Close Up Wide View From Inside A Office As Someone Smashes A Sledgehammer Through A Glass Door On An Overcast Day

Feb. 29, 2024 – A provision in a constitutional amendment that entitles crime victims to “full restitution” does not entitle victims to restitution in the full amount of their damages, the Wisconsin Court of Appeals (District IV) has ruled in State v. M.L.J.N.L., 2021 AP 1437 (Feb. 8, 2024).

Three Burglars

M and two other minors broke into several buildings in Dane County and caused major damage. At the time, M was 14 years old.

The State filed a delinquency petition in Dane County Circuit Court against M and the other children, alleging 11 counts as party to a crime.

M pled no contest to one count of burglary. The circuit court dismissed the other charges and read them in for purposes of disposition.

Restitution for Full Damages

At the disposition hearing, the State told the circuit court that the parties had stipulated to a restitution amount of $27,788 – the full amount of the damage claimed by the burglary victims.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

The State requested that the circuit court schedule a hearing to determine M’s ability to pay under Wis. Stat. section 938.34(5)(a).

That statute requires a court that orders a juvenile to pay “reasonable restitution” for property damage to include a finding that the juvenile can pay by him or herself.

In March 2020, the circuit court adjudicated M a delinquent and placed him under the jurisdiction of Rawhide Youth Services until he turned 18. In the disposition order, the circuit court listed the amount of restitution as “TBD.”

Marsy’s Law

In April 2020, Wisconsin voters adopted Marsy’s Law, which enshrined several victims’ rights provisions in the state constitution.

One of those provisions specifies that crime victims are entitled to “full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.”

The State argued that Marsy’s Law in effect repealed the “ability-to-pay” limit in section 938.34(5)(a).

M argued that the “full restitution” wording in Marsy’s Law meant that a victim was entitled to recover the full amount of restitution ordered by a court in accordance with section 938.34(5)(a), rather than the full amount of damages the victim had suffered.

The circuit court ruled that Marsy’s Law had rendered unconstitutional the “ability-to-pay” limit in section 938.34(5)(a).

M appealed the restitution order.

State Concedes Issue

On appeal, the State, now represented by attorneys from the Wisconsin Department of Justice, conceded that section 938.34(5)(a) did not conflict with Marsy’s law.

Judge Rachael Graham began her opinion for a three-judge panel by writing that despite the concession, the Court of Appeals decided to rule on the issue to “provide binding legal authority on this important yet unresolved issue.”

Graham explained that the term “restitution” as used in section 938.34(5)(a) and in caselaw means the amount a court orders a child to pay as part of a delinquency adjudication.

“Importantly, as the term is used in section 938.34(5)(a), restitution may be in an amount that is less than the total damages that a victim incurred as a result of the child’s unlawful conduct,” Judge Graham wrote.


Graham noted that the relevant wording in Marsy’s Law specifies that victims are entitled to “full restitution from any person who has been ordered to pay restitution to the victim.”

Judge Graham reasoned that “full restitution” appeared ambiguous when viewed in isolation; she also pointed out that Marsy’s Law did not define “full.”

“What matters more than the meaning of ‘full,’ however, is the concept that it modifies,” Graham wrote. “Marsy’s Law provides a right to ‘full restitution,’ but it leaves the term undefined.”

Judge Graham noted one dictionary defined “restitution” as “an act of restoring or a condition of being restored,” which could mean that “full restitution” as used in Marsy’s Law meant that the crime victims were entitled to restitution in the full amount of the damages they’d suffered.

Term of Art

However, Graham reasoned that dictionary definitions did not end the inquiry, because “restitution” is a legal term of art.

“Under [the] statutes, ‘restitution’ is not the total dollar amount of a victim’s damages but is instead the amount that a court orders a juvenile or criminal defendant to pay as restitution in compliance with those statutory provisions and limitations,” Judge Graham wrote.

Graham explained the Wisconsin Supreme Court had recently held that when the legislature employs a term of art with a widely accepted meaning, a court assumes it used the term with that meaning.

“Thus, the restitution provision is tethered to court-ordered restitution, and court-ordered restitution is, in turn, governed by the statutes we have discussed above,” Judge Graham wrote.

“This further supports interpreting ‘full restitution’ to mean the full amount of restitution that a court orders in compliance with Wisconsin statutes.”

Graham reasoned that if the legislature had wanted victims to be entitled to restitution in the full amount of their damages, it could have done so by using in Marsy’s Law a phrase like “total damages” or “full compensation for all losses.”

“If the legislature meant to eliminate some or perhaps all of the statutory limitations on restitution, it is unlikely that it would have attempted to accomplish that result in so circumspect a manner by providing right to ‘full restitution from any person who has been ordered by a court to pay restitution to the victim,’” Judge Graham wrote.

The Court of Appeals reversed the restitution order and directed the circuit to re-calculate the restitution M owed in accordance with section 938.34(5)(a).