Daily Decisions: Criminal Act Is Not a “Criminal Act” Without a Specific Conviction

Silveria Lopez-Vasquez v. Department of Labor and Industries (Division 1, May 14, 2012), may be rightly decided, but it works a terrible injustice against the plaintiff, Silveria Lopez-Vasquez, who was injured in a car accident that also killed her four-year-old son.

Under Washington law, a person is entitled to statutory victim’s compensation from a “vehicular assault” only if there is a related conviction for that assault. Here, the drive who struck Lopez-Vasquez’s car was charged with both (a) vehicular homicide (for the death of Lopez-Vasquez’s son) and (b) vehicular assault (for the injuries to Lopez-Vasquez). But as part of a plea deal, the assault charge was dropped and the driver pleaded guilty to the homicide charge. At sentencing, the trial judge declared that Lopez-Vasquez “should be eligible for crime victims’ compensation” as a victim of the crime, despite the prosecutor’s decision to drop the charges related to her injuries.

However, despite the judge’s wishes, the state statutory scheme makes no provision for recovery in Lopez-Vasquez’s situation. Recovery must be predicated on a “criminal act,” which is defined under RCW 7.68.020(5)(i)(A)-(C) to require “a conviction of vehicular assault” (or other circumstances not here relevant). Accordingly, the Department of Labor and Industries denied Lopez-Vasquez’s application for victim’s compensation. The Board upheld the denial, and the Superior Court affirmed the Board’s decision.

Lopez-Vasquez argued that the Department was collaterally estopped from denying that she is a victim, because of the criminal trial court’s judgment and related statements. But the Court of Appeals concluded that collateral estoppel does not apply because (a) the issues are not identical and (b) the parties are not identical, since the Department was not a party to the criminal proceedings.

Lopez-Vasquezthen attempted to shoehorn her situation into some of the Act’s limited exceptions to the “conviction” requirement. But none of the exceptions applied. After observing that the statute provides specific exceptions to fit specific situations, the Court declined to invent or extend new exceptions to apply to Lopez-Vasquez.

The Court of Appeals provided no commentary or advice for how to avoid this situation in the future. And it’s unclear what Lopez-Vasquez should have done if she wanted to ensure her right to compensation funds. Perhaps, in the future and with knowledge of this ruling, prosecutors will no drop charges from plea deals. That may not, however, be the most advisable solution, since generally I’d like to give prosecutors and defense counsel wide latitude to work out plea deals that work for the both parties — without needing to worry about the interests of third-party victims.

Of course, a statutory solution is always possible. Maybe the legislature is listening.

As far as litigation-based solutions, perhaps in these situations, where a plea deal could affect a victim’s eligibility for compensation, the victim could request that the Department be allowed to intervene or otherwise notified of the proceedings and given a chance to object? There should be some way to bind the Department (i.e., the State) to the decision of two other state actors (the Judge and the prosecutor’s office) that the victim is entitled to compensation.



One thought on “Daily Decisions: Criminal Act Is Not a “Criminal Act” Without a Specific Conviction

  1. Pingback: Monday Morning [Afternoon? Evening?] Mash-up: May 21, 2012 | Ziff Blog

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