Restitution Statute Provides Exclusive List of Factors to Consider in Determining Restitution; A Victim's Conduct May Not Be Considered

State v. Riggs, Minn.S.Ct., 7/1/2015.  The restitution statute, Minn.Stat. 611A.045, subd. 1, says that in determining restitution that trial court "shall consider" two enumerated factors:  the victim's economic loss from the offense and the defendant's income, resources and obligations.  Mr. Riggs pled guilty to terroristic threats.  The victim requested restitution for various things, described as "employment-related" expenses.  Mr. Riggs didn't object to paying some restitution but thought that since the victim had been the initial aggressor - something that no one disputed - that he should not have to pay all of those "employment-related" expenses.  The trial court agreed and ordered Mr. Riggs to pay only  half those expenses.

The court of appeals reversed.  That court said that because the statute does not identify any other factors or state that other factors may be considered then, by golly,only those two factors can be considered.  Justice Wright, for only four members of the court, agrees with the court of appeals.  Chief Justice Gildea and Justice B. Barry Anderson dissent, as does Justice Page.  Justice Wright concludes that the words of the statute provide the only two factors that the trial court can consider.  The relative fault of the victim just isn't there.

Alternatively, Mr. Riggs said that the phrase "economic loss sustained by the victim as a result of the offense" gave the trial court some leeway to take into account the victim's conduct. Justice Wright hauls out the dictionary to laboriously define each of the words in this phrase, then flat out declares that a victim's role as an initial aggressor may not be considered in determining the amount of restitution. 

The chief justice and Justice Anderson agreed that the statute provided an exclusive list of factors to be considered, but thought that the "as a result of the offense" phrase was broad enough to give the trial court some discretion to consider the victim's conduct.  the chief also thought that State v. Terpstra, 546 N.W.2d 280 (Minn. 1996) had held that restitution was not limited to the crime of conviction.  This is nonsense as Terpstra was a single count conviction of theft by swindle.  The state was not able to prove beyond a reasonable doubt that Terpstra swindled the full amount claimed, some forty-five grand, but the trial court, under a preponderance standard, could still award the full amount as restitution. There was only one offense and only one conviction. Here, Mr. Riggs pled guilty to terroristic threats and another offense, assault was dismissed.

Justice Page thought that restitution should be limited to losses caused by the offense of conviction.  He points out that the restitution statute provides that a victim may only receive restitution "as part of the disposition of a criminal charge ... against the offender if the offender is convicted." Minn.Stat. 611A.04, subd. 1(a).  The phrase "as a result of the offense" logically refers to the offense of conviction.  Justice Page also agreed with the chief justice that the trial court should be able to consider the victim's conduct.