State v. Kirschner
358 Or. 605
Or.2016Background
- Defendant broke into the victim’s home; charges included burglary-related offenses and weapon/drug offenses; defendant later pleaded guilty to some charges and agreed to restitution to be set by the court.
- The victim was subpoenaed to appear at defendant’s criminal trial and at the subsequent restitution hearing, and lost two days’ wages (approximately $900) for those appearances.
- The state sought restitution for the victim’s home-repair costs and for lost wages (repair-related and subpoena-related); defendant agreed to restitution for repair costs but contested the subpoena-related wages.
- Defendant argued the subpoena-related lost wages were not recoverable as “economic damages” under ORS 137.106 and, analogizing to the American Rule, that such litigation costs should be excluded.
- The Court of Appeals affirmed the restitution award; the Oregon Supreme Court granted review and affirmed the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lost wages for attending the criminal trial (victim subpoenaed) are recoverable as "economic damages" under ORS 137.106 | State: These wages are economic damages caused by the crime and thus recoverable restitution | Kirschner: Such wages are litigation costs analogous to civil "costs" and excluded by the American Rule | Court: Recoverable if caused by the crime and reasonably foreseeable; trial-attendance wages are awardable (following Ramos) |
| Whether lost wages for attending the restitution hearing (victim subpoenaed) are barred by the American Rule | State: Wages incurred because the state subpoenaed the victim are restitutionable economic damages | Kirschner: American Rule forbids awarding costs of litigation; this should bar the award | Court: American Rule rationale does not apply to subpoenaed witnesses in criminal restitution proceedings; such wages may be awarded if caused by the crime and reasonably foreseeable |
Key Cases Cited
- State v. Ramos, 267 Or App 164 (Or. Ct. App. 2014) (Court of Appeals decision treating litigation costs and foreseeability in restitution context)
- State v. Ramos, 358 Or 581 (Or. 2016) (Oregon Supreme Court decision addressing foreseeability and the relation of the American Rule to restitution)