Bad cases make for bad opinions.
I can see why Justice Benke gets a bit strident. Julie Watson was driving drunk -- with a BAC of .17 or .18 -- at 60 miles an hour. At 11:30 p.m. Without headlights. On sand dunes. She hits a 15-year old who's also riding on the dunes and severely injures him.
That's bad. Really bad. Something to be upset about.
What's at stake here is how much Julie has to pay in restitution. She offers a really, incredibly lame expert (a retired CHP officer) who says that the victim was 20 to 25 percent at fault. The trial judge decides not to reduce the restitution award for comparative negligence, so orders Julie to pay the full amount of the victim's medical bills: a little under $100,000.
All of that makes sense. Justice Benke's correct, in my view, that a trial court isn't required to apply comparative fault principles at the restitution stage. It could if it wants. But especially here, where the perpetrator has committed a fairly dangerous crime and the victim's purported negligence is very low, I think it entirely within the trial court's discretion to order full restitution.
Justice Benke's opinion says the same thing.
Her opinion is nonetheless much broader, and much more aggressive, than that. Her opinion says that this isn't one of those "exceptional" cases in which applying comparative fault would be proper. She includes a great deal of analysis that's profoundly critical of applying comparative fault in the restitution context. Her opinion reads -- and perhaps accurately reflects her belief -- that courts should almost never reduce restitution awards for the comparative negligence of the victim. That's for civil courts, not criminal courts.
That's where Justice Benke and I part ways.
I agree that trial courts don't have to apply comparative negligence principles. But I'm perfectly happy for them to apply it as well. Very much up to them, in my view. In cases like this one, I definitely could see not reducing the award. But even here, were it true that the victim was a quarter or so at fault for the accident, I would have abolutely no problem slicing the restitution down to an appropriate amount. For the exact same reasons we do so on the civil side. Even when, as here, there is negligence per se.
For me, it doesn't at all need to be an "exceptional" case for restitution orders to apply comparative negligence principles. Criminal restitution orders are already permissibly incredibly broad. If a trial court, in its discretion, decides that the defendant is only partially at fault, I have no problem with the restitution order reflecting this reality.
So I'm okay with the result here. But nonetheless think that the rhetoric (and resulting holding) of the opinion goes a bit too far.
