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State v. Strom

Supreme Court of North Dakota

January 15, 2019

State of North Dakota, Plaintiff and Appellee
v.
Melinda Ann Strom, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Julie A. Lawyer, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Bobbi B. Weiler, Bismarck, N.D., for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] Melinda Strom appeals from an amended criminal judgment and order for restitution. Strom argues the district court abused its discretion in awarding restitution because it did not consider her ability to pay as required by N.D.C.C. § 12.1-32-08(1). We declare the statute unconstitutional in part and affirm the restitution order and judgment.

         I

         [¶ 2] Strom pled guilty to misapplication of entrusted property in excess of $50, 000 in violation of N.D.C.C. § 12.1-23-07(1). Strom was sentenced to five years, all suspended for three years of supervised probation. A restitution hearing was held on April 9, 2018. The district court concluded that article I, § 25(1)(n) of the North Dakota Constitution, which was adopted in the 2016 election, overrides the requirement under N.D.C.C. § 12.1-32-08(1) to take into account the ability of the defendant to pay monetary reparations in setting the total amount of restitution. The district court issued the restitution order requiring Strom to make restitution in the amount of $690, 910.67. Strom timely appealed.

         II

         [¶ 3] Both Strom and the State frame the issue on appeal as whether article I, § 25(1)(n) of the North Dakota Constitution overrides prior law requiring the district court to consider a defendant's ability to pay when determining restitution. Strom argues the district court abused its discretion by ordering restitution without considering her ability to pay because she contends the constitution and statute can be reconciled. At oral argument the State argued the two provisions are in conflict and thus the statute is unconstitutional.

When reviewing a restitution order, we look to whether the district court acted "within the limits set by statute," which is a standard similar to our abuse of discretion standard. "A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law."

State v. Blue, 2018 ND 171, ¶ 13, 915 N.W.2d 122 (quoting State v. Carson, 2017 ND 196, ¶ 5, 900 N.W.2d 41). Questions of law are reviewed "de novo in determining whether or not the district court abused its discretion through misapplication or misinterpretation of the law." State v. Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77. Whether the district court properly determined that article I, § 25(1)(n) abrogates consideration of a defendant's ability to pay as limiting the total amount of restitution awarded under N.D.C.C. § 12.1-32-08(1) is a question of law. Blue, at ¶ 40 (Jensen, J., concurring and dissenting).

         [¶ 4] Section 12.1-32-08(1), N.D.C.C., lists three factors the court must consider when ordering restitution. At issue here, "the court shall take into account:... (b) [t]he ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations." N.D.C.C. § 12.1-32-08(1) (emphasis added). The statute continues, "[t]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection." Id. (emphasis added).

         [¶ 5] In addition to the statutory requirements, we must consider how article I, § 25(1)(n) of the North Dakota Constitution applies here. A crime victim has the "right to full and timely restitution in every case and from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct." N.D. Const. art. I, § 25(1)(n). We have not previously decided whether article I, § 25(1)(n) abrogates the required consideration of the defendant's ability to pay restitution under factor (b) of N.D.C.C. § 12.1-32-08(1). Blue, 2018 ND 171, ¶ 26, 915 N.W.2d 122; Kostelecky, 2018 ND 12, ¶ 17, 906 N.W.2d 77.

         [¶ 6] When interpreting a constitutional provision, "we apply general principles of statutory construction. In construing statutory and constitutional provisions, we will attempt to give meaning to every word, phrase, and sentence, and, if necessary, we will attempt to reconcile and harmonize potentially conflicting provisions." Kostelecky, 2018 ND 12, ¶ 8, 906 N.W.2d 77 (quoting State Bd. of Univ. & Sch. Lands v. City of Sherwood, 489 N.W.2d 584, 587 (N.D. 1992)). Absent an applicable definition, words enacted in statutes carry the plain, ...


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