921 N.W.2d 660
N.D.2019Background
- Melinda Strom pled guilty to misapplication of entrusted property > $50,000 and was sentenced to five years, all suspended, with three years supervised probation.
- A restitution hearing resulted in an order requiring Strom to pay $690,910.67 in restitution to victims.
- N.D.C.C. § 12.1-32-08(1) required courts to consider several factors when ordering restitution, including the defendant’s ability to pay and that restitution "may not exceed an amount the defendant can or will be able to pay."
- In 2016 North Dakota adopted N.D. Const. art. I, § 25(1)(n), granting victims the "right to full and timely restitution ... for all losses suffered."
- The district court concluded the constitutional amendment overrides the statutory ability-to-pay limitation and ordered full restitution; Strom appealed arguing the court abused its discretion by not considering her ability to pay.
- The Supreme Court addressed whether the constitutional provision abrogates the statutory limitation and affirmed the restitution order, declaring the conflicting statutory language inoperative as to setting the total restitution amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Art. I, § 25(1)(n) overrides statutory requirement to consider ability to pay when fixing total restitution | The State: the constitutional right to "full and timely restitution" conflicts with and therefore supersedes the statute's limitation based on ability to pay | Strom: the constitution and statute can be harmonized; district court must consider ability to pay when setting restitution | Court: Article I, § 25(1)(n) implicitly repeals the statutory provision limiting the total restitution amount by defendant's ability to pay; court may not consider ability to pay in setting total restitution amount |
| Whether the district court abused its discretion by awarding full restitution without findings on ability to pay | State: district court correctly awarded full restitution under the Constitution | Strom: failure to consider ability to pay was an abuse of discretion | Court: no abuse of discretion; award affirmed |
| Scope of ability-to-pay consideration post-amendment | State: ability to pay cannot reduce constitutional full restitution | Strom: ability to pay remains relevant to restitution orders | Court: ability to pay may still be considered for payment manner, timing, or willfulness at probation/contempt stages, but not to reduce total restitution amount |
| Whether the statute is facially unconstitutional or merely inapplicable here | State: statute conflicts and is unconstitutional insofar as it limits restitution amount | Strom (and concurrence): declaring statute unconstitutional unnecessary and not properly raised | Court: declares the specific statutory language inoperative as to setting total restitution, but limits ruling to that context |
Key Cases Cited
- State v. Blue, 915 N.W.2d 122 (2018) (discusses interplay of restitution statute and constitutional amendment)
- State v. Kostelecky, 906 N.W.2d 77 (2018) (addresses meaning of "full restitution")
- State v. Tupa, 691 N.W.2d 579 (2005) (defines restitution as making the victim whole)
- Hoff v. Berg, 595 N.W.2d 285 (1999) (explains effect of subsequently adopted constitutional provisions on preexisting statutes)