Restitution to Governmental Agencies

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.