In the Matter of KEG

In the Matter of KEG, 2013 MT 82 (April 2, 2013) (6-0) (Baker, J., for the majority; McKinnon, J., concurring in the judgment)

Issue: Whether the Youth Court committed plain error in concluding KEG was jointly and severally liable for the full amount of restitution without considering KEG’s ability to pay.

Short Answer: Yes.


Facts: Over an 11-day period in December 2011, vandals in Billings shot the windows out of homes and vehicles with air guns, damaged vehicles with baseball bats, and set two cars on fire. An investigation by school officials indicated that KEG, a 15-year-old male, was one of the vandals. KEG and his mother met with a Billings police officer in January 2012. KEG waived his rights and provided a statement in which he admitted to participating in the vandalism on two days, but no other days. He admitted he had hit two windows with the gun and four to five windows with a bat on the first night, and five windows with a BB gun and three with a bat on the second night. The county attorney filed a petition alleging KEG was a delinquent youth for having committed criminal mischief. Other youths were similarly charged. KEG pled guilty to the specific acts of vandalism he had committed.

Procedural Posture & Holding: The state attempted to hold KEG jointly and severally liable for all damage caused during the 11-day period, which totaled $78,702.09. KEG countered that he should be held liable only for the damage caused on the two nights to which he had confessed and pled guilty, for a total of $16,020.63. Although the court did not inquire into KEG’s assets or prospects for future earning, it acknowledged that “it will be nearly impossible” for KEG to pay the restitution, but expressed its hope that KEG would make some payments. The Youth Court held that KEG admitted to participating in a common scheme, and was therefore liable for the entire amount of damages. It adjudicated KEG a delinquent youth and committed him to the Dept. of Corrections until his 18th birthday. The court retained jurisdiction for restitution purposes until KEG turns 21 or the restitution is paid in full. KEG appeals the restitution order, and the Supreme Court reverses.

Reasoning: The Montana Youth Court Act states that restitution is to be ordered “in appropriate cases.” § 41-5-102(2)(c), MCA. In making that determination, the court may consider a number of factors, including the youth’s age, ability to pay, ability to parents or guardians to pay, amount of damage, and other remedies available to the victim. KEG admitted to committing criminal mischief pursuant to a common scheme that resulted in 200 reports of vandalism. The Youth Court was therefore statutorily authorized to impose restitution for all damage caused by the common scheme. However, both the Youth Court Act and the applicable criminal statute require examination of the offender’s ability to pay prior to imposing restitution. KEG did not object to the restitution order on this ground below. The Youth Court’s failure to consider KEG’s ability to pay implicates the fundamental fairness of the proceedings against KEG, and therefore constitutes plain error. The Youth Court is ordered to hold a new restitution hearing.

Justice McKinnon’s Concurrence: Justice McKinnon concurs in the decision to reverse and remand, but dissents from the Court’s analysis. First, the Court resolved this case on a legal theory not raised by KEG, here or below. Second, the Court improperly applied adult sentencing statutes to a youth case. Finally, KEG cannot be required to pay restitution for damages he did not cause or plead guilty to causing, and which the state never proved KEG caused. Justice McKinnon would reverse and remand for entry of a restitution order of $16,020.63.