                Filed 1/15/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                    2019 ND 9


State of North Dakota,                                        Plaintiff and Appellee

       v.

Melinda Ann Strom,                                         Defendant and Appellant


                                   No. 20180167


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

       AFFIRMED.

       Opinion of the Court by Tufte, Justice.

       Julie A. Lawyer, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and
appellee.

       Bobbi B. Weiler, Bismarck, N.D., for defendant and appellant.
                                    State v. Strom
                                     No. 20180167


       Tufte, Justice.
[¶1]   Melinda Strom appeals from an amended criminal judgment and order for
restitution. Strom argues the district court abused its discretion in awarding restitution
because it did not consider her ability to pay as required by N.D.C.C. § 12.1-32-08(1).
We declare the statute unconstitutional in part and affirm the restitution order and
judgment.
                                            I
[¶2]   Strom pled guilty to misapplication of entrusted property in excess of $50,000
in violation of N.D.C.C. § 12.1-23-07(1). Strom was sentenced to five years, all
suspended for three years of supervised probation. A restitution hearing was held
on April 9, 2018. The district court concluded that article I, § 25(1)(n) of the
North Dakota Constitution, which was adopted in the 2016 election, overrides the
requirement under N.D.C.C. § 12.1-32-08(1) to take into account the ability of the
defendant to pay monetary reparations in setting the total amount of restitution. The
district court issued the restitution order requiring Strom to make restitution in the
amount of $690,910.67. Strom timely appealed.
                                            II
[¶3]   Both Strom and the State frame the issue on appeal as whether article I,
§ 25(1)(n) of the North Dakota Constitution overrides prior law requiring the district
court to consider a defendant’s ability to pay when determining restitution. Strom
argues the district court abused its discretion by ordering restitution without
considering her ability to pay because she contends the constitution and statute can
be reconciled. At oral argument the State argued the two provisions are in conflict
and thus the statute is unconstitutional.
               When reviewing a restitution order, we look to whether the
       district court acted “within the limits set by statute,” which is a standard
       similar to our abuse of discretion standard. “A district court abuses its

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       discretion if it acts in an arbitrary, unreasonable, or unconscionable
       manner, if its decision is not the product of a rational mental process
       leading to a reasoned determination, or if it misinterprets or misapplies
       the law.”
State v. Blue, 2018 ND 171, ¶ 13, 915 N.W.2d 122 (quoting State v. Carson, 2017 ND
196, ¶ 5, 900 N.W.2d 41). Questions of law are reviewed “de novo in determining
whether or not the district court abused its discretion through misapplication or
misinterpretation of the law.” State v. Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77.
Whether the district court properly determined that article I, § 25(1)(n) abrogates
consideration of a defendant’s ability to pay as limiting the total amount of restitution
awarded under N.D.C.C. § 12.1-32-08(1) is a question of law. Blue, at ¶ 40 (Jensen,
J., concurring and dissenting).
[¶4]   Section 12.1-32-08(1), N.D.C.C., lists three factors the court must consider
when ordering restitution. At issue here, “the court shall take into account: . . .
(b) [t]he ability of the defendant to restore the fruits of the criminal action or to pay
monetary reparations.” N.D.C.C. § 12.1-32-08(1) (emphasis added). The statute
continues, “[t]he court shall fix the amount of restitution or reparation, which may not
exceed an amount the defendant can or will be able to pay, and shall fix the manner
of performance of any condition or conditions of probation established pursuant to
this subsection.” Id. (emphasis added).
[¶5]   In addition to the statutory requirements, we must consider how article I,
§ 25(1)(n) of the North Dakota Constitution applies here. A crime victim has the
“right to full and timely restitution in every case and from each offender for all losses
suffered by the victim as a result of the criminal or delinquent conduct.” N.D. Const.
art. I, § 25(1)(n). We have not previously decided whether article I, § 25(1)(n)
abrogates the required consideration of the defendant’s ability to pay restitution under
factor (b) of N.D.C.C. § 12.1-32-08(1). Blue, 2018 ND 171, ¶ 26, 915 N.W.2d 122;
Kostelecky, 2018 ND 12, ¶ 17, 906 N.W.2d 77.
[¶6]   When interpreting a constitutional provision, “we apply general principles of
statutory construction. In construing statutory and constitutional provisions, we will

                                           2
attempt to give meaning to every word, phrase, and sentence, and, if necessary, we
will attempt to reconcile and harmonize potentially conflicting provisions.”
Kostelecky, 2018 ND 12, ¶ 8, 906 N.W.2d 77 (quoting State Bd. of Univ. & Sch.
Lands v. City of Sherwood, 489 N.W.2d 584, 587 (N.D. 1992)). Absent an applicable
definition, words enacted in statutes carry the plain, ordinary, and commonly
understood meaning as of the time of enactment. Zajac v. Traill Cty. Water Res. Dist.,
2016 ND 134, ¶ 6, 881 N.W.2d 666.
[¶7]   Article I, § 25(1)(n) clearly states the compensation amount to which a victim
of a crime is constitutionally entitled. Blue, 2018 ND 171, ¶ 43, 915 N.W.2d 122
(Jensen, J., concurring and dissenting). Section 25(1)(n) provides a victim the “right
to full and timely restitution in every case and from each offender for all losses
suffered by the victim as a result of the criminal or delinquent conduct.” N.D. Const.
art. I, § 25(1)(n) (emphasis added). The words enacted to describe the restitution
amount, “full” and “all losses,” leave no room for implication that the commonly
understood meaning would permit any reduction of the restitution amount in
consideration of the defendant’s ability to pay. Blue, at ¶ 43. The plain meaning of
“restitution” is an amount calculated to make the victim whole. State v. Tupa, 2005
ND 25, ¶ 8, 691 N.W.2d 579. The addition of the modifier “full . . . restitution”
underscores the point that the amount must make the victim whole by restoring the
victim to his position prior to the offense. Kostelecky, 2018 ND 12, ¶ 13, 906 N.W.2d
77. To award less than the amount required to make the victim whole would not be
“full” restitution. The further addition of “all losses” suggests a belt-and-suspenders
approach in drafting this provision: no reasonable member of the public could
overlook the double emphasis that restitution is not to be reduced. If the word
“restitution” within the constitutional amendment were construed to be the same as
the amount determined under N.D.C.C. § 12.1-32-08(1), thus “allowing for the
amount of constitutionally mandated restitution to be reduced by the defendant’s
ability to pay,” it would render the words “full” and “all losses” meaningless. Blue,
at ¶ 43.

                                          3
[¶8]   Where the constitutional provision was adopted after a conflicting statute, we
cannot logically declare it void “as if it never were enacted,” Hoff v. Berg, 1999 ND
115, ¶ 19, 595 N.W.2d 285. The statute at issue here was constitutional when enacted;
thus the facial challenge here does not turn on whether the Legislative Assembly
exceeded its constitutional authority in enacting a law not permitted by the
constitution. The test where a statute predates a conflicting constitutional provision
is whether the statute could have been passed after the new constitutional provision
took effect. If not, repeal of the statute is implicit in adoption of the new constitutional
provision. See State ex rel. Stokes v. Probate Court of Cuyahoga County, 17 Ohio
App. 2d 247 (1969). Here, we resolve the irreconcilable conflict between the
constitutional amendment and the statute by interpreting N.D. Const. art. I, § 25(1)(n)
as implicitly repealing the conflicting portion of N.D.C.C. § 12.1-32-08(1).
[¶9]   To clearly state the scope of this decision, it is necessary to articulate what we
do not decide here. In this matter, we examine only an award of restitution and not a
contempt hearing or probation revocation for non-payment, and thus we limit
consideration of ability to pay only in the context of setting the total amount of
restitution. See Blue, 2018 ND 171, ¶ 44, 915 N.W.2d 122 (Jensen, J., concurring and
dissenting). We do not completely preclude consideration of ability to pay. There may
be times when such consideration may be appropriate, i.e., when determining the time
or manner of payment or whether a defendant’s failure to pay is willful. Id. Not all of
N.D.C.C. § 12.1-32-08(1) contradicts article I, § 25(1)(n). We declare inoperative and
unenforceable only the parts of N.D.C.C. § 12.1-32-08(1) emphasized below:
       In determining whether to order restitution, the court shall take into
       account: . . . (b) The ability of the defendant to restore the fruits of the
       criminal action or to pay monetary reparations, or to otherwise take
       action to restore the victim’s property. . . . The court shall fix the
       amount of restitution or reparation, which may not exceed an amount
       the defendant can or will be able to pay . . . .
In short, a district court may not consider a defendant’s ability to pay in determining
the amount of restitution awarded to a victim.
                                            III

                                             4
[¶10] We conclude the district court did not abuse its discretion in fixing the amount
of restitution without regard to the defendant’s ability to pay. We affirm the amended
criminal judgment and the order for restitution in the amount of $690,910.67.
[¶11] Jerod E. Tufte
      Jon J. Jensen
      Daniel J. Crothers

       I concur in the result.
       Gerald W. VandeWalle, C.J.

       McEvers, Justice, concurring and dissenting.
[¶12] I agree with the majority that the district court did not abuse its discretion by
limiting its consideration of the defendant’s ability to pay in determining the full
amount of restitution awarded to a victim. Majority, at ¶ 10. In doing so, we
recognize the need to harmonize the statutory factors with the constitutional provision
on restitution. However, I disagree there is a need to declare any portion of the statute
unconstitutional because it was not adequately raised and is unnecessary based on the
facts of this case. “It is a cardinal rule of decision making to avoid constitutional
confrontations where there are appropriate alternative grounds to resolve the case
before us.” In Interest of Goodwin, 366 N.W.2d 809, 814 (N.D. 1985) (relying on
Mills v. Rogers, 102 S.Ct. 2442, 2451 (1982) (other citations omitted). See also State
ex rel. Stutsman v. Light, 68 N.D. 513, 521, 281 N.W. 777, 780 (1938) (stating a
constitutional question will only be decided when it is properly before the court and
must be decided in order to resolve the controversy).
              It is well-settled that issues not raised in the district court may
       not be raised for the first time on appeal. State v. Kieper, 2008 ND 65,
       ¶ 16, 747 N.W.2d 497. We have stated this rule is “particularly
       applicable where, as here, an issue or argument is not raised in the
       appellate brief but is raised for the first time at oral argument.”
       Paulson v. Paulson, 2011 ND 159, ¶ 9, 801 N.W.2d 746.
State v. Mackey, 2011 ND 203, ¶ 17, 805 N.W.2d 98. Neither Strom nor the State
argued this issue in the district court nor did they argue in their appellate briefs that



                                           5
N.D.C.C. § 12.1-32-08(1) is unconstitutional. Because the State raised the issue for
the first time at oral argument, the question is not properly before us.
[¶13] In this case, the record reflects that the district court set restitution at the full
amount. There was no mention at the restitution hearing that N.D.C.C. § 12.1-32-
08(1) was unconstitutional. Rather, the defendant argues the court erred by failing to
consider her ability to pay when she was ordered to pay restitution as a condition of
probation. While the court did not make a specific finding on ability to pay, the factor
was clearly considered. The court concluded the victim was entitled to restitution
under N.D. Const. art. I, § 25(1)(n), “regardless of the general consideration of ability
to pay on the part [of] Defendant Strom.” In addition, neither the judgment nor the
amended criminal judgment make payment of restitution a condition of probation.
[¶14] Because the district court did consider the defendant’s ability to pay, I agree
the order should be affirmed. The district court concluded the constitutional mandate
of N.D. Const. art. I, § 25(1)(n) overrides the consideration of actual “ability to pay”
in this instance. To “override” means to “dominate or prevail over.” Webster’s Third
New International Dictionary 1609 (1971). Whether intentional or not, the district
court harmonized the constitutional and statutory provisions.
[¶15] This Court has stated “the constitutional provision would prevail over the
statute, but only if the two cannot be reconciled.” State v. Blue, 2018 ND 171, ¶ 24,
915 N.W.2d 122. A victim is entitled to full and timely restitution under N.D. Const.
art. I, § 25(1)(n). In State v. Kostelecky, this Court stated the meaning of full
restitution has not changed. 2018 ND 12, ¶ 12, 906 N.W.2d 77. A majority of this
Court further stated in Blue:
       Other than requiring restitution be timely made, the constitutional
       provision has no express or implied restrictions on how restitution is to
       be made. Considering whether a defendant has the ability to pay in no
       way violates any express or implied restriction under N.D. Const. art.
       I, § 25(1)(n). It is unnecessary to consider the constitutional provision
       if a defendant has the ability to pay. [State v.] Bruce, 2018 ND 45,
       ¶ 17, 907 N.W.2d 773. In Bruce, we affirmed the district court
       judgment requiring the defendant to pay $7,157.20 in restitution when
       the defendant had no assets and was facing imprisonment followed by

                                            6
       supervised probation. Id. The district court in Bruce looked at the
       defendant’s ability to pay when he is released and on supervised
       probation. Id. While it is unlikely Blue will be able to show an
       inability to pay based on the amount of restitution here, he should have
       been given the opportunity to address the court. Considering a
       defendant’s ability to pay has implications as to whether a defendant is
       able to comply with his conditions of probation. Here, the court
       ordered Blue to pay restitution as a condition of probation without
       considering whether he had the ability to pay.
Blue, at ¶ 25. This case is distinguishable from Blue, in that the district court here
considered Strom’s ability to pay, and did not include restitution as a condition of
probation.
[¶16] It is not considering the defendant’s ability to pay that violates the constitution;
rather, it is in relying on the defendant’s inability to pay in setting the amount of full
restitution. Considering a defendant’s ability to pay and requiring payment of that
amount as a condition of probation may enhance the timely payment of restitution, by
setting some type of payment schedule.
[¶17] The legislature has included payment of restitution among the various
conditions the district court may impose when sentencing a defendant to probation.
As provided under N.D.C.C. § 12.1-32-07(4):
       When imposing a sentence to probation, probation in conjunction with
       imprisonment, or probation in conjunction with suspended execution
       or deferred imposition of sentence, the court may impose such
       conditions as it deems appropriate and may include any one or more of
       the following:
               ....
       e.      Make restitution or reparation to the victim of the defendant’s
               conduct for the damage or injury which was sustained or
               perform other reasonable assigned work. When restitution,
               reparation, or assigned work is a condition of probation, the
               court shall proceed as provided in subsection 1 or 2, as
               applicable, of section 12.1-32-08.
(Emphasis added.)
[¶18] The legislature specifically requires the district court to consider N.D.C.C.
§ 12.1-32-08(1) or (2), when ordering restitution as a condition of probation, which


                                            7
includes a defendant’s ability “to pay monetary reparations” under (1)(b). I do not
see why the legislature could not require the district court to consider the defendant’s
ability to pay under N.D.C.C. § 12.1-32-08(1)(b), when ordering restitution as a
condition of probation following the effective date of N.D. Const. art. I, § 25(1)(n),
so long as the ability to pay is not used to reduce the total amount of restitution.
[¶19] Lisa Fair McEvers




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