State v. Hand

Leben, J.,

dissenting: K.S.A. 21-4610(d)(l) provides for restitution “for the damage or loss caused by the defendant’s crime.” That seems straightforward enough: the district court concluded from the evidence before it that the insurance premium of the victim of Adam Hand’s crimes was hiked by $345 each year for 3 years as a result of those crimes. So the statute seems to authorize recovery of the increased premiums, a loss to the victim caused by the crime.

Notwithstanding the plain language of this statute, the appellate courts of Kansas have recognized that there are some limits here. So, for example, a crime victim may not recover the costs of an attorney hired to provide advice to the victim about the criminal prosecution — which is prosecuted by an attorney representing the State, not the victim. State v. Hunziker, 274 Kan. 655, 667-68, 56 P.3d 202 (2002). The Hunziker court advised that “tangential” costs are not recoverable. 274 Kan. at 667.

What exactly is meant by “tangential” is not altogether clear, but that word is not found in K.S.A. 21-4610(d)(l), and our Supreme Court has emphasized in recent cases that words not found in a statute generally should not be added when interpreting that statute. E.g., Hill v. Kansas Dept. of Labor, 292 Kan. 17, 23, 248 P.3d 1287 (2011); Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009). Moreover, applying standard methods of statutory interpretation to our case suggests that the *909plain language should be held to mean what it says — that these increased insurance premiums, which the district court found were caused by the defendant’s crime, are recoverable in restitution.

Every statutory-interpretation case must start with the statute’s words. As I’ve already noted, this statute provides restitution “for the damage or loss caused by the defendant’s crime,” and it lacks stronger language like “directly caused by the defendant’s crime” or an exception for incidental, consequential, or tangential losses.

Next up for consideration is the statute’s purpose. A primary purpose of restitution is to make the victim whole. State v. Rhodes, 31 Kan. App. 2d 1040, 1041-42, 77 P.3d 502 (2003). Here lies my disagreement with the majority. In its analysis, “the homeowner’s decision to file an insurance claim was the direct cause of the surcharge,” and the homeowner has been made whole through recovery of the value of the television — less the deductible — from the insurance company plus a restitution award for the amount of the deductible.

But if the purpose of restitution is to make a crime victim whole, do we really want to penalize a crime victim who insures against theft losses? I think not. A person who has no insurance — or who chooses to seek restitution rather than rely first upon insurance coverage — leaves his or her recovery to the chance that (a) the defendant will be found guilty beyond a reasonable doubt, (b) a restitution order will be entered, (c) a convicted criminal will, while on probation, earn enough money to pay the restitution amount in full, and (d) that convicted criminal will, while on probation, choose to pay the restitution in full. Under that view, much must go right for the victim to be made whole, as our legislature intended.

Under the majority’s view, the crime victim in Hand’s case, who had insuránce, recovers the fair-market value of the television set (with $250 of that amount coming through the restitution order), but that recovery will be offset by higher insurance premiums of $1,035 over the next 3 years. I believe that the district court’s authority to enter a restitution award “for the damage or loss caused *910by the defendant’s crime” is sufficient to sustain the district court’s restitution order for the increased insurance premiums this crime victim must pay.

I would therefore affirm the district court’s restitution order.