53 Wn.2d 288, 290, 333 P.2d 647 (1958) (in construing a legislative enactment, the court should consider the entire sequence of all statutes relating to the same subject matter) (citing State ex rel. Wash. Mut. Sav. Bank v. City of Bellingham, 183 Wash. 415, 421, 48 P.2d 609 (1935)).
1. Preceding clause in same statute
¶31 We should look first to the clause preceding the phrase at issue to shed additional light on the legislature’s intent in choosing the words “actual expenses incurred”: Financial reimbursement by the offender to the victim “shall be limited to easily ascertainable damages for injury to or loss of property.” RCW 13.40.020(22) (emphasis added). In this preceding clause, the legislature did not limit damages for injury to property to the victim’s current out-of-pocket expenses; instead, the legislature focused on costs that were “easily ascertainable.” In other words, such expenses subject to restitution need not be exact or already paid by the victim; they need only be identifiable. This preceding language in the property injury clause thus suggests that the legislature’s use of the term “actual expenses incurred” in the following personal injury clause similarly connotes the first definition of “actual” listed above: “existing in fact or reality.” Webster’s II New College Dictionary 12 (1999).
2. Adult restitution statute
¶32 Under chapter 9.94A RCW, the superior court retains jurisdiction over adult offenders for at least 10 years
f 33 In State v. Goodrich, for example, Division One of our court analyzed the same issue of whether the trial court lacked statutory authority to order restitution for medical expenses that the victim expected to pay but which had not yet been performed or billed. 47 Wn. App. 114, 733 P.2d 1000 (1987) (holding that for expenses to be “incurred,” there must be a present obligation to pay for the treatment that is necessitated by the injury). The Goodrich court stressed the importance of this 10-year modification provision to its determination of the case; it concluded that the provision “enables the court to order restitution for the ‘actual medical expenses incurred’ ” at a later time, within the 10-year window, thus eliminating the urgency and need to factor all medical expenses into a single award at the original restitution hearing. Id. at 117.
f 34 Also, in State v. Duback, Division Three of our court held that adult defendants could be ordered to make restitution for ongoing counseling based on estimates of the “ ‘typical’ period of time required for counseling” and of the “average cost” of such counseling, including ongoing counseling that had not ended at the time of the restitution hearing.
¶35 Similarly, in State v. Blanchfield, we held that the lower court did not abuse its discretion in ordering an adult defendant to pay restitution for orthopedic “follow-up” treatment, based on itemized billing from the crime victims compensation program and the victim’s statements about the need for ongoing treatment. 126 Wn. App. 235, 242,108 P.3d 173, review denied, 155 Wn.2d 1020 (2005). Although most of the victim’s treatment had been completed and the expenses had billed at the time of the restitution hearing, we did not limit the restitution amount to past expenses alone. Id. Instead, we affirmed the lower court’s inclusion of as yet unknown expenses for the victim’s “follow-up” treatment. Id.
¶36 In sum, by holding adult offenders accountable to make restitution for actual expenses incurred, the legislature intended that sentencing courts include the costs of victims’ follow-up treatments and ongoing procedures as part of the restitution award, even when such procedures do not actually occur until after the restitution hearing.
3. Juvenile restitution statute
¶37 The Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, operates as a separate and distinct statutory scheme from the Sentencing Reform Act of 1981, chapter 9.94A RCW, provisions for restitution by adult offenders. See State v. T.C., 99 Wn. App. 701, 706-07, 995 P.2d 98 (2000) (citing State v. Rice, 98 Wn.2d 384, 392, 655 P.2d 1145 (1982)). Consistently, the purposes underlying the juvenile system and the procedures designed to give effect to those purposes differ significantly from the purposes and procedures of the adult system. T.C., 99 Wn. App. at 706-07. Unlike the Sentencing Reform Act, the JJA contains no 10-year provision during which victims may request court-
¶38 Given that juvenile offenders quickly age-out of the juvenile system, a later modification, even if available, would be impractical and contrary to the goal of rehabilitating juvenile offenders while they remain in the short-term juvenile justice system. Here, the trial court ordered CE to pay restitution in the context of a juvenile proceeding. As a juvenile, CE had to pay restitution under chapter 13.40 RCW, which codifies the JJA.
¶39 Although the adult court in Goodrich could simply suspend discussion of the unperformed medical costs until a future modification hearing, IF did not have this option. Unlike the victim in Goodrich, IF had no opportunity to request additional restitution as it might arise after the restitution hearing. Instead, IF had only one opportunity to establish and to request restitution for all of the medical procedures and stages of treatment necessary to repair the injuries that CE caused during the beating.
|40 Furthermore, the Goodrich court treated the term “incurred” as something that assumes a liability or an obligation to pay. 47 Wn. App. at 116-17. Interpreting the term “incurred,” the court focused on when the obligation to pay for treatment arose, as opposed to when the actual treatment occurred. In so doing, the Goodrich court indicated that the phrase “actual expenses incurred” may apply to future medical expenses “[i]f there is sufficient evidence to demonstrate that the victim is obligated to pay for the medical services which will be performed, and there is adequate proof of the amount of the obligation.” Id. at 117. In such situations, Division One concluded that an award of restitution for expected treatment is proper.
¶41 If “actual expenses incurred” included court-ordered restitution for future treatments in Goodrich, then it is reasonable to conclude that the legislature intended the
C. Interpret Statutes Consistent with Legislative Intent
¶42 We construe juvenile restitution provisions liberally to achieve their purpose and to promote the fundamental goals of the JJA. Id.; State v. Landrum, 66 Wn. App. 791, 797, 832 P.2d 1359 (1992) (citing State v. Bennett, 63 Wn. App. 530, 533, 821 P.2d 499 (1991)). In furtherance of these goals, we must interpret restitution statutes in such a way as to avoid unlikely, strained, or absurd results. Landrum, 66 Wn. App. at 797 (citing State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990)). In addition, we adhere to the well-established principle of statutory interpretation that the law favors rational and
¶43 Is it reasonable or sensible to construe the same phrase “actual expenses incurred” differently in the juvenile and adult restitution contexts, such that whether the victim recovers restitution for future treatments necessary to repair severe injuries from a beating hinges solely on the fortuity of whether the victim’s assailant is a juvenile or an adult? This cannot have been the legislature’s intent.
¶44 In my view, the legislature could not reasonably have intended to preclude the trial court’s consideration of restitution to complete the medical treatment necessary to repair the severe injuries that CE inflicted on the victim’s mouth. Such legislative intent is all the more unlikely in light of the fact here that, due to the severity of the injuries CE inflicted, the victim’s treatments must be phased and sequenced with interim healing periods such that the restorative treatments could not all be completed before the restitution hearing.
¶45 For the foregoing reasons, I would (1) reverse the trial court’s decision to deny IF’s request for full restitution and (2) instruct the court, on remand, to exercise its discretion in setting restitution and to consider the actual expenses necessary for treating the severe injuries that CE caused to the victim’s mouth, teeth, and gums.
Review denied at 166 Wn.2d 1013 (2009).
The second definition of “actual” — “existing at the present or at the time”— supports the majority’s reading of the statute. Webster’s II New College Dictionary 12 (1999).
In contrast, the Juvenile Justice Act of 1977 contains no 10-year modification provision.
Although Division Three reversed the lower court’s restitution order on other grounds, Division Three concluded that the restitution amount could include the cost of ongoing treatment as long as the victim made this request within the proper statutory time period. Duback, 77 Wn. App. at 333.
Although the majority reads Goodrich as clearly rejecting restitution for “projected future medical expenses,” CE would still owe a duty of restitution under that interpretation because IF’s unperformed medical expenses, although “future,” were known and identifiable, not merely “projected” at the time of his restitution hearing.
Again, I note that unlike the case for adult defendants, CE’s status as a juvenile offender effectively prevents IF from seeking future restitution or modifying the order as later expenses arise.