This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-551

 

 

In the Matter of the Welfare of:  K.D.R., a Minor Child.

 

Filed November 27, 2001

Affirmed

Schumacher, Judge

Dissenting, Crippen, Judge

 

Mower County District Court

File No. J10050744

 

 

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant K.D.R.)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Patrick A. Oman, Mower County Attorney, Jonathan P. Olson, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent state)

 

 

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

            This appeal is from a restitution order issued as part of a disposition for the delinquent act of terroristic threats committed against appellant K.D.R.'s school.  Because we conclude the district court did not abuse its discretion in ordering the restitution, we affirm.

FACTS

            Appellant K.D.R. was charged in a delinquency petition with having committed terroristic threats and fifth-degree assault.  The charges arose from the October 16, 2000 discovery of a bomb threat written on a mirror in the boy's bathroom at Southland High School. 

            K.D.R. entered an admission to the petition's charge of committing terroristic threats.  The district court accepted the admission, dismissed the fifth-degree assault charge and ordered a predisposition investigation.  Before the disposition hearing, the school district requested restitution for administrative costs, the costs of tutoring K.D.R., who had been expelled following the bomb threat, and for the district's attorney fees in the expulsion proceeding.  K.D.R. challenged the district's restitution claims.  Following a hearing, the court ordered K.D.R. to pay restitution of $2,798.90 for the tutoring costs and $1,499.09 for the district's attorney fees.  The court declined to order restitution for the administrative costs claimed by the district.

D E C I S I O N

            "A trial court has wide discretion in ordering reasonable restitution."  State v. Muller, 358 N.W.2d 72, 76 (Minn. App. 1984).  Construction of the restitution statute presents a question of law that is fully reviewable by an appellate court.  See State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000); In re Welfare of D.D.G., 532 N.W.2d 279, 280 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

            K.D.R. argues that the district court erred in imposing restitution for costs that the district sustained as a result of the expulsion process, not as a direct result of the criminal conduct itself.

            The restitution statute allows a victim of a crime to make a

request for restitution [which] may include, but is not limited to, any out-of-pocket losses resulting from the crime, including * * * *.

 

Minn. Stat. § 611A.04, subd. 1(a) (2000) (emphasis added).  This language is non-exclusive, and has been recognized as "broad language" giving the district court "significant discretion."  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied 528 U.S. 1165 (2000). 

            This court has affirmed an award of restitution for reward money paid by a school in the course of investigating a bomb threat.  D.D.G., 532 N.W.2d at 282-83.  The school's decision in D.D.G. to offer the reward was, like the district's decision to expel K.D.R. here, somewhat independent of the criminal act itself, although certainly prompted by it.  We believe the expulsion, like the reward in D.D.G., was sufficiently prompted by the bomb threat to support an award of restitution for the costs incurred in it.

            K.D.R. cites State v. Dendy, 520 N.W.2d 411, 414 (Minn. App. 1994), in which this court held that a landlord's costs of repairing a door damaged by police in executing a search warrant at the defendant's apartment could not be recovered in restitution.   But in Dendy the costs resulted from the act of a third party.  Here, the school district, the victim of the offense, made reasonable decisions in response to K.D.R.'s acts, and is entitled to restitution.

            K.D.R. also argues that because the Pupil Fair Dismissal Act (PFDA) mandates that the district provide him alternative educational services and guarantees him due process in the expulsion proceeding, he may not be required to pay either the tutoring costs or the attorney fees.  See Minn. Stat. §§ 121A.45, subd. 2(c) (providing that dismissal, including expulsion, for conduct endangering other pupils is discretionary), 121A.47 (providing due process rights in expulsion proceeding), 121A.55(a) (providing district's continued responsibility for student's education during expulsion period) (2000).  The school district provided a tutor for K.D.R. during the expulsion.  The district could not have charged K.D.R. for that mandated service.  We conclude, however, that the district court, in the exercise of its authority to determine the appropriate punishment for a criminal act in a juvenile delinquency proceeding, is not barred from ordering K.D.R. to reimburse the school for the same costs as part of a restitution obligation.  Whether those costs, as well as the attorney fees incurred in the expulsion proceeding, should be assessed against a juvenile presents a policy issue.  That issue involves the policies and purposes reflected in the restitution statute as well as the policies reflected in the PFDA.  We conclude that the district court did not abuse its discretion in resolving that issue as it did.

Affirmed.

 

CRIPPEN, J., dissenting

            The school district’s costs were not the direct result of K.D.R.’s delinquent act and should not be assessed against a student.

            The statute defining the criteria for restitution directs the court to consider “the amount of economic loss sustained by the victim as a result of the offense.”  Minn. Stat. § 611A.045, subd. 1(a)(1) (2000).  A “victim” is defined as one who suffers loss “as a result of a crime.”  Minn. Stat. § 611A.01(b) (2000).  This court has held that this definition “does not allow restitution for indirect damages.”  State v. Dendy, 520 N.W.2d 411, 414 (Minn. App. 1994). 

            Cases cited in the majority opinion do not give us authority to avoid the statutory requirement of direct causation.  In Tenerelli, only the reasonableness of the restitution claim was at issue, not the causation requirement.  See State v. Tenerelli, 598 N.W.2d 668, 671-72 (Minn. 1999).  In D.D.G., the school offered a reward as a necessary step in solving the bomb threat itself.  In re Welfare of D.D.G., 532 N.W.2d 279, 282 (Minn. App. 1995).   Here, the expulsion proceeding was initiated later, as a result of the  district’s independent policy decision.  It cannot be construed as a direct result of the bomb threat because the district had discretion to forego any expulsion and seek a different disciplinary penalty.

            It is also significant that the district court’s restitution award seriously conflicts with the policies underlying the Pupil Fair Dismissal Act.  Even if the Act does not strictly bar restitution for these costs, it certainly counsels against such harshness in matters of public education. 

It is questionable, I suggest, whether an adult criminal defendant committing a crime against his employer could be assessed restitution for his employer’s costs in terminating him.  The law should be even less apt to impose costs on a child for whom services are required under the Pupil Fair Dismissal Act.

            For all of these reasons, I respectfully dissent and would reverse the restitution order.