WALTERS

On petition for review pursuant to ORS 147.539.

Erick J. Haynie, Perkins Coie, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief were Nathan R. Christensen and Bryan D. Beel. Paul L. Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Paula J. Lawrence, The Lawrence Law Firm, McMinnville, argued the cause and filed the brief for respondent on review Daniel Algeo.

Margaret Garven, Portland, filed a brief for amicus curiae The National Crime Victim Law Institute. With her on the brief was Amy C. Liu.

WALTERS, J.

Petitioner is a crime victim who filed a claim pursuant to ORS 147.515, alleging that the trial court had violated her right to “receive prompt restitution” under Article I, section 42(1)(d),

of the Oregon Constitution. The trial court entered an order denying petitioner's claim, and, pursuant to ORS 147.539, petitioner sought direct review of that order in this court. For the reasons that follow, we affirm the trial court's order.

The material facts are procedural and undisputed. Petitioner and her friend were crossing a street late at night when defendant, who had been drinking, hit them with his car and seriously injured them.

Defendant pleaded guilty to one count of driving under the influence of intoxicants and two counts of assault in the fourth degree for “intentionally, knowingly or recklessly caus [ing] physical injury.” ORS 163.160. The trial court sentenced defendant to a combination of supervised probation, jail time, fines, and suspension of his driver's license. Pursuant to ORS 137.106, the trial court judgment also granted the state 90 days to submit a “reasonable final restitution amount.”

ORS 137.106(1) provides that, when a trial court determines that a person has been convicted of a crime that has resulted in economic damages, the court must include in its judgment a requirement that the defendant pay restitution to the victim in the “full amoun” of those damages. In this case, the state timely submitted a proposed supplemental judgment requesting that defendant be ordered to pay restitution in an amount that defendant stipulated represented the full amount of petitioner's economic damages. The trial court found that criminal conduct had occurred; that petitioner had suffered economic damages; and that, but for defendant's criminal conduct, petitioner would not have incurred those damages. However, the court asked the parties to brief two questions: (1) whether the court may grant an award of restitution that exceeds the amount that petitioner could have recovered in a civil action; and (2) whether a contributory negligence analysis is appropriate in the context of a restitution determination.

After considering the parties' arguments, the court issued a letter opinion dated July 17, 2012, awarding restitution in an amount equal to 10 percent of petitioner's economic damages. The court reasoned that the economicdamages recoverable through criminal restitution are those that are recoverable in a civil action and that, in a civil action, petitioner could not have obtained judgment for damages resulting from her own negligence. The court found that petitioner had been “jaywalking” when defendant struck and injured her and concluded that that unlawful activity, rather than defendant's criminal conduct, was the “cause” of petitioner's injuries. However, because defendant had admitted at sentencing that he recklessly had caused physical injury to petitioner, the court determined that the state had proved that defendant had caused “some,” although not more than a “nominal percentage,” or 10 percent, of petitioner's economic damages. “It is clear from the evidence that almost all of the economic damages suffered by the victim[ ] were caused by [her] violation of the law,” the court wrote. “I don't believe I have any authority to award more.” The court then entered a supplemental judgment in an amount that reflected its reasoning. Neither party appealed from that judgment, which was entered on August 3, 2012.

On August 13, 2012, represented by private counsel, petitioner filed a claim in the underlying criminal proceeding alleging that the court had entered the supplemental judgment in error and in violation of Article I, section 42, of the Oregon Constitution. Petitioner set out her claim on Form 4.100.2a of the UTCR Appendix of Forms, “Claim of Violation of Crime Victims' Right(s).” On September 13, 2012, petitioner filed an amended claim using the same form. In her amended claim, petitioner alleged that the court's supplemental judgment had violated her right “[t]o receive prompt restitution from the convicted criminal who caused [her] loss or injury.” As a remedy, petitioner sought restitution in the full amount of her economic damages.

After considering additional briefing and conducting another hearing, the trial court entered an order denying petitioner's claim “for the reasons on the record includ[ing the court's] letter opinion of July 17, 2012.”

Petitioner sought review of the trial court's order pursuant to ORS 147.539.

This court exercised its discretion to grant review and extended the time to issue its final decision pursuant to ORS 147.539(4)(b).

Before considering petitioner's arguments, we think it helpful to lay out the pertinent constitutional and statutory framework that governs petitioner's claim. Article I, sections 42 and 43, of the Oregon Constitution provide crime victims with specifically enumerated rights, including “[t]he right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury.” Or. Const., Art. I, § 42(1)(d). Article I, section 42(3)(a), provides that every victim shall have a “remedy by due course of law for violation of a right established in [section 42].” Article I, section 42(3)(b), provides that a “victim may assert a claim for a right established in [section 42] in a pending case, by a mandamus proceeding if no case is pending or as otherwise provided by law.”

The legislature enacted ORS 147.500 to 147.550 to effectuate those constitutional rights. SeeORS 147.504(1) (so stating). Under those statutes, a victim who wishes to allege a violation of a right granted by Article I, section 42, must inform the court within 30 days of the date the victim knew, or reasonably should have known, of the facts supporting the allegation. ORS 147.515(1). The victim then must describe those facts and propose a remedy. Id. If the trial court deems the victim's claim to be facially valid, it must issue an order to “show cause why the victim should not be granted relief,” ORS 147.517(2), and may hold a hearing on the victim's claim, ORS 147.530(1). At the conclusion of that hearing, the trial court must issue an order granting or denying the relief requested. ORS 147.530(4). A party not satisfied with the court's order may seek review in this court pursuant to ORS 147.535, 147.537, and 147.539.

In this case, petitioner and the trial court followed the statutory procedures that we have outlined. Petitioner filed a claim alleging a violation of her right to “receive prompt restitution” under Article I, section 42, and the trial court entered an order denying that claim. On review, petitioner does not contest the trial court's determination that she was 90 percent responsible for the injuries that she suffered; rather, she argues that ORS 137.106(1)(a) requires that a person who commits a crime that results in economic damages pay the “full amount” of those damages, irrespective of the fault of the victim or any third party. Petitioner interprets Article I, section 42(1)(d), as incorporating that statutory requirement. Alternatively, petitioner argues that this court has authority to determine whether the trial court committed statutory error by failing to impose restitution in the full amount of her economic damages.

In accordance with our usual approach, we take up petitioner's statutory argument before we consider her constitutional argument. Burt v. Blumenauer, 299 Or. 55, 70, 699 P.2d 168 (1985). In doing so, we proceed differently than this court did in State v. Barrett, 350 Or. 390, 255 P.3d 472 (2011). In Barrett, the victim claimed a violation of her constitutional right to advance notice of, and the right to be present at, the critical stages of a criminal prosecution.

Or. Const., Art. I, § 42(1)(a). Although the victim in Barrett alleged that her statutory rights had been violated, the statutes that she cited provided rights duplicating those set out in the constitution; those statutes were not necessary to the victim's constitutional argument. The trial court held that the state had violated the victim's constitutional and statutory rights, but did not provide a remedy for those violations. Id. at 396–97, 255 P.3d 472. Therefore, the trial court denied the victim's claim.

On review, this court began its analysis with the victim's claim that her constitutional rights had been violated. The court explained that, in enacting ORS 147.500 to 147.550, the legislature had “created a clear and expedited procedural path for a victim to assert claims for the violation of her constitutional rights, both at trial and on appeal,” but that the procedural path to a statutory remedy was “less clear.” Id. at 398–99, 255 P.3d 472. Therefore, the court departed from its usual approach and, on the merits, concluded that the victim had proved a violation of Article I, section 42(1)(a), and was entitled to the remedy that she sought—a resentencing hearing at which she could appear. Id. at 407, 255 P.3d 472. Given those conclusions, there was no need for the court to consider, in addition, whether a statutory violation had occurred.

This case is different. Here, Article I, section 42, does not explicitly require, as ORS 137.106(1)(a) does, that a trial court award restitution in “the full amount of the victim's economic damages.” Rather, Article I, section 42, provides that a crime victim is entitled to “receive prompt restitution from the convicted criminal who caused the victim's loss or injury.” Petitioner's argument is that we should interpret that constitutional right to incorporate the statutory requirement or, alternatively, that we should review the trial court's decision to determine whether the trial court committed statutory error in ordering restitution that constitutes only 10 percent of petitioner's economic damages. If ORS 147.500 to 147.550 permits the latter review, we need not take up an issue of constitutional interpretation that our “salutary sense of judicial restraint” counsels us to avoid. See Barrett, 350 Or. at 397, 255 P.3d 472. Thus, we adhere to our “first things first” approach in this proceeding and analyze our authority to consider, in this proceeding, whether the trial court committed statutory error.

In that regard, it is important to remember that the question of the trial court's obligation to enter restitution in the “full amount” of petitioner's economic damages first arose when the state proposed a supplemental judgment seeking restitution in that amount. The parties—at that time, the state and defendant—fully briefed the issue, and the state took the position that petitioner takes in this appeal—that ORS 137.106(1) requires restitution in full, that the amount recoverable in a civil action is irrelevant to a restitution award, and that the trial court was precluded from reducing the restitution award to reflect the extent of a victim's “fault.” The trial court disagreed with the state's argument and entered judgment in an amount equal to 10 percent of petitioner's economic loss. The state did not appeal to the Court of Appeals from that supplemental judgment, although it was permitted to do so. SeeORS 138.060(1)(e) (providing for appeal to the Court of Appeals); State v. Ceballos, 235 Or.App. 208, 210, 230 P.3d 954 (2010) (state's appeal from supplemental judgment of restitution). Instead, petitioner filed a claim in the trial court alleging a violation of her constitutional right, and the trial court entered an order denying that constitutional claim. It is that order that is before us on review.

Petitioner nevertheless contends that this court is authorized to consider whether the trial court committed statutory, as opposed to constitutional, error in entering that judgment. Petitioner argues that no statute expressly prohibits this court from that exercise of jurisdiction. In fact, petitioner notes, ORS 147.535(3) does not limit this court's jurisdiction to constitutional issues. Rather, it provides that “the jurisdiction of the Supreme Court is limited to the order for which appellate review is sought.” Thus, petitioner suggests, when a victim seeks review of such an order on statutory as well as constitutional grounds, this court may address both issues.

In our view, the statute to which petitioner refers—ORS 147.535—resolves the issue that petitioner raises, but resolves it against her.

The only jurisdiction that that statute grants is jurisdiction to review the order of a trial court denying a petitioner's constitutional claim. In granting crime victims an opportunity for direct review of such orders in this court, the legislature has permitted crime victims a unique procedural path. See Barrett, 350 Or. at 398, 255 P.3d 472 (expedited procedural path provided by ORS 147.517, 147.530(5), and 147.535(2) designed to allow victims to assert claims for violation of constitutional rights). Other judgments or post-judgment orders in criminal cases generally are appealable only to the Court of Appeals. SeeORS 138.040, 138.050, 138.053, 138.057, 138.060, and 147.535(1)(b) (governing appeals to the Court of Appeals in criminal cases and stating persons who may appeal and under what circumstances). Thus, in this case, the state was permitted to appeal the supplemental judgment that the trial court entered to the Court of Appeals. Had the state taken such an appeal, it could have argued that the trial court had committed statutory error in entering the supplemental judgment in an amount less than petitioner's full economic damages. However, the legislature has limited direct review in this court under ORS 147.535(3) to considering whether the trial court committed constitutional error when it denied petitioner's claim that her constitutional rights were violated.

That does not mean, however, that ORS 137.106 is completely immaterial to our task. Petitioner contends that Article I, section 42(1)(d), incorporates the requirements of ORS 137.106, and we therefore are required to analyze that statute in the course of analyzing petitioner's constitutional claim. We turn now to that task and consider whether Article I, section 42(1)(d), guarantees a victim the right to receive the “full amount of [her] economic damages” required by ORS 137.106(1)(a).

Because Article I, section 42, was enacted by the voters through ballot measure, we must consider the voters' intent. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559, 871 P.2d 106 (1994). We focus first on the text and context of Article I, section 42(1)(d), but also may consider the measure's history, should it appear useful to our analysis. Cf. State v. Gaines, 346 Or. 160, 171–72, 206 P.3d 1042 (2009).

The text of Article I, section 42(1)(d), grants a victim the right to receive prompt restitution. Section 42 does not define the term “restitution,” and, although it provides that a victim “shall have remedy by due course of law for violation of a right established in [that] section,” it does not further describe that remedy. Or. Const., Art. I, § 42(3)(a). Nevertheless, both petitioner and the state argue, for different reasons, that Article I, section 42(1)(d), confers a right to receive the “full amount” of a victim's economic damages. Petitioner suggests that that meaning is captured by the term “restitution” itself, because the “ordinary meaning” of “restitution” is to “restor[e] someone to a position he occupied before a particular event.” Alternatively, petitioner argues that, because Article I, section 42, permits the legislature to “effectuat[e]” victims' constitutional rights, it confers the right to receive “restitution” as that term is statutorily defined.

The state makes a somewhat different argument. It contends that Article I, section 42(1)(d), grants a crime victim a “procedural” right to receive promptly the restitution that a criminal defendant statutorily is required to pay. Alternatively, the state argues that, when the voters amended Article I, section 42, in 2008, they intended the term “restitution” to have its contemporaneous statutory meaning; that is, a right to receive restitution as that term was defined by ORS 137.106 in 2008.

We begin with petitioner's suggestion that, in using the term “restitution,” the voters intended to give that term its ordinary meaning and to require that a victim be fully restored or returned to the condition that he or she had enjoyed prior to the crime. Although petitioner certainly is correct that the ordinary meaning of the term “restitution” includes the idea of repayment,

we are not persuaded that the voters intended that term to require repayment “in full.”

In 1976, before Article I, section 42, was adopted, this court had interpreted the original version of the criminal restitution statute, formerORS 137.540(10) (1975), to permit a trial court to award a victim an amount of restitution that was less than the amount of the victim's loss. State v. Stalheim, 275 Or. 683, 552 P.2d 829 (1976). FormerORS 137.540(10) authorized a sentencing court to require, as a condition of probation, that the defendant “[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by [the] offense, in an amount to be determined by the court.” (Emphases added.) The court interpreted the term “restitution” to mean “the return of a sum of money, an object, or the value of an object which a defendant wrongfully obtained in the course of committing the crime.” Id. at 687–88, 552 P.2d 829. The court interpreted the term “reparation” to have a broader meaning—“repairing” or “restor[ing].” However, the court held that both terms encompassed only “reimbursement for the victim's liquidated or easily measurable damages resulting from the charged offense,” id. at 688, 552 P.2d 829, and noted that it “[did] not mean to imply that a judge could not impose restitution or reparation in an amount less than the victim's loss.” Id. at 688 n. 8, 552 P.2d 829.

In 1999, when the voters enacted Article I, section 42, the criminal restitution statute—ORS 137.106 (1999), amended by Or Laws 2003, ch 670 § 1—continued to permit trial courts to impose restitution in amounts that were less than a victim's full economic damages.

At that time, the term “restitution” was statutorily defined as the “full, partial or nominal payment of pecuniary damages to a victim.” ORS 137.103(3) (1999). “Pecuniary damages,” in turn, were limited to “special damages * * * which a person could recover against the defendant in a civil action” arising out of the defendant's criminal activities. ORS 137.103(2) (1999). Whether restitution was imposed, and in what amount, was entirely within the sentencing court's discretion. ORS 137.106(1) (1999) (making restitution a discretionary part of a defendant's sentence). Thus, before the adoption of Article I, section 42, the legislature had used the term “restitution” to mean repayment, but not to mean, necessarily, repayment of economic damages “in full.” We are not persuaded that the ordinary meaning of the term “restitution” incorporates the concept of repayment of economic damages “in full” or that the voters intended the term “restitution” to carry that meaning when they enacted Article I, section 42.

We turn now to the argument, advanced by both petitioner and the state, that Article I, section 42, grants crime victims a right to receive the restitution required by statute. Petitioner bases her argument on the text of Article I, section 42(3)(c), which states that the legislature may “provide by law for further effectuation ” of the rights and remedies set forth in that subsection. (Emphasis added.) The legislature “effectuated” Article I, section 42, petitioner argues, by amending ORS 137.106 to require that trial courts impose restitution in the “full amount” of a victim's economic damages. Therefore, petitioner asserts, that statutory requirement has become an element of a victim's constitutional right to “receive prompt restitution.” In a related vein, the state contends that the voters who adopted Article I, section 42, would have understood that the statutory meaning of the term “restitution” had changed over time and would continue to do so. In the state's view, the fact that Article I, section 42, did not define the term “restitution” suggests that the voters intended to create a procedural right that would ensure that victims receive promptly the amount of restitution to which they were statutorily entitled at the time that restitution was imposed.

Before we consider those arguments, it is important to clarify the difference between a procedural and a substantive right to receive restitution. A right to receive, promptly, whatever restitution a trial court orders is procedural in nature. A right to receive, promptly, payment of a specific amount, or payment measured by a specific standard, is both a substantive and a procedural right. Petitioner argues for what she recognizes is a substantive right. She contends that the constitution requires the prompt payment of restitution in a specific amount—that is, the amount required by statute at the time that restitution is ordered. The state also contends that a victim has a constitutional right “to promptly receive the restitution that a convicted defendant is required to pay under current restitution statutes ” (emphasis added), but it describes its interpretation as purely procedural.

We disagree with the state's characterization of its argument. The state's interpretation of Article I, section 42, would permit a victim to claim not only a procedural error should a trial court fail to award restitution “promptly,” but also substantive error should a trial court fail to award restitution in a particular sum—the sum mandated by statute. Because the state, like petitioner, argues that the trial court committed error by awarding petitioner less than the “full amount” of her economic damages, we conclude that the state advances the same argument as does petitioner, albeit on different grounds. For the following reasons, we reject both parties' contentions.

The logical result of the parties' arguments is that, as used in Article I, section 42, the term “restitution” may have a different substantive meaning depending on how that term is defined by statute over time. Thus, in 1999, when the trial court had statutory discretion to award restitution that was full, partial, or nominal, a crime victim's constitutional right also would have been limited accordingly. But, in 2012, the constitution would have granted victims the right to receive restitution in the “full amount” of the victims' economic damages—the amount required by ORS 137.106 at that time. Following the parties' arguments, the meaning of Article I, section 42, would change, not as a result of the people's amendment of the constitution, but by legislative action. Such an interpretation arguably could raise a question of constitutional magnitude, because Article XVII, section 1, of the Oregon Constitution, requires proposed amendments to the Oregon Constitution to be referred “to the people for their approval or rejection.”

We need not address that potential issue in this case, however, as we do not glean from either the text or context of Article I, section 42, an intent to make the meaning of the term “restitution” dependent on future statutory changes. First, we reject petitioner's argument that that intent is evidenced by the grant of legislative authority to “effectuate” provisions of Article I, section 42. Subsection (3) of section 42 provides that “[e]very victim * * * shall have remedy by due course of law for violation of a right established in this section,” and subsection 42(3)(b) provides that “[a] victim may assert a claim for a right established in this section in a pending case, by a mandamus proceeding if no case is pending or as otherwise provided by law.” Subsection (3)(c) states that the legislature may “provide by law for further effectuation of the provisions of this subsection.” (Emphasis added.) The subsection referenced is subsection (3)-the subsection that pertains to remedies for violating the rights set forth in subsection (1). Thus, the authority that Article I, section 42(3)(c), grants is authority to further spell out or enable the remedies that the constitution provides and to specify procedural means of obtaining them. The voters made that meaning clear by providing in subsection 42(3)(c) two examples of actions that the legislature may take pursuant to its authority to “effectuate” under Article I, section 42(3)(c), both of which are procedural in nature: the authority to provide “expedited and interlocutory consideration of claims for relief,” and the authority to establish “reasonable [time] limitations.” By its terms, Article I, section 42, does not grant the legislature authority to define or determine the substantive rights set forth in subsection (1) of section 42.

Nor does the fact that the voters who adopted Article I, section 42, may have been aware that the legislature had changed the nature of a trial court's authority to grant restitution over time convince us that the voters intended to grant constitutional stature to variable statutory rights. We agree with the state that the voters may not have intended to fix a victim's right to restitution to the 1999 statutes, but that does not mean that the voters intended to give the word “restitution” a later-enacted statutory meaning.

For the reasons stated, we reject the parties' arguments that the term “restitution” as used in Article I, section 42(1)(d), confers a substantive right to receive the “full amount” of a victim's economic damages, either because the term “restitution” carries that meaning or because the voters intended that term to incorporate its statutory meaning at the time that restitution is imposed. We now consider the state's alternative argument that, when the voters amended Article I, section 42, in 2008, they intended that “restitution” be defined according to the statutory definition of that term at that time. The state suggests that, if Article I, section 42(1)(d), previously had created a right to restitution that was “illusory” because it was tied to the entirely discretionary statutory scheme in place in 1999, then the purpose of the 2008 amendments to Article I, sections 42 and 43, was to “rectif[y] that situation.”

We can dispense with that argument summarily. In 2008, the voters amended Article I, section 42, to provide victims with a “remedy by due course of law” for violation of their existing constitutional rights. Or. Const., Art. I, § 42(3)(a). The fact that the voters intended to guarantee a remedy for the violation of existing constitutional rights does not indicate an intent to change the substance of those rights themselves. We conclude that the 2008 amendments to Article I, section 42, do not evince voter intent to provide a constitutional right to the “full amount” of a victim's economic damages, as provided by Oregon statute.

In reaching that conclusion, we do not decide whether the constitutional right to “receive prompt restitution” is purely procedural or instead carries a substantive element and requires restitution in some amount or as measured by some standard. That is a question for another day, because, in this case, petitioner does not contend that Article I, section 42(1)(d), entitles her to receive a sum other than the “full amount” of her economic damages as required by ORS 137.106. Petitioner does not contend, for example, that the constitution entitles her to a “substantial” sum in restitution to compensate her for her loss. See Howell v. Boyle, 353 Or. 359, 362, 298 P.3d 1 (2013) (discussing constitutional “right to remedy” in terms of whether remedy is “substantial”). We therefore limit our holding to that necessary to decide this case: Article I, section 42(1)(d), does not grant petitioner a right to “restitution” in the “full amount” of her economic damages as that term is defined in ORS 137.106. This court does not have jurisdiction to determine the additional question whether the trial court violated petitioner's statutory rights when it awarded restitution in an amount limited to 10 percent of petitioner's economic damages.

The order of the circuit court is affirmed.