Alteration of Kansas’ Restitution Scheme: Unpacking Arnett
by Bryan Cox, Johnson County Public Defender
On October 15, 2021, the Kansas Supreme Court ruled that restitution orders in criminal cases could not constitutionally be converted into civil judgments. The court did so in three separate cases, but the bulk of the court’s rationale was laid out in State v. Arnett, 496 P.3d 928 (2021), which was argued by Samuel Schirer, Appellate Defender. This article will provide a brief description of that case and holding, critique the court’s resolution of the issue, and — most importantly — offer some thoughts on how the holding is likely to arise in public defense.
The Court’s Holding
Ms. Arnett was charged with conspiracy to commit burglary because she loaned her car to her boyfriend in exchange for $200, and he used her vehicle to commit multiple burglaries. Pursuant to a plea agreement that was silent regarding restitution, Ms. Arnett pleaded guilty. At sentencing, the court — without any findings made by a jury — ordered Ms. Arnett to pay over $30,000 in restitution, jointly and severally with her co-defendants.
On appeal, Ms. Arnett argued that a judge determining restitution without findings by a jury violated her right to a jury trial under the United States and Kansas constitutions. The court disagreed with the argument based on the United States Constitution. It sided with the majority of federal circuit courts of appeal in deciding that restitution awards did not implicate the Sixth Amendment jury trial right, despite a recent dissent from Justices Gorsuch and Sotomayor, on a denial of certiorari in Hester v. United States, 139 S. Ct. 509 (2019), that suggested some disagreement amongst the justices on whether the Sixth Amendment applies.
But the Kansas Supreme Court agreed that the modern developments of Kansas’ criminal restitution statutes rendered them essentially the same as a civil judgment. And, because questions such as causation and the amount of damages would have been determined by a jury when the Kansas Constitution was adopted, the lack of a jury violated section 5 of the Kansas Constitution Bill of Rights, which would have guaranteed Ms. Arnett a jury trial on those factual questions.
The court then framed the question of how to remedy this situation as a choice between two alternatives: nullify all restitution orders, or fix the constitutional problem by striking down statutes that made criminal restitution orders essentially identical to civil judgments. The court chose the latter, and struck as unconstitutional the following statutes:
The last sentence of K.S.A. 2020 Supp. 22-3424(d)(1), as well as K.S.A. 60-4301 through 60-4303, which taken together required, and governed the process of, recording restitution orders the same as civil judgments; and
K.S.A. 2020 Supp. 21-6604(b)(2), which allowed restitution to be collected by civil garnishment.
Critique – Just summon a jury!
I believe that the court correctly determined that a jury-less restitution process leading to civil judgments (or their equivalent) violates the Kansas Constitution, but erred in how it remedied the issue. The more jurisprudentially sound remedy would have been to apply the canon of avoidance, read the whole of Kansas law — Constitution and statute — harmoniously, and to determine that because the legislature had brought restitution to the point where such awards necessitate jury findings, the Kansas Constitution then springs into action to provide for a jury. No additional statutes requiring the court to impanel a jury are necessary here; section 5 of the Kansas Constitution does that.
Consider, though, if the legislature deleted, or simply had never passed, a statute that specifically provided for a jury in a criminal prosecution. Following the Arnett court’s logic, the two options to fix this would be to either strike down every conviction, or to strike all of those parts of the criminal statutes that made them, well, crimes. This would disregard negotiated pleas, where such rights would likely have been waived, and would needlessly strike significant statutory provisions for all cases, regardless of whether a proper procedure had been followed in that case. So why not just summon a jury?
Summoning a jury would be more efficient in the above hypothetical, and as it pertains to restitution. In cases that go to trial, an additional instruction could ask the jury to determine what restitution the accused should be required to pay, based on the evidence elicited at trial. In cases that resolve by negotiation and plea, waiver of such a right could be incorporated as part of that negotiation. Moreover, providing for a jury would decrease subsequent litigation, which is now required under Arnett, and which I discuss more fully in the following subsection.
This remedy, however, would implicitly mean that the judiciary had been lax in doing its job; the court’s chosen remedy instead shifts blame to the legislature.
Using Arnett
Arnett may have limited impact on public defender practice because it comes into play on the long tail of the criminal process. The statutes that the Arnett court struck down govern the collection of restitution as a civil judgment. This happens after sentencing and outside of probation violation proceedings, and thus is potentially outside of the parameters of our court appointments in some cases. Private counsel, legal aid organizations, and civil rights organizations will therefore be the groups more likely to be called to help protect the benefits gained by this decision.
Public defenders may, however, see more aggressive and more frequent pursuit of probation violation proceedings for unpaid or incompletely paid restitution. Because garnishment is no longer automatic, prosecutors may wish to see full repayment occur within a criminal case. This could potentially result in longer terms of probation for low-level offenders with steep restitution judgments.
At such proceedings, public defenders should be prepared to address appropriate methods of enforcement of restitution. The Arnett court noted that, while it was striking the statutes that automatically authorized garnishment or execution, its ruling should not be read to completely foreclose the ability of the courts to use those mechanisms to enforce restitution. But, when considering those mechanisms, “the defendant still retains the ability to object to such garnishment and justify why garnishment is not appropriate, i.e., to show the court how he is taking reasonable steps to comply with the restitution order.”
Most importantly for our clients, public defenders should consider challenges to the collection fee on restitution paid to the court’s collection agent. The latter part of the stricken section K.S.A. 21-6604(b)(2) provided for the appointment of “an agent procured by the judicial administrator pursuant to K.S.A. 20-169… to collect the restitution on behalf of the victim.” K.S.A. 20-169, in turn, is where the statutory authorization for up to a 33% “cost of collection” administrative fee is found. This fee, based on the text of that statute, applies to court costs and fees as well as restitution. The Arnett court did not dig into 20-169 to redline out the specific provisions referencing restitution, but it should be argued that by removing the authority to appoint a collections agent in 21-6604(b)(2), the court removed the ability of that agent to charge or collect their fee. Thus, if your clients have large restitution fees that have ballooned due to being referred to the collection agent, you should consider challenging them when a PV is filed.