Lost Wages are Compensable Under the Restitution Statute.

State v. DeMello (HSC November 2, 2015)
Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC.

Restitution and Lost Wages. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). Restitution shall be “a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to: (a) Full value of stolen or damaged property . . . ; (b) Medical expenses; and (c) Funeral and burial expenses incurred as a result of the crime.” HRS § 706-646(3).

The Plain Language Rules: Lost Wages are Covered by Restitution Statute. The HSC here had to interpret the statute to see if this included lost wages. It started with the plain language of the statute. “Courts are bound, if rational and practicable, to give effect to all parts of a statute and no clause, sentence or word shall be construed as superfluous, void or insignificant if construction can be legitimately found which will give force to and preserve all words of the statute.” Dawes v. First Ins. Co. of Hawaii, Ltd., 77 Hawaii 117, 135, 883 P.2d 38, 56 (1994).

In examining the plain language of the restitution statute, the HSC held that the losses by the victim must be (1) reasonable, (2) verified, (3) suffered as a result of the defendant’s conduct, and (4) requested by the victim. This does not exclude lost wages. Such an interpretation, according to the HSC, “harmonizes” with HRS § 706-646(3), which calls for an amount “sufficient to reimburse any victim fully for” the losses. Moreover, the list subsection (3) is an “inclusive list” that does not foreclose the possibility of other kinds of losses. See, e.g., State v. Mita, 124 Hawaii 385, 391, 245 P.3d 458, 464 (2010) (phrase “shall include but not limited to” is an “inclusive, rather than exclusive, list of examples”). And so the HSC held that the statute includes reasonable, verifiable, and requested lost wages that were caused by the defendant’s conduct.

Legislative History Notwithstanding. The crux of the issue came from the legislative history. Courts “do not resort to legislative history to cloud a statutory text that is clear.” State v. Kalama, 94 Hawaii 60, 64, 8 P.3d 1224, 1228 (2000). According to the HSC, it has “repeatedly declined to rely on legislative history where the plain language did not produce an absurd result[.]”

In this case, the HSC examined the legislative history of the restitution statute. The statute was promulgated in 1998. At that time, various committees in the Legislature debated the inclusion of “therapy and wage loss,” but it ultimately did not make it into the final version. Later, the statute was amended in 2006 to its current form. There was no express discussion on wage loss, but there was the general intent to have a defendant fully compensate victims for their losses. According to the HSC, “whatever the 1998 Legislature may have said, in accordance with the clear language of the statute as of 2006, reasonable and verified lost wages are to be included in a restitution award.”

Justice Pollack’s Dissent. Justice Pollack disagreed with the majority’s interpretation of the statute. For him, “it is apparent that the legislature intended to limit the types of financial injuries that are compensable under the statute.” And because it was not clear if lost wages are covered, it was necessary to resort of legislative history.

Justice Pollack wrote that the legislative history showed that the legislature intended to exclude lost wages. Moreover, the rule of lenity supports the exclusion of lost wages. Because the majority’s decision “broadens the statute’s coverage well beyond its understood application by courts and practitioners for nearly twenty years and in a manner that is manifestly contrary to the legislature’s intent,” he dissented and would have affirmed the ICA. Judge Perkins, who sat by reason of a vacancy, joined.

 So What Now? The HSC has held that the Legislature’s statute included wage losses—despite evidence in the legislative history that it should not be included. The dissenters argued that that is not what the Legislature intended. And so the HSC has moved the ball into the court of the Legislature. Does the Legislature want to amend the statute to “fix” the ruling? Is that the true intent? Perhaps. In a weird way this is how democracy works.


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