State v. Gerhardt

• Decision Date: 25 November 2016
• Docket Number: CC 12P3329,SC S063612
• Citation: 360 Or. 629,385 P.3d 1049
• Parties: STATE of Oregon, Petitioner on Review, v. Scott B. GERHARDT, Respondent on Review.
• Court: Oregon Supreme Court

360 Or. 629

385 P.3d 1049

STATE of Oregon, Petitioner on Review,

v.Scott B. GERHARDT, Respondent on Review.

CC 12P3329

SC S063612

Supreme Court of Oregon.

Argued and submitted September 20, 2016.

November 25, 2016

Keith L. Kutler, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Cecil A. Reniche-Smith, Senior Assistant Attorney General.

Morgen E. Daniels, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

Erin K. Olson, Law Office of Erin K. Olson, P.C., Portland, filed the brief for amici curiae S.G. (crime victim), National Crime Victim Law Institute, and Oregon Crime Victims Law Center. Also on the brief were Margaret Garvin, Portland, and Rosemary W. Brewer, Portland.

Before, Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices, and Shorr, Justice pro tempore.^**

LANDAU, J.

Defendant was convicted of strangling his wife. At sentencing, the trial court awarded the victim restitution for attorney fees that she incurred to enforce a no-contact order that the court had previously entered while defendant was in jail as well as to obtain a permanent protective order. The issue in this case is whether those attorney fees may be awarded as restitution under ORS 137.106(1)(a), which authorizes restitution when a person is convicted of a crime "that has resulted in economic damages." The Court of Appeals concluded that they may not be awarded and reversed. State v. Gerhardt , 273 Or.App. 592, 359 P.3d 519 (2015). We conclude that, because defendant concedes that the attorney fees were caused by his conduct and were a reasonably foreseeable result of that conduct, the trial court did not err in awarding restitution for those fees. We therefore reverse the Court of Appeals.

The relevant facts are not in dispute. Defendant was arrested and charged for strangling his wife. The trial court entered a no-contact order under ORS 135.247(2), which provides that, when a defendant is charged with a crime that constitutes domestic violence, the court must "enter an order prohibiting the defendant from contacting or attempting to contact the victim, either directly or through a third party, while the defendant is in custody."

While in jail, defendant repeatedly violated the no-contact order. The victim hired an attorney to help her enforce the no-contact order and to obtain a permanent protective order under the Family Abuse Prevention Act, ORS 107.700 to 107.735, incurring expenses of $1,880.

Defendant ultimately pleaded guilty to the strangulation charge, and the trial court ordered him to pay restitution in the amount of $1,880 for the victim's attorney's fees. Defendant objected to an award of restitution. He argued that attorney fees of any sort are not the type of damages that are contemplated under the statute authorizing an award of restitution. Defendant reasoned that ORS 137.106(1)(a) authorizes restitution for "economic damages," which the relevant statutes provide has the meaning given in ORS 31.710(2)(a). That statute, in turn, defines "economic damages" as "objectively verifiable monetary losses," including charges necessarily incurred for a number of specified services. Defendant argued that, because legal services are not among the list of services that qualify, attorney fees are not economic damages for which restitution is available under ORS 137.106(1)(a). The trial court rejected defendant's argument and awarded restitution in the amount of $1,880.

Defendant appealed, arguing that the trial court erred in awarding restitution. He offered two arguments in support. First, he reprised his contention that attorney fees are "not the type of damages" that may be recovered under the statutes. Second, he argued that, even if attorney fees are the type of damages that may be the subject of a restitution award, the particular attorney fees incurred in this case were not, because they were not incurred as a "result" of the criminal charge of strangulation. Rather, defendant argued, the victim's attorney fees were incurred as a result of defendant's violation of the no-contact order.

The state argued that, although defendant had preserved his contention that attorney fees are not the sort of damages for which restitution may be ordered, he did not preserve his alternate contention that, even if attorney fees may sometimes be awarded, they could not be in this case because of an absence of a causal relationship between his crime and the fees incurred. In any event, the state argued, the fees were incurred as a result of defendant's conduct in strangling the victim.

The Court of Appeals agreed with defendant's argument concerning the causal relationship between a crime and economic damages that may be awarded as restitution. The court concluded that, although defendant's conduct in strangling the victim "was a necessary predicate" for the necessity of hiring an attorney, it "was not sufficient to cause the victim to incur the attorney fees." Gerhardt , 273 Or.App. at 595, 359 P.3d 519. In the court's view, "it was defendant's conduct after he committed the crime that led the victim to conclude that she needed to hire an attorney," not the crime itself. Id. (emphasis in original). The court did not address the state's contention that defendant had not preserved that argument; nor did it address defendant's argument that attorney fees are categorically excluded as "economic damages" under the restitution statute. Its decision did prompt a dissent, though, which took issue with the majority's decision to require a "sufficient" cause in excess of "but for" causation to justify an award of restitution. Id. at 600–04, 359 P.3d 519 (Flynn, J., dissenting).

The state sought review. In the meantime, this court decided State v. Ramos , 358 Or. 581, 588, 368 P.3d 446 (2016). In that case, the court rejected the argument that attorney fees are categorically excluded from restitution awards. Id. at 602, 368 P.3d 446. It further held that, under ORS 137.106, whether a crime "result[s] in" economic damage is a function of two considerations. First, there must be factual causation. Ramos , 358 Or. at 593, 368 P.3d 446. Factual causation is established if the economic damages would not have occurred but for the defendant's crime. Id. at 593 n. 6, 368 P.3d 446. The court noted the possibility that a different type of causation—"substantial factor" causation—might apply, but the court reserved that question for another day, given the nature of the parties' arguments in that case. Id. at 586 n. 3, 368 P.3d 446. Second, any economic damages awarded as restitution under ORS 137.106 must have been a reasonably foreseeable consequence of the defendant's crime. Id. at 603–04, 368 P.3d 446. The court rejected the contention that the test should be more demanding than reasonable foreseeability and that, instead, the court should require that economic damages be "direct." Id. at 597, 368 P.3d 446.

Following this court's decision in Ramos , the parties in this case submitted briefs and arguments in light of the principles set out in that opinion. For its part, the state argues that the disposition of this case is straightforward. There is no dispute that, but for defendant's act of strangling the victim, the attorney fees would not have been incurred, and it is equally undisputed that the incurring of those fees was a reasonably foreseeable consequence of his crime. Under Ramos , the state concludes, the award of restitution was proper.

Defendant does not contest that the attorney fees were incurred, at least in a but-for sense, as a result of his crime. Nor does he contend that, as a matter of law, the fees were not a reasonably foreseeable consequence of that crime.

Instead, defendant argues that the court should interpret ORS 137.106 to require more than but-for causation. As defendant sees it, Ramos "left open" the type of causation that the statute contemplates. Defendant proposes that the court address the issue in this case and conclude that restitution is appropriate only if his crime is "sufficient in itself to cause the victim's damages," that is, only if no other causal factor may contribute to the damages. In this case, defendant argues, his crime of strangling the victim was not the sole cause of her attorney fees; rather, it was his subsequent conduct of violating the no-contact order that caused, at least in part, the victim to incur the fees.

Defendant further argues that, if the court rejects his sole-cause proposal, it should adopt as an alternative requirement that the state must prove that, "in addition to being a ‘but-for’ cause of the damages, the criminal conduct was a substantial factor in...