Update: Read the analysis of the oral argument here.

On September 22, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. John D. Yerkey 2020-1392. At issue in this case is whether a crime victim may be awarded restitution for lost wages that resulted from her attendance at court proceedings during the prosecution of the criminal offense.

Case Background

J.D. filed for divorce from John Yerkey in Mahoning County in 2017 and obtained a civil protection order against him in 2018. The order prohibited any contact with J.D. in person, by telephone, or through electronic communication either directly or indirectly. After the CPO went into effect, J.D. moved to Columbiana County.

While the divorce action was pending in Mahoning County, Yerkey violated the CPO three times within five weeks, from June 30, 2018, to August 1, 2018. The first violation occurred when Yerkey arrived at J.D.’s home.  J.D. filed a complaint in Columbiana County Municipal Court, which resulted in additional conditions for Yerkey, namely an order prohibiting contact through social media, a prohibition against entering Columbiana County, where J.D. resided, and a prohibition on the possession and use of alcohol. The second violation occurred when Yerkey was seen driving by J.D.’s home. J.D. filed a report with the police, and this infraction resulted in additional charges. Finally, Yerkey contacted J.D. through social media, and once again, J.D. filed a police report, and again Yerkey was charged in the same county with a third violation of the CPO.

While the three charges were pending, it was discovered that Yerkey had previously been convicted in Mahoning County Court, in 2016 and 2017, for violating protection orders for domestic violence. With the addition of these two convictions, Yerkey’s three CPO violations were then subject to an enhancement. Yerkey’s cases were transferred to the Columbiana County Common Pleas Court, where he was charged in two cases for a total of three felonies of the fifth degree, pursuant to R.C. 2919.27(A)(1).  Yerkey pled guilty to one count in the first case, and in the second, which had two counts, he pled guilty to one count in the form of an Alford plea.

On May 20, 2019, Yerkey was sentenced to two four-year sentences of probation, to be served concurrently, under intensive supervision. At a restitution hearing for both cases, J.D. testified and presented documentation requesting compensation for attorney’s fees, medical bills, and lost wages as a result of attending court proceedings. On October 1, 2019, Columbiana County Court of Common Pleas Judge Megan L. Bickerton ordered Yerkey to pay J.D. restitution of $1,615.00 for her lost wages.

The Appeal

In a unanimous opinion written by Judge Cheryl Waite, and joined by Judges Carol Ann Robb and David D’Apolito, the Seventh District reversed the judgment granting restitution to J.D. for lost wages and modified the sentencing order accordingly. The Court reasoned the rights afforded under Article I Section 10(a) of the Ohio Constitution, also known as Marsy’s Law, must be construed within the framework of the existing statutes governing restitution and defining economic loss.  (RC.2929.32 and R.C. 2929.01(L)).

The appeals court found that lost wages resulting from voluntarily attending court proceedings do not meet the definition of economic loss as provided in the relevant statutes, which provide that the loss must have occurred “as a direct and proximate result of the commission of the offense.” In this case, the victim, who is not a party to the criminal proceedings, attended the court proceedings of her own volition; therefore, the lost wages are too far removed to be a direct and proximate result of the commission of the offense. Lost wages would be the direct and proximate result of the prosecution of the crime, but the General Assembly did not use the word prosecution in the statutory definition. Therefore, the trial court abused its discretion when it issued the restitution order for lost wages.

Key Statutes and Precedent

Ohio Constitution Article I Section 10(a) (Marsy’s Law )(“(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused: (1) to be treated with fairness and respect for the victim’s safety, dignity and privacy (2) to be present at all public proceedings involving the criminal offense, (7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim; (E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.”)

R.C. 2929.18(A)(1) (Affords the court the authority to impose financial sanctions – including payment of restitution to the victim of the offense – on the offender of a felony. The statute requires the restitution order to be based on “…an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.”)

R.C. 2929.01(L) (““Economic loss” means any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense and includes any loss of income due to lost time at work because of any injury caused to the victim…” )

Beckett v. Warren, 2010-Ohio-4 (If the meaning of a statute is unambiguous, the court looks to the statute’s plain language and applies it as written.)

State v. Williams, 2010-Ohio-3279 (7th Dist.) (A crime victim is not a party in the offender’s criminal proceedings.)

State v. Holt, 2011-Ohio-1582 (8th Dist.) (The trial court may order restitution if it is reasonably related to the loss suffered, and this can be established through testimony or documentary evidence.)

State v. Lalain, 2013-Ohio-3093 (“A trial court has the discretion to order restitution in an appropriate case and may base the amount it orders on a recommendation of the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, but the amount ordered cannot be greater than the amount of economic loss suffered as a direct and proximate result of the commission of the offense.”)

State v. Roach, 2017-Ohio-8511 (6^th Dist.) (Restitution is limited by statute to loss of income due to an injury suffered by a victim that occurred as a direct and proximate result of the commission of the crime; therefore, lost wages for court appearances related to the crime cannot be awarded.)

State v. Johnson, 2018-Ohio-3670 (8th Dist.) (The trial court must calculate the amount of restitution ordered to a reasonable degree of certainty by supporting the calculation with competent, credible evidence.)

Votes to Accept the Case

Yes: Chief Justice O’Conner, Justices Kennedy, DeWine, and Stewart

No:  Justices Fischer, Donnelly, and Brunner

State’s Proposition of Law I Accepted for Review

Victims are constitutionally entitled to full and timely restitution, including restitution for losses incurred throughout the prosecution of the criminal offense.

State’s Proposition of Law II Accepted for Review

Victims are constitutionally entitled to restitution for losses incurred throughout the prosecution of the criminal offense to protect victims’ constitutional rights to be present throughout the criminal justice process and heard when their rights are implicated.

State’s Argument

The trial court has the authority to award restitution to the victim of a criminal offense under R.C. 2929.18(A)(1). And R.C. 2929.01(L) definitionally permits restitution for any economic detriment suffered by a crime victim. The trial court in this case held lost wages incurred by the victim as a result of attending court proceedings were a direct and proximate result of the commission of the offense. The court did not abuse its discretion by ordering restitution because the court relied on credible evidence to discern the amount lost to a reasonable degree of certainty.

Further, as defined by R.C. 2929.01(L), economic loss lists various types of economic loss that could be included in an order for restitution. Although the statutory framework does not specifically list lost wages, the Supreme Court of Ohio, inTrans Rail Am., Inc. v. Enyeart, previously held the use of the word “included” means that the list is illustrative and not exhaustive. 

The Seventh District not only incorrectly construed Marsy’s Law within the narrow statutory framework, but in doing so also focused on the wrong word within the statute and held that lost wages were not a direct and proximate result of the commission of the offense, focusing on the word “commission”. The words “direct and proximate result” should have been the focus of the inquiry; the lost wages would not have occurred but for the commission of the offense, and they are, therefore, a direct and proximate result.

The provisions of Marsy’s Law are self-executing and “supersede all conflicting state laws.”  The Seventh District was obligated to review and reconcile both Marsy’s Law and the pertinent statutes to give effect to both, but they failed to do so. 

Marsy’s Law affords the victim expanded constitutional rights to “full and timely restitution” as well as the right to be present at and participate in the criminal proceedings. The right must include the right to recover economic losses suffered by the victim by participating in the prosecution of the offense; otherwise, the restitution would not be “full.” A victim involuntarily participates in criminal proceedings because of the defendant’s conduct, and Ohio’s voters and the General Assembly have protected them by passing Marsy’s Law and statutory protections. 

Ohio’s Fourth District Court of Appeals in State v. Shifflet, as well as other states – including Arizona, California, and Minnesota – have all held that it was appropriate to award restitution for lost wages to the victim for his or her attendance at the prosecution of the criminal offense. Ohio courts should ensure the constitutional requirement to provide a victim “full and timely restitution” is upheld by broadly interpreting existing statutes.  

Marsy’s Law has provided crime victims the constitutional right to justice and due process, including the right to be present and heard at all public proceedings involving the criminal offense where the victim’s rights are implicated. The grant of restitution by Ohio courts to victims for the economic losses incurred while exercising their constitutional right to be present and heard serves to ensure crime victims can exercise this right. 

The necessity of being present and heard at the criminal proceedings in this case is a direct result of the crime itself. Therefore, the expenses incurred by J.D. for exercising her constitutional right were involuntary; she would not have incurred the economic loss but for the criminal act. 

If victims are denied full restitution for lost wages, victims with lesser means to foot the expense will not have equal access to Ohio’s courts and justice. Article I, Section 16 of the Ohio Constitution guarantees “every person” the same “due course of law.” To uphold this guarantee, full and timely restitution should be granted to victims, including restitution for lost wages the victim incurred while exercising the right to be present and heard at the criminal proceedings. 

Yerkey’s Argument

The Seventh District Court of Appeals opinion should be affirmed. Before Marsy’s Law, victims were entitled to restitution, as provided by the Revised Code, and Marsy’s Law does not change the definition of restitution or the victim’s right to receive it. Because the laws are not in conflict, the appellate court applied the law as found in the Revised Code and held economic losses incurred by the victim during the prosecution of the offense are not a direct and proximate result of the commission of the crime; therefore, those wages were not owed as restitution. 

Prior to Marsy’s Law, this Court in State v. Lalain applied the language of R.C. 2929.18 when considering expenditures to be claimed as restitution. This Court found certain expenses were consequential costs incurred after the offense and were not the direct and proximate result of the commission of the theft. Lost wages incurred while attending court appearances are consequential damages and, therefore, would not be due in a restitution order. 

After the enactment of Marsy’s Law, this Court, in City of Centerville v. Knab, needed to define “victim.” The Court turned to R.C. 2929.18 to look for an answer, and not to Marsy’s Law. By turning to other statutory language in interpreting “victim” for restitution purposes, the Court impliedly approved the statute as the procedural mechanism used when determining an order of restitution.  

Further, the word “full” in Marsy’s Law is not in conflict with the Seventh District Court of Appeals ruling in this case, which determined the victim was entitled to full compensation for economic losses incurred as a direct and proximate result of the commission of the offense. The appellate court found the claim for lost wages did not meet the above definition, and therefore a restitution order should not be granted. Had the victim suffered losses incurred as the direct and proximate result of the actual underlying criminal conduct, then she would have been awarded restitution under both Marsy’s Law and the statutory language of R.C. 2929.18. 

Victims in Ohio have long had the statutory right to appear, or not, at the proceedings, even before the enactment of Marsy’s Law. The State argues if the alleged victim is not compensated for voluntarily attending the court proceedings, victim participation would be chilled, and victims would be “voiceless.” This claim overlooks the reality of the many ways victims are allowed to voice their wishes and concerns. They can communicate them directly to the Prosecutor, who provides a voice for the victim. Statutory procedure also provides a victim the opportunity to submit an oral or written impact statement to be heard at sentencing. Therefore, if a victim could not attend the proceedings for financial reasons, the victim would not be voiceless.  If the Court is to adopt the State’s argument, the floodgates of litigation on this issue would be opened. Restitution is for economic losses directly and proximately caused by the offense, not for the prosecution of the offense.

Arizona, California, and Minnesota are the minority of states that allow for lost wages due to appearances at court during the proceedings. In all three states, the language of the statute providing restitution to victims is broader than Ohio’s statute, and the award of lost wages fit the statutory definition. The award of lost wages does not fit into the Ohio statutory definition as written.

Finally, the State points to State v. Shifflet for the proposition that, even prior to Marsy’s Law, Ohio has awarded restitution for lost wages, and that this is significant in demonstrating how this Court should apply restitution law in this case. However, Shifflet is not binding on this Court and, in fact, another Ohio District, in State v. Roach held restitution for lost income can only be given when the lost income was due to an injury suffered by the victim directly caused by the criminal conduct.  

The Court should uphold the Seventh District’s reversal of the restitution order for lost wages for the above reasons. 

Amici in Support of the State

Ohio Prosecuting Attorneys Association 

The Ohio Prosecuting Attorneys Association (OPAA) is a private, non-profit trade organization that supports the state’s elected county prosecutors. OPAA works to ensure prosecuting attorneys have the ability to secure justice for crime victims by advocating for public policy that supports the same mission. Because victims are central to criminal prosecution and the pursuit of justice for these victims, the OPAA believes attendance should be strongly encouraged and restitution enforced as a matter of constitutional law. 

Marsy’s Law – Article I, Section 10a of the Ohio Constitution – creates a free-standing mandatory constitutional right for the victim to have “full and timely” restitution. The relationship between constitutional and statutory law places Marsy’s law above R.C. 2929.18(A)(1) – the statute authorizing the sentencing court to impose restitution. Thus, the statutory provision cannot limit the rights afforded in Marsy’s Law. The prior version of Section 10a stated that victim’s rights would exist “as the General Assembly shall define and provide by law.” The purpose of Marsy’s Law, as stated on the general election ballot, was to expand victims’ rights by ensuring “due process, respect, fairness, and justice for crime victims.” Marsy’s law followed through on this statement by eliminating the “provide by law” language and mandating that victim’s rights under the law “shall be self-executing.” Therefore, the rights under Marsy’s law exist as enforceable without legislative action or approval.  The phrase “full and timely restitution” in Marsy’s Law clearly includes any lost wages for attending court proceedings.

The Court should reverse the Seventh District Court of Appeals decision and reinstate the restitution order. 

OPPA’s Proposed Proposition of Law

The victim possesses a constitutional right to full restitution under Marsy’s Law – Article I, Section 10a, of the Ohio Constitution – including wages that are lost as result of the victim’s attendance at court proceedings. Because Marsy’s Law is self-executing, this right exists independently of legislation and is awardable to the victim regardless of whether Ohio statutory law affords the victim the same level of restitution. 

National Crime Victim Law Institute, Ohio Crime Victim Justice Center, Ohio Alliance to End Sexual Violence, Crime Victim Services, and Advocating Opportunity 

These Amici comprises non-profit advocacy groups and a federally designated advocacy coalition, who seek to ensure that the rights of victims, especially victims of sexual abuse and human trafficking, are upheld and that victims have the tools for recovery, including financial tools. The victim’s rights at stake in this case are particularly relevant to financially insecure victims, those often central to the advocacy work of the Amici. 

Marsy’s Law expands the rights afforded to victims of crimes and requires the constitutional rights afforded within the law to supersede all conflicting state laws. One of those rights is the right to full and timely restitution. The Seventh District Court of Appeals holding violated the victim’s right to restitution. It also violated the victim’s constitutional rights to be treated with fairness and respect to the victim’s dignity and the right to equal access to justice.  By incorrectly construing Marsy’s Law within the state statutory framework, the appeals court’s holding creates a disparate impact for victims who cannot afford to lose income to participate in criminal justice. This holding will not treat the financially insecure subset of victims fairly and with respect to their dignity, nor will it afford them equal access to justice.  This outcome is contrary to the purpose of Marsy’s Law which is to secure justice and due process for all crime victims. 

The Court should reverse the Seventh District Court of Appeals decision and reinstate the restitution order.

National Crime Victim Law Institute, Ohio Crime Victim Justice Center, Ohio Alliance to End Sexual Violence, Crime Victim Services, and Advocating Opportunity Proposed Counter Proposition of Law

The constitutional rights of victims to be treated with fairness and respect for their dignity, pursuant to the Ohio Constitution, and the right of these victims to access justice, pursuant to the Ohio and United States Constitutions, include the right to restitution for wages lost while attending court proceedings related to their victimization.

Amicus in Support of Yerkey

Office of the Ohio Public Defender 

The Office of the Ohio Public Defender (“OPD”) is a state agency whose primary mission is to advocate for the rights of indigent criminal defendants by providing representation in the criminal justice system. Because the OPD routinely handles criminal cases in Ohio courts, they offer the perspective of experienced practitioners.

When interpreting a constitutional provision ratified by direct vote, one must look to the plain meaning of the words as they appeared on the ballot and how the voters would have understood those words. The Marsy’s Law ballot language listed “the right to restitution” as a proposed victim’s right; the voters were not presented with a new definition of restitution, proposing a change to the word’s traditional meaning. Historically, as applied in Ohio to address the economic loss incurred by a victim due to a criminal offense, restitution has not included indirect costs incurred by an accuser, such as lost wages. These indirect costs result from the defendant exercising his or her constitutional right to a trial by jury and due process under the law. Defendants should not be punished for exercising these rights. Because the definition of restitution was not changed with the passage of Marsy’s Law, if Ohio wishes to amend the meaning of restitution to include this additional punishment, this should be accomplished through the General Assembly.

OPD urges the Court not to alter the definition of restitution, as part of criminal punishment, by upholding the Seventh District Court of Appeals decision.

OPD’s Proposed Proposition of Law

Because Marsy’s Law did not change the definition of “restitution,” defendants in criminal trials may not be required to pay the lost wages of accusers who attend trial-court proceedings.

Student Contributor: Susana Tolentino