State v. Kirschner

The American Rule would not apply to bar the victim’s recovery of restitution for wages lost (ORS 137.106) while the victim appeared to testify as long as the State establishes that the costs “resulted from” Defendant’s criminal activity and were reasonably foreseeable.

Defendant challenged the imposition of restitution under ORS 137.106 for wages lost by the victim when the victim was subpoenaed to testify at Defendant’s criminal trial and restitution hearing. The Court of Appeals affirmed. On appeal, Defendant argued (1) to be recoverable as restitution, a victim’s economic damages must be reasonably foreseeable and (2) under ORCP 68, in civil actions, “costs and expenses” of litigation may be recoverable under that provision but are not considered “economic damages” because, under the American Rule, parties to civil action may not recover the costs incurred in that action as damages and the same should apply to restitution proceedings. The Court found that neither ORCP 68 nor the American Rule preclude a party from receiving litigation costs incurred in a separate proceeding as “economic damages” (see State v. Ramos, 358 Or 581, ___ P3d ___ (2016)). The Court also found that when a victim is subpoenaed to testify at a criminal trial or restitution proceeding, the rationale underlying the American Rule would not apply to bar the victim’s recovery of restitution for lost wages while the victim appeared to testify because restitution is a criminal sanction sought by the State, not by the victim (ORS 137.106(1)(a)), as long as the State establishes that the costs “resulted from” Defendant’s criminal activity and were reasonably foreseeable. The Court held the trial court did not err in awarding the victim’s wages as restitution under ORS 137.106. Decision of the Court of Appeals and judgment of the circuit court affirmed.