Restitution to Governmental Agencies

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Last month the court of appeals decided State v. Mauer, an animal cruelty case. The defendant, Barbara Mauer, was charged with misdemeanor cruelty to animals after Cumberland County animal control officers found at least 15 to 20 cats living in deplorable conditions in her house. The floor of the house was covered with cat urine and feces, and there were streaks around the doors and windows where the cats—themselves covered with feces—“had been jumping trying to get out of the house.” The full facts of the case are appalling and sad. Suffice it to say Mauer was convicted, sentenced to one year of supervised probation, and ordered to pay $259.25 in restitution to the county animal control department. (There’s no indication in the case that the animal shelter ever filed a petition under G.S. 19A-70 asking the defendant to pay for reasonable expenses incurred by the shelter while the case was pending.)

The court of appeals upheld the conviction but vacated the restitution order because there was insufficient evidence to support the amount. A restitution worksheet, unsupported by testimony or documentation, is insufficient to support an order for restitution. State v. Swann, __ N.C. App. __ (2009). I wrote a little bit about this very common error last May.

So there was a lack of evidence in Mauer on the restitution amount. But what about the recipient?

G.S. 15A-1340.37(c) says “[n]o government agency shall benefit by way of restitution except for particular damage or loss to it over and above its normal operating costs . . . .” That statute is the legislative enactment of a constitutional principle set out in Shore v. Edmisten, 290 N.C. 628 (1976), an important case from the 1970s. In Shore, the North Carolina Supreme Court considered the propriety of restitution orders in 34 criminal judgments. The question before the court was whether the payments ordered were punitive or compensatory; if punitive they would be like “fines,” and thus, under Article IX, Section 7 of the North Carolina Constitution, payable to the public schools. One of the judgments required restitution to the local police department for “continued enforcement”; another directed a defendant to repay the police for money investigators had used to buy drugs from him as part of their investigation.

The supreme court said that “[a] state or a local agency can be the recipient of restitution where the offense charged results in particular damages or loss to it over and above its normal operating costs,” but that it would not be reasonable to “require the defendant to pay the state’s overhead attributable to the normal costs of prosecuting him.” Id. at 633–34. As a wise man once wrote, “[t]he entire purpose of the provision [in Article IX, Section 7] is to divert fines, penalties, and forfeitures from support of the general operations of government, including the operating costs of locating those who violate the law.” David M. Lawrence, Fines, Penalties, and Forfeitures: An Historical and Comparative Analysis, 65 N.C. L. Rev. 49, 67–68 (1986). Applying this principle, the supreme court held the “continued enforcement” payment to be improper under Section 7. “Monies for Continued enforcement,” the court said, “are to be provided by the legislature, not the judiciary.” Shore, 290 N.C. at 638–39. By contrast the court upheld the judgment requiring repayment of drug-buy money, concluding that such repayment was, in fact, compensation for an extraordinary expense, and that “allow[ing] the defendant to retain this money would result in unjust enrichment to him.” Id. at 634.

Getting back to the cats, is the $259 (or whatever amount might be proved on remand) restitution order acceptable under Shore and G.S. 15A-1340.37(c)? I don’t know all the facts of the case, but let’s assume for argument’s sake that the amount was tied directly to the animal control department’s cost of caring for whichever animals it was able to save. On the one hand, it says on the Cumberland County Animal Control webpage that part of their mission is to “remove animals from unsafe or unhealthy conditions” and to “love and care for the animals brought into the shelter”—these things are part of the normal function the county pays them to do. And unlike drug-buy restitution situations, there’s no element of “unjust enrichment” to Ms. Mauer in the money laid out by animal control. They weren’t buying cats from her in some sort of sting operation.

On the other hand, animal control’s costs in relation to Ms. Mauer’s case weren’t “normal”—she had an abnormal number of cats in unusually poor health that surely required exceptional expenditures by animal control. A court of appeals case decided after Shore equated “normal” with “overhead”—defined as the business costs that don’t belong to any particular part of a business’s work or product. State v. Johnson, 124 N.C. App. 462, 470 (1996). Under that definition, the order in Mauer’s case probably goes beyond normal operating costs and would be acceptable.

I don’t know the correct answer. I’ll leave it at that for now, but there’s more that could be said about this and related issues. I’ll probably do an entire post on restitution tied to drug-buy money. In the meantime, I wonder if readers have examples of other restitution payments ordered to government agencies that might raise the issue of what’s “normal.” Please let me know if you do.

14 comments on “Restitution to Governmental Agencies

  1. The restitution payments that I question are restitution payments to insurance companies. I have had cases in the past where an offender who was convicted of a burglary or B&E&L was ordered to make restitution payments to an insurance company for the amount the Insurance company paid out to the homeowner. Is that legal?

    I also had an offender who was ordered to pay thousands of dollars in restitution in a probation case that involved damage to a vehicle. The offender had already paid the restitution as part of a civil suit. When he questioned this, he was told that because one case was civil and one case was criminal, he would have to pay both. What is the law regarding collection of restitution in a civil judgment. Can it be ordered again as part of a criminal judgment?

    • My question also pretains to the insurance companies. I have sat in on a trial where an offender was ordered to pay 600,000.00 in restitution to a local church because he had burnt their new building down. The preacher was in court that day and said that their insurance company paid off on it due to arson and he said that the church was not seeking restitution. The judge that day thought there should be some form of restitution and ordered the defendant to pay the entire amount anyway.
      The defendant was given 5 years probation after he was to serve an active sentence prior to probation but even at that rate I doubt he would have a chance to attempt to comply.
      *It has since been brought to my attention that the church requested the restitution be modified somehow but I do not have the details at this time.*

  2. What about the $600 lab fee that is being imposed on defendants that are being convicted of drug offenses?

  3. I have a collateral question.
    How about jail fees.
    The legislature says (I think) that a defendant can be made to pay jail fees in the amount of $18.00 per day. I am in a county who leases jail space from another @ approx. $85.00 per calender day.
    Can the defendant be required to repay our county for the “actual” jail fees?

  4. We have been asking for restitution when a defendant damages equipment, or even for the cost of a taser cartridge, and no one has argued that one.

  5. What about when the Defendant is ordered to pay restitution for replacement of an animal killed illegally; i.e. a bear, turkey or deer. Last I heard the amounts for these animals were in the four figures, but the funds go into the general fund. Is that really restitution?

  6. NC Dept. Of Revenue, I assume, is a government agency. Our Courts routinely prosecute failure to pay taxes. The order probation, and restitution for back taxes. At the same time, they are entering judgments against the offender, and collecting that way as well. Is it proper that we collect taxes as part of a probation case, while the DOR has other remedies? And what part of this collection of back taxes is considered ‘over normal operating costs’ in a Failure to Pay Taxes Case?

  7. A different twist but why does Probation even have to be involved with the collection of restitution? Monies are monitored by the court in Florida by the collection court. They set up a montly payment that appears reasonable and afforable to their probationers and so long as they make these payments they are ok. A probationer in Florida can get off probation while still paying their monies. If they do not pay the court hauls them back. The probation officer can remind them to pay but can concentrate on all the other aspects of supervision. If we use this system it looks to me that “what is normal” is that restitution is handled like any other debt and the Probation Officer is no longer a debt collector.

  8. I once had an offender ordered to pay damages in an IPP case to his estranged wife for damage to a car that they both owned.

    I seem to recall that NCGS prohibits restitution to insurance companies.

    The $600 lab fee would seem to be part of the SBI’s normal course of business. Considering that they recently doubled the fee from $300, they even made the case themselves.

  9. N.C.G.S. 90‑95.3 explicitly allows for restitution to law enforcement for the buy money used in narcotics purchases.

  10. Prosecutor, recently in a probable cause hearing we learned, officers in my county pay confidential informants $50.00 IF and only IF, the CI makes a buy. Should the Defendant have to pay the “finders fee,” so to speak, as restitution. On a side note, doesn’t paying CIs for successful buys mean the CI should be issued a 10-99 for tax purposes? If they are being paid, are they not operating as an independent contractor?

    • I read that statute to mean that I can get restitution for the actual buy money used and nothing else. (As in a, “catch and release,” operation, where the CSI or UC buys the drugs, but the defendant is not immediately arrested, so the money is never recovered.) I do not see how that statute authorizes restitution for cash rewards to a CSI for tips or info.

      As far as a 10-99, I have no idea. I imagine it is a reward for information rather then compensation for work done, and is therefore not taxable income, but then again, I do not practice tax law, so I have no idea.

  11. Too bad you weren’t in the courtroom or read the transcript in this case or conducted your own investigation.

    FACTS:
    1. Although several animals were taken into protective custody on two occasions, Mauer was only charged with one misdemeanor animal cruelty for one cat, not several cats. The reason being, animal control could only show one animal who the vet actually found needed any treatment. All the other animals were found to be healthy. And if you continue to follow the case, you will find that the animal that was found to need treatment was not even Mauer’s cat and does not meet the description of any animal they “rescued” from her property;
    2. Arrest warrant and receipt left at residence describes the cat as a female, medium haired tortishell;
    When the animal was checked in at the pound in “protective custody”, this animal was checked in as a female, medium haired tortishell feline and given the number 142;
    Cat #142 was taken to the vet’s office approximately some time later and turned into a female, long-haired calico feline. This is also verified in a report written by pound employee Canady (that Cat #142 had “evolved” into a long-haired calico feline;
    (SUMMARY SO FAR: We have three documents from the pound (some of which are signed by 9 employees) describing #142 as a female, medium-haired tortishell feline; and then later a document from pound employee describing #142 as female, long haired calico and document from vet describing #142 as female, long haired calico. There is no record anywhere of the pound ever picking up a calico cat or a long-haired cat from defendant!)
    It was this “evolved” long-haired female calico that was found to ill, suffering, etc. that was labeled #142.
    (For those of you who don’t live in Cumberland County, please note that the animal shelter moved to a new location during this time period.)
    The officers at the animal shelter and the Assistant District Attorney who was assigned this case was well aware of all these facts but continued to prosecute anyway;
    All common sense, law, evidentiary rules, truth, and justice seems to be missing in this case; but I guess that’s that’s the way it is in Cumberland County!
    When the case gets into Superior Court, it gets even worse. Ms. Mauer would have been better off taking one of her cats to court with her than the attorney she had! The prosecutor was allowed to pass 30-something photographs to the jury in his opening arguments with the “promise” he would have them identified and show their relevance. That never happened. He never produced the person taking the photos of the inside of her home, nor did anyone he put on the stand state that those photographs were the inside of her house. The witnesses would hem-haw around and say they were similar, sort of, maybe and might be. . .
    Since I’m limited to the number of characters I can place here, I’ll end it here.

  12. […] in March I wrote a post on restitution to government agencies, setting out the general rule in G.S. 15A-1340.37(c) that “[n]o government agency shall benefit […]

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