State v. Autumn Marie Love Lopez

2019 WI 101SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP913-CR & 2017AP914-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Autumn Marie Love Lopez,
Defendant-Respondent-Petitioner.
------------------------------------------------
State of Wisconsin,
Plaintiff-Appellant,
v.
Amy J. Rodriguez,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 482,922 N.W.2d 855PDC No:2019 WI App 2 - Published
OPINION FILED: November 27, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Green
JUDGE: James R. Beer
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs, joined by KELLY, J.
(except for footnote 2 and statement in ¶34 that
she does not join the lead opinion). (opinion
filed)
KELLY, J. concurs (except for ¶25-31). (opinion
filed)
DISSENTED:
NOT PARTICIPATING: A.W. BRADLEY, J. dissents, joined by DALLET, J.
(opinion filed)
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Kelsey Loshaw and Susan E. Alesia, assistant state
public defenders. There was an oral argument by Kelsey Loshaw.
For the plaintiff-appellant, there was a brief filed by
Lisa E.F. Kumfer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer.
2
2019 WI 101NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2017AP913-CR & 2017AP914-CR
(L.C. Nos. 2017CF39 & 2017CF40)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant, FILED
v. NOV 27, 2019
Autumn Marie Love Lopez, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
State of Wisconsin,
Plaintiff-Appellant,
v.
Amy J. Rodriguez,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals in two consolidated
cases, State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385
Wis. 2d 482, 922 N.W.2d 855, reversing the Green County circuit
Nos. 2017AP913-CR & 2017AP914-CR
court's order.1 The circuit court order dismissed without
prejudice the criminal complaints against Autumn Marie Love
Lopez ("Lopez") and Amy J. Rodriguez ("Rodriguez"), which
charged them with a single count of retail theft of items valued
at more than $500 and less than $5,000, as parties to a crime,
contrary to Wis. Stat. §§ 943.50(1m)(c) and (4)(bf), and 939.05
(2015-16).2 The circuit court concluded that the State may not
charge multiple acts of misdemeanor retail theft as a single
felony. The court of appeals reversed and concluded that the
State may charge multiple acts of retail theft as one continuous
offense pursuant to Wis. Stat. § 971.36(3)(a). We affirm the
court of appeals.
¶2 Pursuant to Wis. Stat. § 971.36(3), "[i]n any case of
theft involving more than one theft, all thefts may be
prosecuted as a single crime" provided certain criteria are
satisfied. This court must decide whether the statutory term
"theft" includes the statutory charge of retail theft. Lopez
argues that it does not. She argues that "theft" includes only
the five modes of theft described in Wis. Stat. § 943.20, not
retail theft. The State argues that "theft" means any type of
theft, including retail theft.
¶3 We conclude that "theft" under Wis. Stat. § 971.36includes retail theft under Wis. Stat. § 943.50. We therefore
1 The Honorable James R. Beer presided.
2 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
Nos. 2017AP913-CR & 2017AP914-CR
conclude that the State has authority to charge multiple retail
thefts under § 943.50 as one continuous offense pursuant to
§ 971.36(3). Thus, we affirm the court of appeals.3
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On February 16, 2017, the State filed criminal
complaints against Lopez and Rodriguez. The complaints allege
that the two women committed a series of retail thefts from Wal-
Mart in Monroe, Wisconsin. Specifically, the complaints allege
that between January 10 and January 25, 2017, Lopez and
Rodriguez together committed seven retail thefts. Lopez was an
employee at Wal-Mart. The State alleges that Lopez pretended to
assist Rodriguez at a self-check-out register. Lopez allegedly
pretended to scan merchandise for Rodriguez, but in reality she
either did not scan it or voided the scan. Rodriguez would then
exit Wal-Mart with her stolen merchandise. The seven retail
thefts ranged in individual value from $126.33 to $313.95. The
total value of all the stolen merchandise was $1,452.12.
¶5 The State could have charged Lopez and Rodriguez each
with seven separate class A misdemeanor retail thefts, contrary
to Wis. Stat. § 943.50(1m)(c) and (4)(a).4 Instead, pursuant to
Justice Daniel Kelly joins this opinion except paragraphs
3
25 through 31. Curiously, while Justice Rebecca Grassl Bradley
joins our mandate and seemingly agrees with at least a portion
of the analysis, she nonetheless does not join any part of this
opinion.
4 The statute provides, in pertinent part, as follows:
943.50 Retail theft; theft of services. . . .
(continued)
3
Nos. 2017AP913-CR & 2017AP914-CR
Wis. Stat. §§ 971.36(3)(a)5 and 943.50(4)(bf),6 the State charged
Lopez and Rodriguez with, as parties to the crime, a single
class I felony count of retail theft of items valued at more
than $500 and less then $5,000. Lopez and Rodriguez each
(1m) A person may be penalized as provided in
sub. (4) if he or she does any of the following
without the merchant's consent and with intent to
deprive the merchant permanently of possession or the
full purchase price of the merchandise or property:
. . .
(c) Intentionally transfers merchandise held for
resale by a merchant or property of a merchant.
. . .
(4) Whoever violates this section is guilty of:
(a) . . . a Class A misdemeanor, if the value
of the merchandise does not exceed $500.
Wis. Stat. § 943.50(1m)(c) and (4)(a).
5 The statute, in pertinent, part provides:
971.36 Theft; pleading and evidence; subsequent
prosecutions. . . .
(3) In any case of theft involving more than one
theft, all thefts may be prosecuted as a single crime
if:
(a) The property belonged to the same owner and
the thefts were committed pursuant to a single intent
and design or in execution of a single deceptive
scheme; . . . .
Wisconsin Stat. § 943.50(4)(bf) provides that "[w]hoever
6
violates this section is guilty of: . . . A Class I felony, if
the value of the merchandise exceeds $500 but does not exceed
$5,000."
4
Nos. 2017AP913-CR & 2017AP914-CR
separately moved to dismiss the complaints, arguing that the
State could only charge them with seven misdemeanors.
¶6 The circuit court held a hearing on both motions to
dismiss. The circuit court granted both motions to dismiss
without prejudice. It concluded that "theft" did not include
retail theft, and the State could not aggregate retail thefts
under Wis. Stat. § 971.36(3). The State appealed.
¶7 The court of appeals reversed. Lopez, 385
Wis. 2d 482, ¶15. It concluded that "the State has authority
under § 971.36(3)(a) to charge the multiple alleged acts of
retail theft as one continuous offense." Id., ¶5.
Specifically, the court of appeals concluded that the statute
"refers generally to 'theft,'" is not limited to theft under
Wis. Stat. § 943.20, and applies to retail theft under Wis.
Stat. § 943.50. Id., ¶12.
¶8 Lopez7 filed a petition for review in this court. We
granted the petition.
II. STANDARD OF REVIEW
¶9 This case requires this court to interpret Wis. Stat.
§ 971.36 to determine whether the statutory term "theft"
7 State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385
Wis. 2d 482, 922 N.W.2d 855, were consolidated for appeal and
remain so before this court. Although Rodriguez did not file a
petition for review, she has informed this court that she wishes
to join Lopez's arguments before this court. We need not
determine whether she has complied with appellate procedure in
so doing. Because these cases remain consolidated, she is bound
by our determination in this case.
5
Nos. 2017AP913-CR & 2017AP914-CR
includes the charge of retail theft. "The interpretation and
application of a statute present questions of law that this
court reviews de novo while benefitting from the analyses of the
court of appeals and circuit court." State v. Alger, 2015 WI 3,
¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler,
2012 WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238). Thus, we
review de novo whether "theft" includes retail theft.
III. ANALYSIS
A. Statutory Interpretation
¶10 We begin our analysis with the language of the
relevant statute, Wis. Stat. § 971.36. State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. The purpose of statutory interpretation is to
give the statute "its full, proper, and intended effect." Id.,
¶44. If the statutory language is plain, we end the inquiry and
give the language its "common, ordinary, and accepted meaning,
except [we give] technical or specially-defined words or
phrases . . . their technical or special definitional meaning."
Id., ¶45.
¶11 This court also analyzes the context and structure of
a statute to determine its meaning. Statutory language "is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes . . . ." Id., ¶46. "A
statute's purpose or scope may be readily apparent from its
plain language or its relationship to surrounding or closely-
6
Nos. 2017AP913-CR & 2017AP914-CR
related statutes——that is, from its context or the structure of
the statute as a coherent whole." Id., ¶49.
¶12 If analyzing a statute's language in context "yields a
plain, clear statutory meaning, then there is no ambiguity" and
we end the inquiry. Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno
v. Milwaukee Cty., 2003 WI 28, ¶20, 260 Wis. 2d 633, 660
N.W.2d 656) (internal quotations omitted). We conclude that the
plain meaning of Wis. Stat. § 971.36 is unambiguous. We base
that conclusion on the language of the statute and confirm that
conclusion using traditional tools of statutory construction.
1. Wisconsin Statute § 971.36
¶13 Wisconsin Stat. § 971.36, which is found in the
criminal procedure chapter of the statutes, is entitled "Theft;
pleading and evidence; subsequent prosecutions." It provides,
in relevant part, as follows:
(1) In any criminal pleading for theft, it is
sufficient to charge that the defendant did steal the
property (describing it) of the owner (naming the
owner) of the value of (stating the value in money).
. . .
(3) In any case of theft involving more than one
theft, all thefts may be prosecuted as a single crime
if:
(a) The property belonged to the same owner and
the thefts were committed pursuant to a single intent
and design or in execution of a single deceptive
scheme; . . . .
¶14 Subsection (1) addresses how to properly draft a
criminal pleading for theft. Subsection (3) addresses the
State's authority to charge multiple thefts as a single crime.
7
Nos. 2017AP913-CR & 2017AP914-CR
Put simply, the State may charge multiple thefts as one theft if
they are all from the same owner and committed together with the
same intent and design, or in the same scheme. Section 971.36
does not define "theft," but the word "theft" appears elsewhere
in the Wisconsin Statutes.
2. Theft-related statutes
¶15 The word "theft" appears in ten criminal statute
titles in Chapter 943 "Crimes Against Property." The chapter
sets forth multiple criminal theft offenses. First is the
general theft statute. Then the chapter sets forth other fact-
specific theft offenses, one being retail theft. See Wis. Stat.
§§ 943.20 ("Theft"); 943.205 ("Theft of trade secrets"); 943.45
("Theft of telecommunications service"); 943.455 ("Theft of
commercial mobile service"); 943.46 ("Theft of video service");
943.47 ("Theft of satellite cable programming"); 943.50 ("Retail
theft; theft of services"); 943.61 ("Theft of library
material"); 943.74 ("Theft of farm-raised fish"); and 943.81
("Theft from a financial institution").
¶16 Lopez argues that retail thefts under Wis. Stat.
§ 943.50 cannot be aggregated under Wis. Stat. § 971.36. A
person commits retail theft under § 943.50 "if he or she
[commits any mode of retail theft] without the merchant's
consent and with intent to deprive the merchant permanently of
possession or the full purchase price of the merchandise or
property." § 943.50(1m). The eight modes of commission are:
intentionally altering merchandise prices; intentionally taking
and carrying away merchandise; intentionally transferring
8
Nos. 2017AP913-CR & 2017AP914-CR
merchandise; intentionally concealing merchandise; intentionally
retaining possession of merchandise; intentionally removing
theft detection devices from merchandise; using or possessing
with intent to use a theft detection shielding device to shield
merchandise; and using or possessing with intent to use a theft
detection device remover to remove a theft detection device from
merchandise. § 943.50(1m)(a)-(h).
¶17 Lopez argues that the only crimes that can be
aggregated under Wis. Stat. § 971.36(3) are theft crimes under
Wis. Stat. § 943.20.8 Section 943.20 defines five modes of
committing theft. They can be summarized as: theft of movable
property; theft of money, negotiable security, instrument,
paper, or negotiable writing by one in possession; theft of
property from one with a superior interest; theft by fraud; and
theft by failure to return property after expiration of a lease
or rental agreement. § 943.20(1)(a)-(e). Thus, in Wisconsin,
"theft" is used to describe a variety of theft crimes.
3. "Theft" includes retail theft under Wis. Stat. § 943.50.
¶18 Since the legislature has used "theft" to describe a
variety of crimes, the parties in this case disagree on what the
word "theft" in Wis. Stat. § 971.36 means. Lopez argues that
"theft" includes only theft crimes under Wis. Stat. § 943.20,
entitled "Theft." Specifically, she argues that: (1) "theft" is
a term of art defined by its elements in § 943.20; (2) "theft"
Section 943.20, while entitled "Theft," does not contain
8
the word "theft" in the text of the statute.
9
Nos. 2017AP913-CR & 2017AP914-CR
in § 971.36 should be read narrowly because "any" modifies
"case," and not "theft"; (3) other theft crimes have their own
aggregation statutes, tending to show that the legislature did
not intend retail theft to be aggregated; and (4) retail theft
is different from "theft" because it requires proof that the
owner was a merchant and the items were merchandise held for
sale.
¶19 The State argues that "theft" is not limited to theft
crimes under Wis. Stat. § 943.20, and includes retail theft
under Wis. Stat. § 943.50. Specifically, the State argues that:
(1) Wis. Stat. § 971.36 uses broad language and applies to "any
case of theft"; (2) the legislature meant "theft" to include
retail theft because the legislature designated it a theft
crime; and (3) the legislature could have explicitly excluded
retail theft from "theft" under § 971.36 by stating it applied
only to § 943.20 or by drafting a separate aggregation statute
for retail theft, but failed to do so. We agree with the State
and conclude that "theft" under § 971.36 is not limited to theft
under § 943.20.
¶20 To begin, Wis. Stat. § 971.36(3) applies "[i]n any
case of theft involving more than one theft . . . ."
§ 971.36(3). The plain language of the statute makes clear that
the legislature's plain meaning applies broadly, to "any case of
theft involving more than one theft." Id. Lopez would have
this court read the phrase "any case" in isolation. But that
argument ignores the plain language of the statute. The plain
10
Nos. 2017AP913-CR & 2017AP914-CR
language of § 971.36(3) applies to "any case of theft involving
more than one theft." Id. (emphasis added.)
¶21 Furthermore, there is no limiting language in the
statute. The legislature could have written, "In any case of
theft [under s. 943.20] involving more than one theft, all
thefts may be prosecuted as a single crime . . . ." But it did
not. In contrast, the legislature did include limiting language
in the three aggregation statutes that follow § 971.36. See
Wis. Stat. §§ 971.365(1)(a) ("In any case under s.
961.41(1)(em), 1999 stats., or s. 961.41(1)(cm), (d), (e), (f),
(g) or (h) involving more than one violation, all violations may
be prosecuted as a single crime . . . ."); 971.366 ("In any case
under s. 943.201 or 943.203 involving more than one violation,
all violations may be prosecuted as a single crime . . . .");
and 971.367 ("In any case under s. 946.79 involving more than
one violation, all violations may be prosecuted as a single
crime . . . ."). When the legislature does not include limiting
language in a statute, we decline to read any into it. State v.
Kozel, 2017 WI 3, ¶39, 373 Wis. 2d 1, 889 N.W.2d 423 ("'We will
not read into the statute a limitation the plain language does
not evidence.'") (quoting Cty. of Dane v. LIRC, 2009 WI 9, ¶33,
315 Wis. 2d 293, 759 N.W.2d 571). The legislature did not limit
§ 971.36(3) to theft under § 943.20. Thus, we decline to read
Lopez's requested limitation into the statute.
¶22 Lopez argues that because retail theft does not have
its own specific aggregation statute the legislature did not
intend retail theft to be aggregated. See Wis. Stat. §§ 971.36611
Nos. 2017AP913-CR & 2017AP914-CR
and 971.367 (aggregating other fact-specific theft offenses).
We disagree. The fact that other aggregation statutes exist
does not demonstrate that the legislature excluded retail theft
from aggregation under Wis. Stat. § 971.36. Rather, the absence
of any limiting language in § 971.36(3) shows that the
legislature did not exclude retail theft from aggregation under
that section. Contrary to Lopez's argument, the legislature
endowed prosecutors with the authority to aggregate retail theft
under § 971.36(3).
¶23 Lopez also argues that retail theft under Wis. Stat.
§ 943.50 does not qualify as "theft" under Wis. Stat. § 971.36because it requires proof that the owner was a merchant and the
items taken were merchandise held for sale. But even when a
theft is of merchandise taken from a merchant, it nonetheless is
a "theft." Thus, we find Lopez's argument unpersuasive.
¶24 We conclude that "theft" under Wis. Stat. § 971.36(3)
includes retail theft under Wis. Stat. § 943.50. Thus, we
conclude that the State may charge multiple retail thefts under
§ 943.50 as one continuous offense pursuant to § 971.36(3).
This conclusion is based on the plain meaning of the statute.
We confirm this plain meaning conclusion by looking at the
context of the statute.
¶25 The parties argue that statute titles are permissive
indicators of meaning in this case. Lopez argues titles matter
because "Theft" is the title of Wis. Stat. § 943.20 (the only
theft statute which predates Wis. Stat. § 971.36(3)) and "theft"
is the word the legislature used in § 971.36(3). The State
12
Nos. 2017AP913-CR & 2017AP914-CR
argues that titles matter because "theft" is the word the
legislature used in § 971.36(3) and the word "theft" appears in
ten statute titles in Chapter 943. Statute titles are not
dispositive. To the extent that we may consider statute titles
as part of the context in which we interpret statutory meaning,
here the titles provide further confirmation for our plain
meaning analysis.
¶26 "Context is important to meaning." Kalal, 271
Wis. 2d 633, ¶46. In fact, a statute's "title and headings are
permissible indicators of meaning." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 221
(2012); see also id. at 21-24 ("Title-and-Headings Canon").
This court has previously concluded that "reference to [a
statute's] title is appropriate" in statutory interpretation.
State v. Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 906
N.W.2d 158. "The titles . . . of the statutes . . . are not
part of the statutes." Wis. Stat. § 990.001(6). But the titles
are part of a statute's context and can be relevant to statutory
interpretation. See Dorsey, 379 Wis. 2d 386, ¶30; see also
Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556
N.W.2d 697 (1996) ("Although titles are not part of
statutes, . . . they may be helpful in interpretation.").
¶27 A statute's title is not part of the statute, but it
is language approved by the legislature. The legislature adopts
the statute's title. Scalia & Garner, supra ¶26, at 221. When
the legislature adopts non-statutory language in titles, that
13
Nos. 2017AP913-CR & 2017AP914-CR
language has meaning and reflects a decision of the legislature.
The United States Supreme Court has said:
[The] heading is but a short-hand reference to the
general subject matter involved . . . . [H]eadings and
titles are not meant to take the place of the detailed
provisions of the text. Nor are they necessarily
designed to be a reference guide or a synopsis . . . .
For interpretive purposes, they are of use only when
they shed light on some ambiguous word or phrase.
They are but tools available for the resolution of a
doubt. But they cannot undo or limit that which the
text makes plain.
Id. (quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio
R.R., 331 U.S. 519, 528-29 (1947)).
¶28 And this court has said:
Titles to sections of a statute are not part of
the statute. Sec. 990.001(6), Stats. However, such
titles may be resorted to in order to resolve a doubt
as to statutory meaning. Federal Rubber Co. v.
Industrial Comm., [185 Wis. 299, 301, 201 N.W. 261(1924)]. However, the converse of the latter rule is
also true that titles should not be resorted to in
order to create a doubt where none would otherwise
exist.
Wisconsin Valley Imp. Co. v. PSC, 9 Wis. 2d 606, 618, 101
N.W.2d 798 (1960). In short, a statute's title may not be used
to contradict its text or to create ambiguity where its meaning
is plain. But the title may be used to confirm a statute's
meaning.
¶29 Although we do not rely on the relevant statutes'
titles to interpret meaning here, we note that this court has
previously relied on a statute's title as context to interpret
its meaning. For example, in State v. Matasek, we concluded
that the phrase "at the time of sentencing" in Wis. Stat.
14
Nos. 2017AP913-CR & 2017AP914-CR
§ 973.015 (2011-12) includes the disposition of probation.9 2014
WI 27, ¶¶34, 39, 353 Wis. 2d 601, 846 N.W.2d 811. In support of
that conclusion, we stated, "The probation statute is part of
chapter 973 of the statutes, which is entitled 'Sentencing.'"
Id., ¶37 (emphasis added). The court did the same in Dorsey.
In that case, we interpreted Wis. Stat. § 904.04(2)(b)(1). We
concluded, "In the context of its title, 'Greater latitude,' we
interpret subd. (2)(b)(1). as adopting the common law greater
latitude rule to permit the admission of other, similar acts of
domestic abuse with greater latitude." Dorsey, 379 Wis. 2d 386,
¶31 (emphasis added).10
9 Probation is not a sentence. State v. Horn, 226
Wis. 2d 637, 647, 594 N.W.2d 772 (1999). But the disposition of
probation occurs "at the time of sentencing." Wis. Stat.
§ 973.015.
10Furthermore, in Wisconsin we have come to know the names
of certain crimes by the statute title rather than the elements
outlined in the statute language. See State v. Davison, 2003 WI
89, 263 Wis. 2d 145, 666 N.W.2d 1 (referring to aggravated
battery, not "caus[ing] substantial bodily harm to another by an
act done with intent to cause bodily harm to that person . . . "
contrary to Wis. Stat. § 940.19(2)); State v. Asboth, 2017 WI
76, 376 Wis. 2d 644, 898 N.W.2d 541 (referring to robbery, not
"with the intent to steal, tak[ing] property from the person or
presence of the owner" by "threatening the imminent use of force
against the person of the owner" with a "dangerous weapon"
contrary to Wis. Stat. § 943.32(1)(b), (2)); State v. Arberry,
2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832 (referring to retail
theft, not taking merchandise "without the merchant's consent
and with intent to deprive the merchant permanently of
possession or the full purchase price of the merchandise . . . "
contrary to Wis. Stat. § 943.50(1m)).
15
Nos. 2017AP913-CR & 2017AP914-CR
¶30 In sum, statute titles historically have had
significance in Wisconsin case law. Courts have indeed observed
titles to confirm statutory interpretation or even to resolve an
ambiguity. Titles may provide context. Thus, we conclude that
we may here consult statute titles to confirm our interpretation
of the plain meaning of the statutes at issue.
¶31 The plain language of Wis. Stat. § 971.36(3) refers to
"theft" generally. That same word——"theft"——is found in the
title of Wis. Stat. § 943.50, "Retail theft; theft of services."
The "Retail theft" portion of the title provides context for and
confirms our interpretation of the word "theft" in § 971.36(3).
We conclude that the general reference to "theft" in § 971.36(3)
includes retail theft under § 943.50. Thus, we conclude that
the State may charge multiple retail thefts under § 943.50 as
one continuous offense pursuant to § 971.36(3).11
¶32 The court of appeals concluded that the State properly
exercised its Wis. Stat. § 971.36(3) authority in this case
because the merchandise "belonged to the same owner," Wal-Mart,
and "the thefts were committed pursuant to a single intent and
11The State argued, in the alternative, that it has
discretionary authority to charge multiple retail thefts as one
single felony. Because we conclude the State has statutory
authority pursuant to Wis. Stat. § 971.36(3), we do not address
whether it has discretionary authority. Lopez argued that the
State does not have discretionary authority to charge multiple
retail thefts as one single felony because the charge would be
improperly duplicitous. Because we do not address the State's
discretionary authority argument, and because we determine this
case is properly aggregated under § 971.36, we need not address
Lopez's duplicity argument.
16
Nos. 2017AP913-CR & 2017AP914-CR
design or in execution of a single deceptive scheme." Wis.
Stat. § 971.36(3)(a); Lopez, 385 Wis. 2d 482, ¶14. We do not
disturb that conclusion.
IV. CONCLUSION
¶33 We conclude that "theft" under Wis. Stat. § 971.36includes retail theft under Wis. Stat. § 943.50. We therefore
conclude that the State has authority to charge multiple retail
thefts under § 943.50 as one continuous offense pursuant to
§ 971.36(3). Thus, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
17
Nos. 2017AP913-CR & 2017AP914-CR.rgb
¶34 REBECCA GRASSL BRADLEY, J. (concurring). I join the
mandate of the lead opinion1 affirming the decision of the court
of appeals. I agree that under a plain meaning analysis, the
word "theft" used in Wis. Stat. § 971.36(3) includes retail
theft; therefore, the State can aggregate the seven instances of
retail thefts into one charge. I cannot, however, join the lead
opinion's analysis because it improperly relies on sources
beyond the unambiguous text of the statute we interpret.2
¶35 As a preliminary matter, the lead opinion should have
more thoroughly explained why Amy J. Rodriguez, who did not
participate in the appeal before this court, nevertheless
appears in the caption. The State brought criminal complaints
against Autumn Marie Love Lopez and Rodriguez separately in the
circuit court. Both women filed separate motions to dismiss,
which the circuit court granted. Both women appealed to the
court of appeals, at which point the State filed a motion asking
the court of appeals to consolidate the two cases for purposes
of briefing and disposition. The court of appeals granted the
1 I refer to Justice Ziegler's opinion as the "lead opinion"
because Section III.G.4. of the court's internal operating
procedures provides that "[i]f . . . the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate
writings as the 'lead opinion' unless a separate writing garners
the vote of a majority of the court."
2 Although the lead opinion correctly concludes that "theft"
under Wis. Stat. § 971.36(3) includes retail theft, the lead
opinion's reliance on statutory titles to inform its analysis of
the text permeates the lead opinion's reasoning to the extent
that I cannot join the opinion.
1
Nos. 2017AP913-CR & 2017AP914-CR.rgb
State's motion. As a result, the captions from Lopez's and
Rodriguez's cases were joined into one consolidated caption.
¶36 Only Lopez filed a petition for review of the court of
appeals decision. Rodriguez declined to ask this court to
review the decision of the court of appeals adverse to her.
Rodriguez never filed a petition for review nor did she file a
letter saying she joins the petition for review filed by Lopez.
¶37 Although Attorney Tristan Breedlove represented Lopez
in the court of appeals, Attorneys Susan Alesia and Kelsey
Loshaw represent Lopez before this court. On June 10, 2019,
Attorneys Alesia and Loshaw filed the first brief on behalf of
Petitioner Lopez. On June 28, 2019, the State filed its
response brief.3 On July 10, 2019, Rodriguez's attorney filed a
letter stating:
I must correct my previous letter from today. I
represent Defendant-Respondent Amy J. Rodriguez. The
State has filed its brief. I expect that Defendant-
Respondent-Petitioner Autumn Marie Love Lopez, by
Attorney Tristan Breedlove, will be filing a response
brief setting forth the same positions she presented
to the court of appeals. I expect the issues to be
discussed in Attorney Breedlove's brief will be
identical to the issues existing in my client's case.
I do not intend to file a brief on my client's behalf
and do not intend to participate in oral argument. My
client will be joining Attorney Breedlove in her
argument.
(Emphasis added.) Rodriguez's attorney's letter includes some
factual errors, both with respect to who represents Lopez
(Breedlove was no longer Lopez's lawyer; Attorneys Alesia and
3The State's brief erroneously lists both Lopez and
Rodriguez as petitioners. As noted, only Lopez is a petitioner.
2
Nos. 2017AP913-CR & 2017AP914-CR.rgb
Loshaw were) and with regard to which briefs had been filed
(Lopez filed the first brief and the State filed the response).
Further, Rodriguez's attorney told the court he would not be
filing a brief on his client's behalf or giving oral argument,
but Rodriguez would join "Breedlove in her argument." Clearly,
Rodriguez could not have filed a brief in this court or
participated in oral argument because she was not a petitioner.4
Moreover, Breedlove did not make any argument in this court so
Rodriguez could not "join" Breedlove's argument.
¶38 Although the lead opinion acknowledges that Rodriguez
did not file a petition seeking review in this court, it
nevertheless notes that Rodriguez "join[s]" Lopez's arguments
before us. See lead op., ¶8 n.7. Because Rodriguez never filed
a petition for review, Rodriguez could not participate in this
matter at all without requesting leave of the court to do so.5
Instead of allowing a non-party to skirt the rules of appellate
procedure and "join" the petitioner's argument, the lead opinion
instead should have indicated that, having elected not to file
her own petition, Rodriguez is bound by the court's decision
with respect to Lopez's petition. By allowing a non-party to
"join" a petitioner's "argument," the lead opinion suggests the
rules of appellate procedure need not be followed.
4Rodriguez's caption remained consolidated with Lopez's
because once the cases are consolidated on appeal, the captions
remain together unless a court orders otherwise.
5See Wis. Stat. § 809.62(1r) providing the rules governing
the petition for review process and declaring that "Supreme
court review is a matter of judicial discretion, not of
right[.]"
3
Nos. 2017AP913-CR & 2017AP914-CR.rgb
¶39 As far as the reasoning underlying the court's
decision, the lead opinion should have relied solely on the
statutory text instead of attempting to divine legislative
"intent" or elevating the importance of statutory titles in
ascertaining the meaning of a law. Despite its conclusion that
the plain text of the statute is unambiguous, the lead opinion
nevertheless agrees with the State's argument that "the
legislature meant 'theft' to include retail theft" and says "the
legislature's plain meaning applies broadly." Lead op., ¶¶19-
20. An interpretation based on what the legislature intended a
statute to mean is improper. "'[W]e do not inquire what the
legislature meant; we ask only what the statute means.'" State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶39,
271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). Courts
disregard what the legislature may have "intended" when it
passed a law and instead ascertain the meaning of the words the
legislature actually enacted because "[i]t is the enacted law,
not the unenacted intent, that is binding on the public." Id.,
¶44; see also Winebow, Inc. v. Capitol-Husting Co., 2018 WI 60,
¶40, 381 Wis. 2d 732, 914 N.W.2d 631 (Rebecca Grassl Bradley,
J., dissenting) ("[L]egislative intent behind enactment of a
law . . . cannot govern statutory interpretation. Rather, our
analysis must focus on the statutory language itself[.]"); State
v. Grandberry, 2018 WI 29, ¶55, 380 Wis. 2d 541, 910 N.W.2d 214(Kelly, J., concurring) ("[W]e give effect only to what the
legislature does, not what it tried to do."). The legislature's
intent should play no role in the court's analysis; we analyze
4
Nos. 2017AP913-CR & 2017AP914-CR.rgb
the text of the statute in ascertaining its meaning. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 391-396 (2012) ("[C]ollective
intent is pure fiction because dozens if not hundreds of
legislators have their own subjective views on the minutiae of
bills they are voting on[.]"); see also Robert E. Keeton, Keeton
on Judging in the American Legal System 210-11 (Lexis Pub. 1999)
("'[L]egislative intent' . . . is a legal fiction. Only a
natural person can have a state of mind such as intent. No
legal entity such as a legislature can have an 'intent' in a
strictly factual sense.").
¶40 The lead opinion acknowledges that if the statutory
language is plain and unambiguous, we end our inquiry into its
meaning. Lead op., ¶¶10, 12. The lead opinion correctly
concludes that the plain meaning of Wis. Stat. § 971.36 is
unambiguous. Lead op., ¶12. The lead opinion should have
stopped there. Instead, the lead opinion devotes nearly half of
its analysis to a discussion of statutory titles, lending
unwarranted significance to their role in statutory
interpretation.
¶41 Titles are not part of the statute's text. The
legislature itself says so in Wis. Stat. § 990.001(6): "The
titles to subchapters, sections, paragraphs and subdivisions of
the statutes and history notes are not part of the statutes."
While titles have been employed as "permissible indicators of
5
Nos. 2017AP913-CR & 2017AP914-CR.rgb
meaning"6 we have for over half-a-century limited their use to
resolving doubt or ambiguity in the text. Wisconsin Valley
Improvement Co. v. Public Serv. Comm'n, 9 Wis. 2d 606, 618, 101
N.W.2d 798 (1960) ("[T]itles may be resorted to in order to
resolve a doubt as to statutory meaning."); Pulsfus Poultry
Farms, Inc. v. Town of Leeds, 149 Wis. 2d 797, 806, 440
N.W.2d 329 (1989) ("Titles may be used to resolve doubts as to
ambiguous statutory meaning even though they are not part of the
law."); State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132(1994) ("In the face of such plain and unambiguous language we
must disregard the title of the statute. Consideration of a
statutory title may be used only to resolve doubt as to the
meaning of the statute.") (internal citation omitted).
¶42 The lead opinion recites these longstanding
principles, but does not apply them. The lead opinion
explicitly holds the applicable statute in this case is plain
and not ambiguous. Nevertheless, the lead opinion relies
heavily on statutory titles in order to support its conclusion.
Doing so weakens it by suggesting the text itself is not enough
to answer the question presented.
¶43 The danger of employing statutory titles as part of
the court's reasoning is not trivial. Employing such tools in a
manner contrary to fundamental rules of textual interpretation
risks "undo[ing] or limit[ing] that which the text makes plain."
Scalia & Garner, Reading Law at 221 (quoting Brotherhood of R.R.
6Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 221 (2012).
6
Nos. 2017AP913-CR & 2017AP914-CR.rgb
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29
(1947)). For example, in State v. Dorsey,7 the lead opinion
misused a statutory title to read in "evidentiary preconditions
wholly absent from the text." Id., 379 Wis. 2d 386, ¶73
(Rebecca Grassl Bradley, J., concurring). Although in this case
the lead opinion does not use statutory titles to read something
into the statutory text, its extensive and unnecessary reliance
on titles in its reasoning signals a willingness to bend if not
altogether rewrite longstanding principles of statutory
interpretation. The lead opinion seems to give titles the same
interpretive significance as the text, which flies in the face
of the cardinal rule that the "text must control over title."
Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556
N.W.2d 697 (1996).
¶44 The lead opinion could have applied Wisconsin cases
that recognize titles as nothing more than "tools available for
the resolution of a doubt" and confine their use to "shed light
on some ambiguous word or phrase."8 Doing so would have ended
7 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158.
8 Scalia & Garner, Reading Law at 221 (quoting Brotherhood
of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519,
528-29 (1947)). Notably, and unlike Wisconsin, the United States
Code contains no provision expressly excluding titles from the
statutes, which explains federal courts' reliance on titles to
ascertain statutory meaning in the presence of ambiguity.
Recognizing that many state legislatures address titles
differently, the authors of Reading Law advise the interpreter
to check the statutes for the legislature's directives regarding
the use of titles. Scalia & Garner, Reading Law at 224. Given
the Wisconsin legislature's declaration that titles "are not
part of the statutes," titles should not be used even to resolve
an ambiguity. Wis. Stat. § 990.001(6).
7
Nos. 2017AP913-CR & 2017AP914-CR.rgb
the analysis after construing the plain meaning of the statute
without resort to sources extraneous to the text. Because the
lead opinion did not apply the unadulterated canons of statutory
interpretation or the legislature's directive that titles are
not part of the statutes, I respectfully concur.
¶45 I am authorized to state that Justice DANIEL KELLY
joins this concurrence except for footnote 2 and the statement
in ¶34 that I do not join the lead opinion.
8
Nos. 2017AP913-CR & 2017AP914-CR.dk
¶46 DANIEL KELLY, J. (concurring). I join the majority
opinion except for ¶¶25-31; I also join Justice Rebecca Grassl
Bradley's concurrence except for footnote 2 and her statement
that she does not join the lead opinion in ¶34.
1
Nos. 2017AP913-CR & 2017AP914-CR.awb
¶47 ANN WALSH BRADLEY, J. (dissenting). When the
legislature writes the word "theft" in a statute, it means theft
and only theft. It does not mean "theft of trade secrets,"1
"theft of farm-raised fish"2 or "retail theft."3
¶48 We presume that the legislature chooses its statutory
language "carefully and precisely" to express its desired
meaning. Industry to Indus., Inc. v. Hillsman Modular Molding,
Inc., 2002 WI 51, ¶19 n.5, 252 Wis. 2d 544, 644 N.W.2d 236.
"Theft" is a word with a precise meaning set forth in the
statutes.4
¶49 Yet the majority/lead opinion5 ignores the precise
meaning the legislature has afforded the term and instead
1 See Wis. Stat. § 943.205.
2 See Wis. Stat. § 943.74.
3 See Wis. Stat. § 943.50.
4 See Wis. Stat. § 943.20.
5 Justice Ziegler's opinion observes that Justice Kelly
joins the opinion "except paragraphs 25 through 31."
Majority/lead op., ¶3 n.3. Thus, I refer to Justice Ziegler's
opinion as the "majority/lead" opinion throughout this dissent
because the opinion in its entirety is not joined by a majority
of the court. The opinion is a "majority" except with respect
to paragraphs 25 through 31, which discuss the use of statutory
titles in interpreting a statute. These paragraphs represent
the rationale of only three justices and thus constitute a lead
opinion.
The only reference to "lead opinions" in our Internal
Operating Procedures (IOPs) states that if during the process of
circulating and revising opinions, "the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate
writings as the 'lead opinion' unless a separate writing garners
the vote of a majority of the court." IOP III.G.4.
(continued)
1
Nos. 2017AP913-CR & 2017AP914-CR.awb
broadly stretches its application. The majority/lead opinion's
interpretation of the theft aggregation statute, Wis. Stat.
§ 971.36, employs a heretofore unrecognized "plain meaning"
analysis which belies the plain text of the statute, the larger
statutory context, and the statute's history.
¶50 Accordingly, I respectfully dissent.
I
¶51 This case arises from charges filed against Autumn
Marie Love Lopez and Amy Rodriguez related to a string of seven
retail thefts that took place over a period of a little over two
weeks in January of 2017. Majority/lead op., ¶4. The State
alleges that Lopez, a Wal-Mart employee, would pretend to assist
Rodriguez at a self-check-out register, but would not actually
properly scan merchandise. Id. Rodriguez was then able to walk
out with the stolen merchandise. Id.¶52 The value of the merchandise taken using this method
ranged from $126.33 to $313.95 per occurrence, and the value of
everything taken was $1,452.12 in total. Id. Rather than
charging Lopez and Rodriguez with seven separate class A
misdemeanor retail theft counts, the State sought to charge each
For further discussion of our procedure regarding lead
opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385
Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
See also two prior certifications from the court of appeals that
have asked us to reexamine our lead opinion procedure. State v.
Dowe, 120 Wis. 2d 192, 192-93, 352 N.W.2d 660 (1984) (per
curiam); State v. Hawley, No. 2015AP1113-CR, unpublished
certification, 2-3 (Nov. 21, 2018); see also State v. Lynch,
2016 WI 66, ¶145, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson and
Ann Walsh Bradley, JJ., concurring in part, dissenting in part).
2
Nos. 2017AP913-CR & 2017AP914-CR.awb
of them with a single class I felony count. Id., ¶5; see Wis.
Stat. § 943.50(4)(a) & (bf) (providing that one who commits
retail theft is guilty of a class A misdemeanor if the value of
the merchandise does not exceed $500 and a class I felony if the
value of the merchandise exceeds $500 but does not exceed
$5,000).
¶53 Making no distinction between the crimes of theft and
retail theft, the State cited Wis. Stat. § 971.36(3)(a) as
authority for an aggregation of retail theft charges. The
statute provides that "[i]n any case of theft involving more
than one theft, all thefts may be prosecuted as a single crime
if . . . [t]he property belonged to the same owner and the
thefts were committed pursuant to a single intent and design or
in execution of a single deceptive scheme . . . ." Lopez and
Rodriguez moved to dismiss the complaints against them, arguing
that "theft" as used in § 971.36 does not encompass retail
theft.
¶54 Agreeing with Lopez and Rodriguez, the circuit court
dismissed the charges without prejudice. On appeal, the court
of appeals reversed. Purporting to engage in a "plain meaning"
analysis, a majority of this court6 now affirms the court of
appeals, transforming misdemeanor charges into a felony.
Justice Ziegler's majority/lead opinion and Justice
6
Rebecca Grassl Bradley's concurrence both ultimately approve of
the aggregation of charges in this case. Although in this
dissent I largely address the majority/lead opinion, the
concurrence likewise does not base its conclusion on the
particular meaning of "theft" set forth in Wis. Stat. § 943.20.
3
Nos. 2017AP913-CR & 2017AP914-CR.awb
II
¶55 The majority/lead opinion correctly identifies this
case as presenting an issue of statutory interpretation.
However, its analysis quickly goes astray. The issue before the
court is discrete——whether "theft" as utilized in Wis. Stat.
§ 971.36(3)(a) includes the crime of "retail theft." The
majority/lead opinion responds in the affirmative, applying a
heretofore unrecognized plain meaning analysis that belies the
theft aggregation statute's plain language.
¶56 As noted, Wis. Stat. § 971.36(3)(a), the theft
aggregation statute, provides: "[i]n any case of theft
involving more than one theft, all thefts may be prosecuted as a
single crime if . . . [t]he property belonged to the same owner
and the thefts were committed pursuant to a single intent and
design or in execution of a single deceptive scheme . . . ."
¶57 The majority/lead opinion purports to apply our
established statutory interpretation methodology. Its analysis
and conclusion rely heavily on the use of statutory titles.
Indeed, a substantial part of the analysis is spent justifying
its use of statutory titles as part of a plain meaning analysis—
—but to no avail. See majority/lead op., ¶¶25-30.
¶58 Although the majority/lead opinion declares over and
over again that it is engaging in a "plain meaning" analysis, it
apparently fails to recognize that under the established
statutory interpretation methodology, it cannot do what it
purports to do.
4
Nos. 2017AP913-CR & 2017AP914-CR.awb
¶59 The legislature has clearly declared that a title is
not part of a statute. Wis. Stat. § 990.001(6). The title of a
statute can never be used to establish a statute's plain
meaning. Rather, once ambiguity is found, reference to a
statute's title is permissible to relieve ambiguity. State v.
Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 906 N.W.2d 158.
¶60 Nevertheless, the majority/lead opinion asserts that
titles are part of a statutory plain meaning analysis because
"titles are part of a statute's context . . . ." Majority/lead
op., ¶26. We have previously described a statute's context as
"including the language and structure of surrounding or closely
related statutes . . . ." Bostco LLC v. Milwaukee Metro.
Sewerage Dist., 2013 WI 78, ¶46, 350 Wis. 2d 554, 835 N.W.2d 160(citations omitted).
¶61 The majority/lead opinion's contention that something
that is not part of the statutes can now be included when
examining a statute's context is both novel and unsupportable.
Resting upon such a faulty foundation, the majority/lead
opinion's analysis cannot be sustained.
¶62 In short, the majority/lead opinion's use of title as
part of a plain meaning statutory analysis finds no mooring in
the law. The very cases cited by the majority/lead opinion as
authority supporting such a premise, upon closer examination,
either are distinguishable or actually undermine the premise.
See, e.g., Dorsey, 379 Wis. 2d 386, ¶30 (explaining that a
statutory title is a permissible indicator of meaning when
resolving ambiguity); Wisconsin Valley Imp. Co. v. Pub. Serv.
5
Nos. 2017AP913-CR & 2017AP914-CR.awb
Comm'n, 9 Wis. 2d 606, 618, 101 N.W.2d 798 (1960) (same). For a
more extensive discussion of this fundamental flaw in the
majority/lead opinion's analysis, see Justice Rebecca Grassl
Bradley's concurrence, ¶¶40-42.
¶63 With the above discussion of the majority/lead
opinion's analytical infirmities out of the way, I turn to what
actually is the established statutory interpretation
methodology. Our interpretation of a statute should begin with
the language itself. State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the
meaning of the statute is plain, we need not inquire further.
Id. We are to give statutory language its "common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id.¶64 Consistent with Kalal, Wis. Stat. § 990.01(1) provides
that "[a]ll words and phrases shall be construed according to
common and approved usage; but technical words and phrases and
others that have a peculiar meaning in the law shall be
construed according to such meaning." Although Wis. Stat.
§ 971.36 does not define "theft," a "peculiar meaning in the
law" is not far away. Namely, Wis. Stat. § 943.20 prohibits the
crime of "theft," setting forth five different modes of
commission for theft.7 Accordingly, pursuant to § 990.01(1),
7 Wisconsin Stat. § 943.20(1) provides:
(1) Acts. Whoever does any of the following may be
penalized as provided in sub. (3):
(continued)
6
Nos. 2017AP913-CR & 2017AP914-CR.awb
(a) Intentionally takes and carries away, uses,
transfers, conceals, or retains possession of movable
property of another without the other's consent and
with intent to deprive the owner permanently of
possession of such property.
(b) By virtue of his or her office, business or
employment, or as trustee or bailee, having possession
or custody of money or of a negotiable security,
instrument, paper or other negotiable writing of
another, intentionally uses, transfers, conceals, or
retains possession of such money, security,
instrument, paper or writing without the owner's
consent, contrary to his or her authority, and with
intent to convert to his or her own use or to the use
of any other person except the owner. A refusal to
deliver any money or a negotiable security,
instrument, paper or other negotiable writing, which
is in his or her possession or custody by virtue of
his or her office, business or employment, or as
trustee or bailee, upon demand of the person entitled
to receive it, or as required by law, is prima facie
evidence of an intent to convert to his or her own use
within the meaning of this paragraph.
(c) Having a legal interest in movable property,
intentionally and without consent, takes such property
out of the possession of a pledgee or other person
having a superior right of possession, with intent
thereby to deprive the pledgee or other person
permanently of the possession of such property.
(d) Obtains title to property of another person by
intentionally deceiving the person with a false
representation which is known to be false, made with
intent to defraud, and which does defraud the person
to whom it is made. "False representation" includes a
promise made with intent not to perform it if it is a
part of a false and fraudulent scheme.
(e) Intentionally fails to return any personal
property which is in his or her possession or under
his or her control by virtue of a written lease or
written rental agreement after the lease or rental
agreement has expired. This paragraph does not apply
to a person who returns personal property, except a
motor vehicle, which is in his or her possession or
(continued)
7
Nos. 2017AP913-CR & 2017AP914-CR.awb
when the legislature refers to "theft" it refers to the
particular meaning set forth by the elements of § 943.20. There
is no other meaning of "theft" in our statutes for us to apply.8
¶65 Further, the statute's syntax supports the view that
"theft" in Wis. Stat. § 971.36(3) is limited to "theft" and does
not encompass "retail theft." To explain, § 971.36(3) applies
"[i]n any case of theft" (emphasis added). "Any" modifies
"case," not "theft." If the statute were written to apply "in a
case of any theft" the result may be different. However, this
is not the language the legislature chose.
¶66 This narrow interpretation of "theft" is consistent
with the larger statutory context in which the theft aggregation
statute lies. Several other aggregation provisions are very
near to Wis. Stat. § 971.36, and each of these statutes
specifically, by statute number, states the crimes to which it
applies. See Wis. Stat. §§ 971.366 ("In any case under s.
943.201 or 943.203 involving more than one violation . . . ")
under his or her control by virtue of a written lease
or written rental agreement, within 10 days after the
lease or rental agreement expires.
See
8 Wis JI——Criminal 1441 (theft——Wis. Stat.
§ 943.20(1)(a)), 1444 (theft by employee, trustee, or bailee
(embezzlement)——§ 943.20(1)(b)), 1450 (theft by one having an
undisputed interest in property from one having superior right
of possession——§ 943.20(1)(c)), 1453A (theft by fraud:
representations made to the owner, directly or by a third
person——§ 943.20(1)(d)), 1453B (theft by fraud: representations
made to an agent——§ 943.20(1)(d)), 1453C (theft by fraud:
failure to disclose as a representation——§ 943.20(1)(d)), 1455
(theft by failure to return leased or rented property——
§ 943.20(1)(e)) (2019).
8
Nos. 2017AP913-CR & 2017AP914-CR.awb
(emphasis added), 971.367 ("In any case under 946.79 involving
more than one violation . . . ") (emphasis added).
¶67 Had the legislature wanted Wis. Stat. § 971.36(3) to
apply to retail theft under Wis. Stat. § 943.50, it certainly
could have said so. These other aggregation statutes
demonstrate that the legislature knew how to specifically
delineate the application of an aggregation statute, yet chose
not to in this instance. Instead, it used the word "theft," a
word with a "peculiar meaning in the law."
¶68 Viewing the majority/lead opinion in conjunction with
the other aggregation statutes raises more questions than it
answers with regard to the breadth of the majority/lead
opinion's determination.
¶69 Is the majority/lead opinion concluding that Wis.
Stat. § 971.36(3) applies to all "theft offenses?" See
majority/lead op., ¶15. Are "theft offenses" those that have
the word "theft" in their titles only? See id., ¶¶25-30. What
about, for example, the crimes of unauthorized use of an
individual's personal identifying information or documents under
Wis. Stat. § 943.201 and unauthorized use of an entity's
identifying information or documents under Wis. Stat. § 943.203?
Courts have referred to such charges as "identity theft." See
State v. Stewart, 2018 WI App 41, ¶26, 383 Wis. 2d 546, 916
N.W.2d 188.
¶70 The majority/lead opinion creates confusion regarding
the application of aggregation statutes to these crimes. Each
has its own specific aggregation provision. See Wis. Stat.
9
Nos. 2017AP913-CR & 2017AP914-CR.awb
§ 971.366. Yet, the majority/lead opinion is unclear as to
whether its holding extends to "identity theft" charges.
¶71 Further, the history of the theft aggregation statute
indicates that its provisions were intended to apply to Wis.
Stat. § 943.20 only. The modern versions of both the theft and
theft aggregation statutes were enacted in 1955. Wis. Stat. §
943.20 (1955-56); Wis. Stat. § 955.31 (1955-56); see L. 1955, c.
696.9 At this time, § 943.20 was the only theft-titled statute.
All other "fact-specific theft offenses" cited by the
majority/lead opinion came later.10 See majority/lead op., ¶15.
Consequently, "any case of theft" under the theft aggregation
statute clearly referred to only § 943.20 at the time of the
statute's passage.
Wisconsin Stat. § 955.31 was renumbered to Wis. Stat. §
9
971.36 in 1969. The substance of the statute did not change.
L. 1969, c. 255, § 63.
Wisconsin Stat. § 943.45 ("Theft of telecommunications
10
service," originally entitled "obtaining telecommunications
service by fraud") was enacted in 1961. L. 1961, c. 248.
Section 943.205 ("Theft of trade secrets") was enacted in 1965.
L. 1965, c. 438. Section 943.50 (originally entitled
"shoplifting," now "retail theft; theft of services") was
enacted in 1969. L. 1969, c. 254. Wisconsin Stat. § 943.61
("Theft of library material") was enacted in 1979 as Wis. Stat.
§ 943.60. L. 1979, c. 245, § 4. Both Wis. Stat. § 943.46(currently entitled "Theft of video service") and Wis. Stat.
§ 943.47, ("Theft of satellite cable programming") were enacted
in 1987. 1987 Wis. Act 345, §§ 2-3. Wisconsin Stat. § 943.455
(currently entitled "Theft of commercial mobile service,"
originally entitled "Theft of cellular telephone service") was
enacted in 1991. 1991 Wis. Act 39, § 3619m. Section 943.74
("Theft of farm-raised fish") was enacted in 2001. 2001 Wis.
Act 91, § 3. Lastly, Wis. Stat. § 943.81 ("Theft from a
financial institution") was enacted in 2005. 2005 Wis. Act 212,
§ 8.
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¶72 It should be observed that under the majority/lead
opinion's argument, retail theft charges could not have been
aggregated under Wis. Stat. § 971.36 at the time the retail
theft statute was enacted. Wisconsin Stat. § 943.50 was
originally titled "shoplifting," and not "retail theft." See
Wis. Stat. § 943.50 (1969-70).11 The majority/lead opinion's
reliance on the statutory title would thus have provided no
support for the proposition that § 943.50 denominates a "theft"
offense. See majority/lead op., ¶31. "Shoplifting" is not the
crime of "theft," just as "retail theft" is not "theft."
¶73 In sum, the majority/lead opinion's interpretation of
the theft aggregation statute rests upon an unsupportable plain
meaning analysis, which runs counter to established principles
of statutory interpretation. It betrays the statute's text, the
statute's context, and the statutory history.
¶74 For the reasons set forth above, I respectfully
dissent.
¶75 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
11 See L. 1981, c. 270, § 2 (amending title of § 943.50 from
"Shoplifting" to "Retail theft").
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