The South Dakota Supreme Court deals a blow to victim's rights (Legislators, are you listening?)

In an Associated Press article in today's Rapid City Journal, it looks like in an unusual move, the South Dakota Supreme Court sided with vandals and criminals and said that people who destroy property only have to pay the actual cash value on what they destroy, instead of replacement value:
Crime victims are not entitled to full replacement value for property that is damaged or destroyed, the South Dakota Supreme Court ruled Wednesday.

The decision came in a Custer County case that involved Jerrold Ray Martin. He pleaded guilty last year to destroying property owned by Michael and Paula Kear of Buffalo Gap.

After Martin got into an argument with the couple at a bar, he went to their home and destroyed virtually everything in it on Christmas Eve 2004. Among things smashed and destroyed were bookcases, a computer, antique lamps, several guns, an aquarium, an oriental rug and a couch.


“None of the listed values were a reflection of fair market value, nor did they contain any diminution for wear and tear,” wrote Chris Beesley, Martin’s attorney.

The Kears are not owed the original prices they paid for things or current prices to replace them as new, Beesley continued.

The Supreme Court agreed, sending the issue back to Tice for refigured damages


Deputy Attorney General Craig Eichstadt had argued that restitution should place people in basically the same position as they were in before becoming crime victims.

“It would be unjust to force them to accept secondhand or substandard items as a replacement for their destroyed property,” the state lawyer wrote.

“The victims are not being unjustly enriched, but it would be unjust to force them to accept secondhand or substandard items as replacement for destroyed property,” Eichstadt added.

Read it all here. And am I the only one who thinks that's crazy talk? This one is going to need to be fixed in the legislature, and fast.

If, for example, I have a couple of juvenile delinquents in the neighborhood who lack for parenting, and they decide to come in and destroy my belongings, aside from making sure they're incarcerated, I'm going to turn in a claim for my property to my insurer.

I carry replacement value coverage for my property, so aside from my deductible, I'll be made whole. But now, it's my insurer (and their premium payers) who will be screwed. Because while they'll pay replacement to me, the State Supreme Court is saying that all they can possibly recover from the criminals is A.C.V. (Actual Cash Value), which can leave a huge gap that all premium payers will have to make up for in higher insurance premiums.

And what about the people who carry no insurance, or only actual cash value coverage? They're even worse off. Because now they won't at least have an insurer going to bat for them. And now they're going to be victimized twice.

While the court is noting that they can recover the actual cash value of the property, from spending several years as an investigator for the Division of Insurance, and over 15 years as an auctioneer (who has done personal property appraisals myself), I can tell you with first hand knowledge that while something might be worth "X" it is not a guarantee that you can find one of equal age and wear for that cost. So, while an adjuster or appraiser might value your big screen TV at $500 because of age and depreciation, just try to go buy one in Buffalo Gap (as the victims in this case were from) for that price. It isn't going to happen.

And so not only are they left without their property because of a crime, now they can't afford to replace it because of a system that is more interested in being fair to the criminal than the victim.

Believe me, as a member of a family being reimbursed over $160,000 (taken criminally) at the nominal rate of $250 a month, I've got plenty of issues with how victims are taken care of in South Dakota.

Hopefully legislators can fix this problem before many other victims are re-victimized by the system that's supposed to support them.


Unknown said…
But you thought just a few days ago that judges did fine, and there were plenty of checks and balances to assure that they kept doing fine. Now, no matter what the legislature does on this issue, the victims in this case are at the end of the line in their search for justice.

At some point, the judicial process has to end, whether you agree with the result or not. I haven't read the decision yet, but as Pat points out, the solution is probably a legislative one. And that is part of the overall checks and balances of our triparite government.

Believe me, as an attorney, I don't always like the results handed to my clients by judges, juries, and justices. But there is not a better system of justice yet devised.

Best regards,

Anonymous said…
1. Did you read the opinion, PP? It does not say what you say it says.

2. Questions of victim's rights aside, PP, you need to understand that your insurance company is not getting "screwed", and you're not going to get screwed with higher premiums.

The insurance company sets premiums based on risk/cost analysis. There is not a "huge gap" created here. The difference between cost of replacment and actual cash value is one of numerous costs associated with your policy.

In this situation, here are the costs and risks: (i) whether or not your property will ever suffer damage; (ii) the cost of paying out on the policy (either acv or replacement, depending on the policy); (iii) the cost of otherwise administrating this policy, i.e. paying claims adjusters to get on the phone with you to resolve the issue, mailing you annual statements, etc.

THEN, the insurance company figures in some calculation about how much money it can expect to get back from 3rd parties.....which includes another set of risks and costs, including (a) selling the damaged goods for salvage value; (b) finding the person responsible so he can reimburse the insurance company...which often never happens; (c) if they are found, the risk of whether or not the person responsible for the damage can be legally held to pay for the damage (never a slam dunk...and always involving paying interest on the claim you just paid while you wait for the legal system to work....not to mention the costs of hiring attorneys or claims investigators to facilitate this process); (d) the risk that person will have not even have funds to pay for the damage, even if they are legally determined responsible... or the risk that they will have to pay out very very slowly, i.e., $250 per month for 51 years.

THEN, of course, you need to realize that insurance companies aren't generally expecting they can hold these third parties responsible for "Replacement Costs". Can you imagine if you got in a car accident and the injured party was driving a 1995 Lexus, and you were told you had to buy them a brand new Lexus, because that's what the victim originally had? That's ludicrous. They have a car worth market value for a 1995 Lexus. And that's the standard we already use for compensating victims.

The Supreme Court decision may invite a discussion about victim's rights, but it should not be used to argue that we're going to pay higher premiums.

People should read the opinion first before posting, lest we get off on a straw-man discussion.
Anonymous said…
I mostly agree with anon 11:39 with regard to insurance. I also, believe that criminals should pay for the damage they caused. However, if somebody trashes my 1999 Ford Explorer with 200,000 miles, am I entitled to 2007 Explorer?

Additionally, it is clear the RC Journal doesn't know how to read an opinion. The SC sent the case back to the trial court because it didn't follow the law. There is ample discussion in the case for the court to address the issues raised by PP.
The victim should be put back in to the same position as before the damgage occurred NOT a better position.
Anonymous said…
I don't get it. Why shouldn't the vicrem be ut into a better position after s/he has been assulted than before? How else do you compensate the victim for the atrociousness of the crime? It's not as though the victim can go back to the same life. S/he has lost something intangible. There has to be some way to compensate for that. And it should be the perp who pays, IMHO.
Anonymous said…
Actual cash value has always been the law on restitution. Where have you been? It's incumbent on the victim to account for costs of time to procure estimates, substitute goods or services and other costs - and bring those to the judge in order to get themselves back into the position they occupied before the injustice.

The travesty occurs in cases of juvenile restitution. In almost all cases a juvenile and his parents/guardians liability for restitution is capped at $1,500. That's $1,500. There is an automobile exception, but to claim it one must jump many hurdles. The legislature is to blame for this law. Think back at the juveniles that ransacked a Pennington Co school in excess of $150k, and all the other recent cases of juvenile vandalism. If someone in the family were held liable, there would be a lot less malfeasance. The party of personal responsibilty and family values should address this.
Anonymous said…
The case dealt with criminal restitution. The property owner may still have a civil damage claim against the wrongdoers--I'd still like to see the legislature make clear that in awarding restitution, a court may award replacement value, as a concept, but it's not like the victim is also derived of a civil remedy.
Anonymous said…
Opinion just interprets what the legislature has set forth. This is not the fault of the court. This issue rests at the feet of the legislature. If you don't like the result, change the law.
Anonymous said…
It looks to me like the supreme court got it right. They ruled that replacement value is one factor the trial court may consider when adding up restitution, but the court must also take into consideration evidence presented about actual value of the property.

It's fair that the criminal pays for damage he's done, but it's not fair to replace a 1999 explorer with a 2007 explorer. The victim should be compensated, but not unjustly enriched.

The bottom line is that trial courts have a lot of discretion in how much restitution to award, but they are not free to disregard evidence of actual cash value.
PP said…
It's my belief that cars are a different thing, as all auto policies are written on an ACV basis.

But property insurance is a different deal. Because of the difference between types of coverage, there will clearly be the haves and have nots.

And insurance issues aside, why should a victim be left without the property he had and also without the ability to replace it because the committer of a crime is allowed to depreciate what he destroyed.

That's my point. I'm not talking about enrichment. I'm talking about putting the victim back where they were before the loss, absent their innocence and peace of mind.
Anonymous said…
PP misses the entire point of the supreme court decision. The gist of the decision is that replacement cost is not automatically the measure of restitution when the defendant puts on evidence that actual value is less. The trial court must consider all evidence and come up with an amount that compensates the victim fairly (no unjust enrichment).

Just as no victim should expect a 2007 explorer as restitution for their 1999 explorer, neither should they expect new items to replace other types of old items where comparable goods are available. If comparable used goods aren't available and the only replacement is a new item, then by all means give replacement value. The victim WILL get replacement value unless the criminal puts on evidence that the goods were worth less.

And insurance has absolutely nothing to do with the decision. Any discussion of insurance is a red herring argument.
Anonymous said…
It's like when Brock Greenfield ate your limburger cheese without permission - all 10 pounds of it - and you asked for 10 pounds of jack.

No way buddy! You're getting the same stinky ass stuff you had to start with. The perp has been punished enough!
Anonymous said…
Seems logical to me, what the supreme court did.

Why not take depreciation into account on damaged goods. I think it's a matter of reason that people will get the full market value for the goods damaged, not full market replacement value.

Even if someone smashes up my TV that's five years old, I should get compensated for what the property was worth, not what it would cost me to buy a brand new one.

That's fair. What's wrong?
Anonymous said…
What's the market value of the vandalized birdhouse your grampa made and your mom painted with daisies and rainbows when she was 10 now that both are deceased?
Anonymous said…
Placing values on property is not an exact science. I trust the courts to consider all factors and arrive at a restitution amount that's fair.

If victims don't like what the court came up with, they can sue brock greenfield.
Anonymous said…
in the opinion, the Court talks about how a person sits on their sofa night after night and how a "used", "depreciated" sofa just will not cut it as far as compensating the victim of a crime which destroys their sofa. Sometimes, buying a new replacement at full cost is the only just way to fix the problem. The Court quotes the North Dakota supreme court on this exact topic, and notes that a judge can take these facts into account when awarding restitution.

The Court then reversed the trial court and sent it back for further analysis using these rules, rather than the ones the trial court used the first time.

The same argument could be made regarding a big screen t.v. watch your favorite sports team on it every Sunday, and a used t.v. is either not going to be locatable, or is not going to deliver the same particular ("peculiar", in legal terms) experience to the crime victim.

Basically, the Court is saying we have already have ways to fix this, but the trial court went off on its own to try to fix this using the wrong rules.

Trial court opinions are not published online, but PP, you should make sure to get a copy of this one and put it up here so we can all see how this one turns out after the trial court re-figures the proper restitution award.
lexrex said…
when a pervert broke into my house a couple years ago, he stole several items. among them were certain articles of clothing that one would not want to buy used, if you know what i mean.

i believe we were awarded replacement value for those, as well as for the deductible on my insurance. (not that i expect to ever actually be restituted.)

we were also awarded replacement value for the front door of our house, which was destroyed when the burglar busted it open.

i wouldn't have expected replacement values for my stereo or television, though, if they had been stolen. however, i would hope that the court would consider the difficulty in finding simarly-valued stereos and televisions. sometimes there is no replacing certain things, and replacement value awards are necessary.

pp's initial reaction is understandable. victims often get the short end of the stick. but it appears that the court in this case is being fair, though i'd like to read the opinion, first.

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