The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court orders restitution it orders the defendant to give up his gains to the claimant. When a court orders compensation it orders the defendant to compensate the claimant for his or her loss.

This type of damages restores the benefit conferred to the non-breaching party (the plaintiff). Simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it.

The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of causative events is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative event can also trigger an obligation to make restitution.

Restitution for wrongs

Imagine that A commits a wrong against B and B sues in respect of that wrong. A will certainly be liable to pay compensation to B. If B seeks compensation then the court award will be measured by reference to the loss that B has suffered as a result of A’s wrongful act. However, in certain circumstances it will be open to B to seek restitution rather than compensation. It will be in his interest to do so if the profit that A made by his wrongful act is greater than the loss suffered by B.

Whether or not a claimant can seek restitution for a wrong depends to a large extent on the particular wrong in question. For example, in English law, restitution for breach of fiduciary duty is widely available but restitution for breach of contract is fairly exceptional. The wrong could be of any one of the following types:

#A statutory tort #A common law tort #An equitable wrong #A breach of contract #Criminal offences

Notice that (1)-(5) are all causative events (see above). The law responds to each of them by imposing an obligation to pay compensatory damages. Restitution for wrongs is the subject which deals with the issue of when exactly the law also responds by imposing an obligation to make restitution.

Example. In Attorney General v Blake [2001] 1 AC 268, an English court found itself faced with the following claim. The defendant had made a profit somewhere in the region of £60,000 as a direct result of breaching his contract with the claimant. The claimant was undoubtedly entitled to claim compensatory damages but had suffered little or no identifiable loss. It therefore decided to seek restitution for the wrong of breach of contract. The claimant won the case and the defendant was ordered to pay over his profits to the claimant. However, the court was careful to point out that the normal legal response to a breach of contract is to award compensation. An order to make restitution was said to be available only in exceptional circumstances.

Restitution to reverse unjust enrichment

Cases of intentional torts or breaches of fiduciary duty often allow for claims of unjust enrichment, as well as cases of statutory torts and breaches of contract. A plaintiff can even have a claim in unjust enrichment when there is no other substantive claim. The Uniform Commercial Code ("UCC") entitles a buyer who defaults restitution of the buyer's deposit to the extent it exceeds reasonable liquidated damages or actual damages. If the contract does not have a liquidated damages clause, the UCC provides a statutory sum: 20% of the price or $500, whichever is less, and the buyer who defaulted is entitled to restitution of any excess.

See also

Quasi-contract

Restitution (theology)

Equity (law)

Blood money

Notes

References

Charles Mitchell and Paul Mitchell, Landmark Cases in the Law of Restitution (Hart, 2006), essays on legal history.

Peter Birks, Unjust Enrichment (2nd Ed, Clarendon, Oxford, 2005)

A Burrows, J Edelman and E McKendrick, Cases and Materials on the Law of Restitution (2nd Ed, OUP, Oxford, 2007)

Graham Virgo, The Principles of the Law of Restitution (2nd Ed, OUP, New York, 2006)

Category:Law Category:Restitution

Name	Kwame Malik Kilpatrick
Order	68th
Office	Mayor of Detroit
Term start	January 1, 2002
Term end	September 18, 2008
Predecessor	Dennis Archer
Successor	Kenneth Cockrel Jr.
Birth date	June 08, 1970
Birth place	Detroit, Michigan, United States
Party	Democratic
Spouse	Carlita Kilpatrick
Profession	Former Politician
Residence	Federal Correctional Institution, Milan
Alma mater	Florida A&M; and Michigan State University College of Law
Religion	Church of God in Christ
Conviction status	Incarcerated
Occupation	Former politician
Spouse	Carlita Kilpatrick
Children	3 children

Alleged incidents of mayoral misconduct

Manoogian Mansion party

Kilpatrick's controversies started from a wild party alleged to have occurred in the fall of 2002, involving strippers at the official residence of the mayor—the city-owned Manoogian Mansion. It is alleged by former members of the mayor's Executive Protection Unit that the mayor's wife, Carlita Kilpatrick, came home unexpectedly and upon discovering Kwame with the strippers began to attack one of the women. Nelthrope and Gary A. Brown, head of the Detroit Police Department's internal affairs unit allege that they were fired by the administration in retaliation for investigating the mayor and other superiors. Nelthrope and Brown filed a whistleblower lawsuit and were awarded an $8.4 million-dollar settlement.

Additionally, two other officers of the Detroit Police Department, Walt Harris and Alvin Bowman, correctly claimed they were retaliated against for their involvement in investigations that would highlight the mayor's misconduct. Harris was a former member of the EPU, who was identified by the administration as cooperating with the state's investigation of the mayor and subsequently suffered a smear campaign in the media by the Kilpatrick administration.

The murder of Tamara Greene

Tamara Greene was a 27-year-old exotic dancer who went by the name "Strawberry", and who allegedly performed at the 2002 Manoogian Mansion party, where she was allegedly assaulted by the mayor's wife, Carlita.

In April 2003, while sitting in her car with her boyfriend, Greene was shot multiple times with a .40 caliber Glock pistol which, at the time, was the same model and caliber firearm issued by the Detroit Police Department. Although an official statement by Detroit Police Department claims that Ms. Greene was shot three times, sources from the department's Homicide Division claimed that she was shot 18 times. Her boyfriend was wounded when the white Chevrolet Suburban driven by the shooter or shooters made a second pass. This fact led Bowman to conclude that Greene was the intended target and not her 32-year-old boyfriend. She was murdered on April 30, 2003, at around 3:40 AM, near the intersection of Roselawn and West Outer Drive. a theory that Bowman would investigate. He alleged his investigation was the reason that he was taken off of the case and transferred out of homicide.

Greene's family filed a federal lawsuit against the city of Detroit for $150 million based on their belief her murder was a deliberate attack to keep her from talking to officers who were investigating the rumored party at the mayoral Manoogian Mansion. A judge ruled that Norman Yatooma, the attorney representing Greene's 14-year-old son, could have access to text messages of Kilpatrick, police chief Ella Bully-Cummings and dozens of other city employees to ascertain if city officials blocked the investigation into Greene's murder.

The lawyers for the city paid a retainer of $24,950 to the lawyers it hired to represent the city. City policy mandates that contracts $25,000 or more be approved by the city council. This was at least the second time the Kilpatrick administration has avoided council approval by entering into contracts just below the $25,000 threshold: the Lincoln Navigator SUV leased for the Kilpatrick family in 2005 with city funds cost $24,995.)

On March 1, 2008, a ten page sworn affidavit by former Detroit police lieutenant Alvin Bowman was filed by Yatooma in the U.S District Court for the Eastern District of Michigan. In that affidavit, Bowman states that "I suspected that the shooter was a law enforcement officer, and more specifically, a Detroit Police Department officer." In the affidavit, Bowman says that Greene was employed with an associate of Kilpatrick, but did not name the associate. Bowman also stated that Greene's telephone records linked her to a high-ranking city employee not long before her April 2003 death. Mayer Morganroth, the lawyer representing the city, said, "The Bowman affidavit is a little less than idiotic and more than absurd."

In another sworn affidavit, Joyce Carolyn Rogers, a former employee for the Detroit Police Department, stated that she read a police report that came across her desk in the fall 2002 which involved the mayor's wife, Carlita Kilpatrick, assaulting Greene during the alleged Manoogian Mansion party. Rogers stated in the affidavit that Carlita had witnessed Greene touching the mayor "in a manner that upset the mayor's wife."

Norman Yatooma, attorney for the Greene family, said that this new sworn affidavit shows that the Manoogian party was not "urban legend."

Three Detroit fire department EMS officers signed affidavits concerning Ms. Green. Lt. Michael Kearns said he spoke to Green around the time of the Manoogian party. Retired Lt. Walter Godzwon, said he saw Kwame Kilpatrick and his bodyguards at Detroit Receiving, where an injured woman was taken. Paramedic Cenobio Chapa said in an affidavit that he say he saw an injured woman brought to Detroit Receiving Hospital by three plainclothes Detroit Police officers in the autumn of 2002. He said he heard the woman say she had been physically attacked by Carlita Kilpatrick, the wife of then-Detroit Mayor Kwame Kilpatrick. Chapa said in his affidavit that he ran into a medical technician that night named Doug Bayer and told him about what he had seen. Bayer previously had told State Police of such an encounter. In his testimony, Kilpatrick expressed anger about claims of an affair between him and Beatty and under oath said:

The Detroit Law Department initially denied the existence of a "secret deal", but later fought unsuccessfully all the way to the Michigan Supreme Court to keep the documents sealed on the grounds that they are private communications. The council has requested Kilpatrick resign as mayor and that Jennifer Granholm use her gubernatorial authority to remove Kilpatrick from office due to his conduct in the trial.

Kilpatrick said he has paid back the $8.4 million through "hard work for the city" and dismissed any aspiration of removing him from office as "political rhetoric." However, a city directive re-authorized by Kilpatrick during his first term as mayor indicates that all electronic communication sent on city equipment should be "used in an honest, ethical, and legal manner" and cautions, "is not considered to be personal or private."

Kilpatrick and Beatty, both married at the time, did discuss city business; however, many of the series of messages describe not a professional relationship but an extramarital sexual relationship between the two, often in graphic detail. The text messages further describe their use of city funds to arrange romantic getaways, their fears of being caught by the mayor's police protection unit, and evidence the pair conspired to fire Detroit Police Deputy Chief Gary Brown.

On March 18, 2008, the Detroit City Council passed a non-binding resolution asking for Kilpatrick to resign as mayor. The vote was 7–1 with Monica Conyers being the only member to vote no. Martha Reeves was absent from the vote. The resolution cited 33 reasons for Kilpatrick to step down as mayor; reasons ranging from the secret settlement deals, to mandatory audits not being submitted to the state, to charges that Kilpatrick “repeatedly obfuscates the truth.” It was in effect a vote of no confidence in Kilpatrick and his administration. Kilpatrick had dismissed the vote as irrelevant and he declared that he would not resign as mayor. While this was a non-binding resolution, the council did ask its independent attorney, Bill Goodman, to “explore the proceedings by which the mayor may be removed from office” if Kilpatrick stands by his promise not to resign. While stopped, Beatty called Police Chief Bully-Cummings to have the officers called off, which the officers allege they were ordered to do. When reports of the incident started to surface in the media, Kilpatrick, Beatty and Bully-Cummings all claimed that the traffic stop was some type of "set-up" to harass Beatty.

On February 19, 2008, the Detroit City Council voted unanimously to settle the lawsuit for $25,000. The attorney for the officers accepted the settlement and said of the officers, “They don’t want to be embroiled in this whole scandal."

Synagro sludge contract

According to the Detroit News (24 June 2010), Kwame Kilpatrick, his father Bernard and the Kilpatrick Civic Fund may have been important figures in the sludge hauling contract that saw city council president Monica Conyers (wife of Rep. John Conyers) and her chief of staff Sam Riddle convicted for conspiracy and bribery. "Kilpatrick and his father also figured, but have not been charged, in evidence surrounding a bribery-tainted, $1.2 billion sewage sludge contract the Detroit City Council awarded to Synagro Technologies Inc. in 2007. According to court documents and people familiar with the case, former Synagro official James Rosendall made large contributions to the Kilpatrick Civic Fund and gave Kilpatrick free flights to Las Vegas and Mackinac Island. Rosendall also told investigators he made cash payments to Bernard N. Kilpatrick, who told Rosendall he got him access to City Hall, records show."

Denial of courtesy protection

In 2002, the Washington D.C. police announced that they would only offer professional courtesy protection to Kilpatrick while he was conducting official business in the nation's capital. Washington police no longer provided after-hours police protection to Kilpatrick because of his inappropriate partying during past visits. Sergeant Tyrone Dodson of Washington explained by saying "we arrived at this decision because we felt that the late evening partying on the part of Mayor Kilpatrick would leave our officers stretched too thin and might result in an incident at one of the clubs." The Kilpatrick administration alleged that the statements and actions of the Washington police were part in a political conspiracy to "ruin" the mayor.

The city has laid off more than 4,000 city workers and more than 1,000 police officers since Kilpatrick's first term. None of Kilpatrick's friends or family have been laid off.

Abuse of power allegations

It was revealed on July 15, 2008, by WXYZ reporter Steve Wilson, that in 2005 Kwame Kilpatrick, Christine Beatty, and the chief of police Ella Bully-Cummings allegedly used their positions to help an influential Baptist minister arrested for soliciting a prostitute to have the case dismissed. The arresting officer, Antoinette Bostic was told by her supervisors that Mangedwa Nyathi was a minister (Assistant Pastor at Hartford Memorial Baptist Church on Detroit's west side) and that the mayor and the chief were calling them to get Bostic not to show up to court; thereby the judge would be forced to dismiss the case against Nyathi. Bostic ignored her supervisors and appeared in court. The defense lawyer, Charles Hammons, had the case postponed a couple of times and stated in court that “The mayor told me yesterday that this case is not gonna go forward”. Hammons admitted to Wilson that this was the fact and that this was how many cases for people who know the mayor in Detroit are handled. Bully-Cummings angrily denied that she had ever asked her officers to perform such acts of impropriety. Kilpatrick stated that Wilson of WXYZ "was just making up stories again". resigned shortly after this incident. following a guilty plea to two felonies for obstruction of justice arising from a complex settlement scheme in a civil case where he lied about an extra-marital affair under oath, then caused the case to be settled at a premium in exchange for an agreement by the parties not to disclose his affair. He then misrepresented the settlement to the citizens of Detroit and City Council. As a result of his guilty plea, Kilpatrick will pay restitution to the city of Detroit in the amount of one million dollars, lose his pension, serve four months in the Wayne County jail, serve five years probation, and surrender his law license; and is prohibited from running for public office for five years.

In the separate assault case, he pled no contest to one felony count of assaulting and obstructing a police officer in exchange for a second assault charge being dropped. This deal also required his resignation and 120 days in jail, to be served concurrently with his jail time for the perjury counts. As of December 2010, Kilpatrick was incarcerated in the Milan Federal Prison in Milan, Michigan as Federal Bureau of Prisons inmate #44678-039. The original 38-charge indictment listed allegations of 13 fraudulent schemes in awarding contracts in the city's Department of Water and Sewerage, with pocketed kickbacks of nearly $1 million. He was arraigned on January 10, 2011, on charges in the 89-page indictment. Federal prosecuting attorneys proposed a trial date in January 2012, but defense attorneys asked for a trial date in the summer of 2012.

Similar scandals

Larry Langford

Marc Dann

Ilkka Kanerva

Eliot Spitzer

Mark Sanford

Don Williamson

Marion Barry

See also

Mike Cox, Michigan Attorney General in charge of investigating some of the allegations against Kilpatrick

References

External links

Kilpatrick's Offender Tracking Proflie

New York Times article profiling Kilpatrick

CityMayors.com profile

KwameKilpatrick.com website

Finland's foreign minister ousted over text message scandal

Official Web Site of the Recall Effort

"Deal Reached in Mayor Scandal"

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