Judge upholds $36.6 million Eagle Creek restitution

Smallest of the 11 complaints turned down in ruling issued Monday

In a six-page ruling, Circuit Court Judge John A. Olson on Monday upheld all but a fraction of the $36.6 million in restitution requested by the Hood River County District Attorney’s Office that a Vancouver youth pay for damages in the September 2017 Eagle Creek fire.

The youth, who turns 16 this month, will be required, formally, to repay the amount, but realistically, Olson averred, the restitution bill serves a purpose beyond financial remuneration. In his ruling, Olson invoked the statutory aim of “responsibility, accountability, and reformation.”

“In short, I’m satisfied that the restitution ordered in this case bears a sufficient relationship to the gravity of the offense for which the youth is adjudicated,” Olson wrote.

If the youth makes a good faith effort to pay what he can over the next 10 years, the opportunity exists for the judgement to be excused after that. The youth will need to start paying off his debt as soon as the judgment is formally prepared, signed and recorded, according to Court Administrator Angie Tennison.

Olson stressed in his ruling that the amount was fair and he rejected defense attorney Jack Morris’ claim in the May 17 restitution hearing that the $36.6 million requested was “absolutely silly” and violated his client’s rights.

Olson wrote, “Having reviewed the arguments presented by the parties, the court is persuaded that an award of more than $36 million in restitution does not violate either the state or federal constitution.”

Morris was unavailable for comment before press time.

Two claims, for $4,563 and $8,111, were denied by the judge, who ruled that they did not qualify under the law. They pertained to treatment one victim claimed her son needed as a result of mental trauma from the fire, costs of a hip replacement surgery, rental car fee, and the cost of removing a dead tree from one claimant “to rid her yard of combustibles.”

Olson wrote, “Although I view this as a closer call, I conclude that voluntary precautionary expenditures made in response to a threat caused by the fire do not establish the requisite causation.”

This yielded a total claim of $36,618,330.24. The largest single claim is U.S. Forest Service, for $21,113,755. Oregon Department of Transportation’s claim is for $12,500,000. Oregon State Fire Marshal’s claim is for $1,643,035 and Union Pacific Railroad’s is for $1,048,000. Oregon State Parks’ claim is for $31,550; Trail Club of Oregon’s is $168,00; and Heuker Properties’ claim is for $100,000. Other private claims were for $5,000 and $9,793.

“It’s an extraordinary amount, and an extraordinary amount of loss,” Olson said in the May 17 hearing. The financial restitution will be on top of the 2,080 hours of community service the court ordered the juvenile to perform in an earlier restitution hearing this spring. Because of the boy’s juvenile status, the court has not revealed his name.

In his ruling Olson stated, “As the Supreme Court has explained, ‘the theory of restitution is penological in nature: it is intended to serve rehabilitative and deterrent purposes by causing a defendant to appreciate the relationship between the criminal activity and the damage suffered by the victim,’” Olson wrote.

“This is certainly true, if not more true, in the context of a juvenile delinquency proceeding,” Olson stated. “In the statute setting forth the purposes of the juvenile system, the legislature has declared that the system is founded on — and therefore an award of restitution is relevant to — the youth offender’s personal responsibility, accountability and reformation within the context of public safety.

“Because restitution is penal in nature and not a quasi-civil recovery device, the restitution statutory scheme must not violate Article 1, Section 16 of the Oregon Constitution prohibiting cruel and unusual punishment, and requiring that penalties be proportioned to the offense or the Eighth Amendment to the U.S. Constitution, prohibiting cruel and unusual punishment.”

Olson also wrote that, “More importantly, there are a number of ‘safety valves’ within Oregon Revised Statutes which serve to ensure that the restitution statute as applied in any particular case, even one as extreme as this one, does not ‘shock the moral sense of reasonable people’ first, when the court is satisfied that the youth is unable to pay the judgement in full at the time the judgment is entered, the court may delay enforcement of the restitution.”

Second, Olson wrote, “The judgement is in favor of the state (on behalf of the victim) and may only be enforced by the state. Third, the court may authorize and appropriate supervising authority to establish a payment schedule, and the statute requires the supervising authority to take in consideration a number of factors in establishing the payment schedule (including the youth’s financial resources, with due regard to the other obligations of the youth, and the rehabilitative effect on the youth offender of the payment of restitution and the method of payment.”

Finally, Olson, noted, the court can grant a full or partial satisfaction of the restitution judgement after 10 years if the youth successfully completes probation, does not commit additional offenses and complies with the payment plans.

“The point is not ‘is he paying $1,000 a month?’ but ‘is he paying a little something?’” District Attorney John Sewell said last week. “That’s the question, and that’s the question that will be reviewed while his case is reviewed periodically while he is on probation. And at the 10-year mark, when he comes in and says, ‘I’d like to have this debt removed from my judgment,’ that will be the judge’s call then.”

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