As I was reading the decision in State v. Gahart, something started bothering me. It wasn’t the holding in the decision, and it wasn’t the court’s analysis. It took me a bit to recognize what wasn’t sitting well with me, and once I figured it out I apparently felt strongly enough about it to write my first blog post in forever. (Oh wow, it’s been a year and a half. Why am I so bad at this?)
Let’s start with the facts of the case, which appeared to be undisputed. The State’s brief provides the best summary out of all of the materials:
Here, the State charged Mark Gahart with operating his vehicle under the influence with a minor passenger present. He drove impaired with his minor daughter in the vehicle. After dropping his daughter off with her mother, he continued to drive under the influence and crashed into another vehicle, injuring its driver. Gahart fled the scene and tried to conceal his vehicle. But law enforcement found him and the State charged him for his criminal conduct.
The minor passenger’s mother sought restitution as a crime victim. The circuit court denied the restitution request, reasoning that it was not legally authorized to order restitution. Specifically, the court thought driving impaired with a minor passenger was a victimless crime, so there was no victim to compensate under the restitution statute.
In light of that conclusion, the circuit court didn’t bother addressing the actual merits of the restitution request.
Does litigation actually kill trees in this increasingly paperless society? I don’t know, but I needed an image for this post.
After reading the briefs that were filed in the Court of Appeals, I think this legal question is actually a bit more complex than I’d initially given the circuit court credit for. Out-of-state readers may find this hard to believe, but in Wisconsin the first Operating While Under the Influence offense is not a criminal matter. Since 2009, however, this is not true when there is a minor under 16 years of age in the vehicle. One of the arguments that the defendant in this case made was that having a child in the car isn’t an element of the offense for purposes of this analysis, but rather a penalty enhancer that merely increases the punishment for the underlying offense. The Court of Appeals disagreed, and I can’t say I take too much exception to its conclusion:
The Legislature has determined to criminally punish and deter drivers who subject minors to the grave risks associated with drunk driving, identifying a minor as one against whom a crime has been committed. We reject Gahart’s contention that this is a victimless crime. As reported by his minor daughter’s mother, Gahart placed his daughter in the vehicle and drove erratically from Burlington to Kenosha, refused to slow down, followed other vehicles too closely, and frequently attempted to pass others. By directing his daughter to ride in a vehicle he was too intoxicated to drive safely, Gahart committed a crime against her.
¶ 13. As a result, the Court of Appeals reversed the circuit court’s decision, and remanded the case back down to the circuit court “to conduct further proceedings to determine whether an award of restitution is appropriate.” ¶ 14.
So what’s my problem? Because the circuit court ended its analysis without getting to the merits of the restitution request, the Court of Appeals wasn’t asked to address the merits of the restitution request itself, and so it spends very little time discussing the restitution request itself. Here is that discussion in its entirety:
Before sentencing, the circuit court received a request for restitution from the minor passenger’s mother, based on the minor’s status as a victim. She sought to recover expenses and fees she incurred in a family court proceeding with Gahart, which she contended arose out of the drunk driving incident.
¶ 4. The State’s brief filed in the Court of Appeals provides a bit more detail:
Prior to the sentencing, the court received a request for restitution from the minor passenger’s mother. The minor passenger’s mother incurred expenses and fees in a family court proceeding as a result of Gahart’s crimes. The minor passenger’s mother later explained Gahart had threatened to file contempt charges against her if she withheld their child from him. She described having “no choice but to file in family court to keep her [daughter] safe.” The minor passenger’s mother sought $13,250 in restitution for expenses incurred in family court related to action taken in response to Gahart’s impaired driving with her minor daughter in the vehicle.
(Internal citations omitted.) My issue isn’t that the restitution request was made by the child’s mother; there doesn’t appear to have been any dispute “that if the minor is a victim, the nonoffending parent could also be a victim and have a right to restitution if warranted.” ¶ 8.
What I think bothers me is that these arguments are being made in the State’s brief, i.e. a brief filed by the State of Wisconsin. Remember that victims are not parties in criminal cases. This case is State of Wisconsin v. Mark Gahart, not Daughter v. Mark Gahart or Ex-Wife v. Mark Gahart. Victims have a right to restitution in criminal cases, of course, and the State (i.e. the prosecutor) has a duty to convey any restitution requests to the judge when a defendant is sentenced. But the prosecutor doesn’t represent the victim, and doesn’t necessarily argue in favor of such a restitution request.
If the State doesn’t represent the victim in the circuit court, why is the State litigating this case on appeal? The Court of Appeals made it clear in its decision that the State wasn’t challenging the convictions or the sentence in any way; instead, the Court of Appeals explains, “The State’s appeal raises the narrow issue of whether the minor passenger has a right to restitution.” ¶ 1. Moreover, the restitution being requested is $13,250 “for expenses incurred in family court,” which sounds a lot like attorney fees to me. Why has the State of Wisconsin, which doesn’t represent the defendant’s ex-wife, filed an appeal on her behalf and made arguments to the Court of Appeals in favor of her restitution request? Why has the Wisconsin Department of Justice (i.e. the State Attorney General) filed briefs as the appellant in this matter instead of the ex-wife’s attorney?
I know the practical answers to this question. The prosecutor doesn’t represent the victim, but does have an obligation to protect victims’ rights. And the Wisconsin DOJ filed the briefs because the defendant was also charged with, and pled guilty to, a felony offense for the hit and run with injury that occurred after he dropped off his child; the Attorney General automatically represents the State of Wisconsin in an appeal of a felony matter, even though this appeal has nothing to do with the felony conviction.
But the practical answers, while technically correct (i.e. the best kind of correct), don’t make me feel any better. The defendant’s ex-wife apparently incurred over $13,000 in their family court case, and received, in effect, free representation from Wisconsin taxpayers in getting her request for reimbursement to be heard. If she had any claim to such a reimbursement in the family court case, her attorney could have made it there. And if she has no such claim in the family court case, why should she have the right to make that request in a criminal case in which she isn’t a party, and with the Attorney General basically representing her position for free in the Court of Appeals?
I also know the technically correct answer to those questions, but they don’t make me feel any less compelled to write this blog post. The State isn’t advocating for this restitution request to be granted, but merely advocating for it to be heard. And the Court of Appeals agreed with the State’s request that its decision be published, so the legal question is apparently novel and significant enough to be precedential. And, paradoxically, the defendant has an incentive to not object to the State doing this, since it avoids the possibility of him being on the hook for even more expenses if she had to incur them by making these arguments instead of the State.
To the extent that this situation is a problem, how could it have been avoided? I think it would have been if the circuit court had chosen to reach the merits of the restitution request and denied it. The circuit court could have made the record, as Darrell Brooks would say, regarding the merits of this restitution request, and concluded that it would deny the request even if the minor was a victim. If the circuit court had done that, then there would have been no grounds, or at least no incentive, for the State to file an appeal. Even granting the restitution request may have been more efficient, since it would have given the defendant himself the opportunity to choose not to appeal, and could have saved him the costs associated with the appeal and the subsequent hearings that will now be required.
Was any of it worth it in the end? Were any of the words spent on this appeal worth the time and effort spent on them? Am I referring to the appeal itself or to this post? Tell me which you think in the comments below.