State v. Rodriguez
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The Supreme Court affirmed the decision of the court of appeals reversed the judgment of the circuit court dismissing without prejudice criminal complaints against Autumn Lopez and Amy Rodriguez charging 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, holding that the State may charge multiple acts of retail theft as one continuous offense pursuant to Wis. Stat. 971.36(3)(a).
In dismissing the criminal complaints against the defendants the circuit court ruled that the State may not charge multiple acts of misdemeanor retail theft as a single felony. The court of appeals reversed. The Supreme Court affirmed, holding that the State has the authority to charge multiple retail thefts under Wis. Stat. 943.50 as one continuous offense pursuant to section 971.36(3).
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2019 WI 101 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP913-CR & 2017AP914-CR 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 855 PDC No:2019 WI App 2 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: November 27, 2019 September 9, 2019 Circuit Green James R. Beer 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 101 NOTICE 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, FILED Plaintiff-Appellant, 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. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. 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. court's order.1 prejudice Lopez the The circuit criminal ("Lopez") and court complaints Amy J. 2017AP913-CR & 2017AP914-CR order against Rodriguez dismissed Autumn without Marie ("Rodriguez"), Love 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 theft Pursuant to Wis. Stat. § 971.36(3), "[i]n any case of involving prosecuted as satisfied. a more than single one crime" theft, provided all thefts certain may criteria be are This court must decide whether the statutory term "theft" includes the statutory charge of retail theft. argues that it does not. Lopez 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. includes retail theft under Wis. Stat. § 943.50. 1 Stat. § 971.36 We therefore The Honorable James R. Beer presided. All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 2 2 Nos. 2017AP913-CR & 2017AP914-CR conclude that the State has authority to charge multiple retail thefts under § 971.36(3). § 943.50 one continuous offense pursuant to Thus, we affirm the court of appeals.3 I. ¶4 as On FACTUAL BACKGROUND AND PROCEDURAL POSTURE February 16, 2017, the State complaints against Lopez and Rodriguez. filed criminal The complaints allege that the two women committed a series of retail thefts from WalMart in Monroe, Wisconsin. that between January 10 Specifically, the complaints allege and January 25, 2017, Rodriguez together committed seven retail thefts. employee at Wal-Mart. Lopez and Lopez was an 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 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. 3 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 violates this section is guilty of: . . . A Class I felony, if the value of the merchandise exceeds $500 but does not exceed $5,000." 6 4 Nos. 2017AP913-CR & 2017AP914-CR separately moved to dismiss the complaints, arguing that the State could only charge them with seven misdemeanors. ¶6 dismiss. The circuit court held a hearing on both motions to 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). ¶7 The court Wis. 2d 482, ¶15. under theft appeals reversed. Lopez, 385 It concluded that "the State has authority § 971.36(3)(a) retail of The State appealed. as to charge one the continuous multiple alleged offense." acts Id., of ¶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. ¶8 Id., ¶12. Lopez7 filed a petition for review in this court. We granted the petition. II. ¶9 § 971.36 STANDARD OF REVIEW This case requires this court to interpret Wis. Stat. to determine whether the statutory term "theft" 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. 7 5 Nos. includes the charge of retail theft. 2017AP913-CR & 2017AP914-CR "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. A. ¶10 We begin our ANALYSIS Statutory Interpretation analysis with relevant statute, Wis. Stat. § 971.36. the language of the 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." ¶44. Id., 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 surrounding or closely-related statutes . . . ." language of Id., ¶46. "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely6 Nos. 2017AP913-CR & 2017AP914-CR related statutes——that is, from its context or the structure of the statute as a coherent whole." ¶12 Id., ¶49. 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. 2003 Milwaukee Cty., WI 28, ¶20, 260 N.W.2d 656) (internal quotations omitted). Wis. 2d 633, 660 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. ¶13 Wisconsin Wisconsin Statute § 971.36 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 criminal Subsection pleading (1) for addresses theft. how to Subsection properly (3) draft addresses a 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. ¶15 The word Theft-related statutes "theft" appears in ten criminal titles in Chapter 943 "Crimes Against Property." sets forth multiple criminal general theft statute. theft offenses. statute The chapter First is the 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 material"); of 943.74 services"); ("Theft of 943.61 ("Theft farm-raised of library fish"); and 943.81 under Wis. Stat. ("Theft from a financial institution"). ¶16 Lopez argues that retail thefts § 943.50 cannot be aggregated under Wis. Stat. § 971.36. person commits [commits any retail mode of theft retail under § 943.50 theft] without "if the he or A she 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; 8 intentionally transferring 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. ¶17 § 943.50(1m)(a)-(h). 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 committing theft. property; theft Section 943.20 defines five modes of They can be summarized as: theft of movable 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 the word "theft" in the text of the statute. 8 9 Nos. in § 971.36 should be read narrowly 2017AP913-CR & 2017AP914-CR 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 crimes The State argues that "theft" is not limited to theft under Wis. Stat. § 943.20, under Wis. Stat. § 943.50. and includes retail theft 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 case of To begin, theft § 971.36(3). Wis. Stat. involving § 971.36(3) more than applies one "[i]n any theft . . . ." 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." ¶21 statute. theft Furthermore, Id. (emphasis added.) there is no limiting language [under s. 943.20] involving more than one theft, all But it did In contrast, the legislature did include limiting language in the three aggregation statutes that follow § 971.36. Wis. the The legislature could have written, "In any case of thefts may be prosecuted as a single crime . . . ." not. in Stat. §§ 971.365(1)(a) ("In any case under See 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. 11 See Wis. Stat. §§ 971.366 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. of any limiting language in Rather, the absence § 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. § 971.36 because 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." ¶24 includes Thus, we find Lopez's argument unpersuasive. We conclude that "theft" under Wis. Stat. § 971.36(3) 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). 12 The State Nos. argues that titles matter because 2017AP913-CR & 2017AP914-CR "theft" is the word the legislature used in § 971.36(3) and the word "theft" appears in ten statute dispositive. titles in Chapter 943. Statute titles are not 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 Wis. 2d 633, ¶46. important to Reading (2012); see This court Law: also has Kalal, 271 In fact, a statute's "title and headings are permissible indicators of meaning." Garner, meaning." The id. Antonin Scalia & Bryan A. Interpretation at 21-24 previously of Legal Texts ("Title-and-Headings concluded that 221 Canon"). "reference to [a statute's] title is appropriate" in statutory interpretation. State v. Dorsey, N.W.2d 158. 2018 "The WI 10, ¶30, titles . . . of part of the statutes." the 379 Wis. 2d 386, 906 statutes . . . are not 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 statute's title. The legislature adopts 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 N.W.2d 798 (1960). Imp. Co. v. PSC, 9 Wis. 2d 606, 618, 101 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. that the For example, in State v. Matasek, we concluded phrase "at the time 14 of sentencing" in Wis. Stat. Nos. 2017AP913-CR & 2017AP914-CR § 973.015 (2011-12) includes the disposition of probation.9 WI 27, ¶¶34, 39, 353 Wis. 2d 601, 846 N.W.2d 811. 2014 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 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. 9 Furthermore, 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)). 10 15 Nos. ¶30 In sum, statute titles significance in Wisconsin case law. 2017AP913-CR & 2017AP914-CR historically have had 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 exercised The court of appeals concluded that the State properly 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 The 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. 11 16 Nos. 2017AP913-CR & 2017AP914-CR design or in execution of a single deceptive scheme." Stat. § 971.36(3)(a); Lopez, 385 Wis. 2d 482, ¶14. Wis. We do not disturb that conclusion. IV. ¶33 We conclude that CONCLUSION "theft" under Wis. Stat. includes retail theft under Wis. Stat. § 943.50. § 971.36 We therefore conclude that the State has authority to charge multiple retail thefts under § 971.36(3). By the § 943.50 as one continuous offense pursuant to appeals is Thus, we affirm the court of appeals. Court.—The decision affirmed. 17 of the court of No. ¶34 REBECCA GRASSL BRADLEY, J. 2017AP913-CR & 2017AP914-CR.rgb (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. opinion's analysis because I cannot, however, join the lead 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 appears in the caption. before this court, nevertheless 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 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." 1 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. 2 1 No. State's motion. 2017AP913-CR & 2017AP914-CR.rgb As a result, the captions from Lopez's and Rodriguez's cases were joined into one consolidated caption. ¶36 appeals Only Lopez filed a petition for review of the court of 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 in the Although Attorney Tristan Breedlove represented Lopez court of appeals, Attorneys Susan Loshaw represent Lopez before this court. Alesia and Kelsey On June 10, 2019, Attorneys Alesia and Loshaw filed the first brief on behalf of Petitioner Lopez. response brief.3 On June 28, 2019, the State filed its 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 DefendantRespondent-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.) factual errors, Rodriguez's attorney's letter includes some both with respect to who represents Lopez (Breedlove was no longer Lopez's lawyer; Attorneys Alesia and The State's brief erroneously lists both Lopez and Rodriguez as petitioners. As noted, only Lopez is a petitioner. 3 2 No. 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." Rodriguez could not have filed a brief in this Clearly, 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. did ¶38 Although the lead opinion acknowledges that Rodriguez 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. Rodriguez's caption remained consolidated with Lopez's because once the cases are consolidated on appeal, the captions remain together unless a court orders otherwise. 4 See 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[.]" 5 3 No. ¶39 As far as the 2017AP913-CR & 2017AP914-CR.rgb reasoning underlying the court's decision, the lead opinion should have relied solely on the statutory "intent" text or instead elevating of the attempting importance ascertaining the meaning of a law. to of divine legislative statutory titles in 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." 20. Lead op., ¶¶19- 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). disregard what the legislature may have "intended" Courts 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 law . . . cannot govern statutory interpretation. of a 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 No. the text Antonin of the Scalia Interpretation intent statute is & of pure in Bryan Legal fiction 2017AP913-CR & 2017AP914-CR.rgb ascertaining A. Garner, Texts, 391-396 because its meaning. See Reading Law: The (2012) dozens if ("[C]ollective 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 natural person can have a state of mind such as intent. a 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. concludes Lead that the unambiguous. Lead stopped there. its analysis unwarranted op., ¶¶10, plain op., 12. The meaning of ¶12. The lead Wis. lead opinion Stat. opinion correctly § 971.36 should is have Instead, the lead opinion devotes nearly half of to a discussion significance of to statutory their role titles, in lending 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 No. 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 Farms, a doubt Inc. v. as to Town statutory of Leeds, meaning."); 149 Pulsfus Wis. 2d 797, Poultry 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 principles, lead but does opinion not recites apply them. these The longstanding 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. Antonin Scalia & Bryan A. Garner, Interpretation of Legal Texts, 221 (2012). 6 6 Reading Law: The No. 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., (Rebecca Grassl Bradley, J., concurring). 379 Wis. 2d 386, ¶73 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 interpretation. longstanding principles of statutory 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 7 Doing so would have ended 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158. 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). 8 7 No. 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 No. ¶46 DANIEL KELLY, J. 2017AP913-CR & 2017AP914-CR.dk (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 No. ¶47 ANN WALSH BRADLEY, J. 2017AP913-CR & 2017AP914-CR.awb (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" with is a word a precise meaning set forth in the statutes.4 ¶49 meaning Yet the the majority/lead legislature has 1 See Wis. Stat. § 943.205. 2 See Wis. Stat. § 943.74. 3 See Wis. Stat. § 943.50. 4 See Wis. Stat. § 943.20. opinion5 afforded ignores the term the precise and instead 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. 5 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 No. broadly stretches its application. interpretation § 971.36, of the employs a theft 2017AP913-CR & 2017AP914-CR.awb The majority/lead opinion's aggregation heretofore statute, unrecognized Wis. "plain Stat. 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. ¶52 Id. The value of the merchandise taken using this method ranged from $126.33 to $313.95 per occurrence, and the value of everything charging taken Lopez was and $1,452.12 Rodriguez in with total. seven Id. Rather separate than 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 No. 2017AP913-CR & 2017AP914-CR.awb of them with a single class I felony count. Stat. § 943.50(4)(a) & (bf) (providing Id., ¶5; see Wis. 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 retail Making no distinction between the crimes of theft and theft, authority for the an State cited aggregation of Wis. Stat. retail § 971.36(3)(a) theft charges. as 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. of appeals reversed. On appeal, the court 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 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. 6 3 No. 2017AP913-CR & 2017AP914-CR.awb II ¶55 case The as majority/lead presenting an opinion issue correctly of identifies statutory However, its analysis quickly goes astray. this interpretation. 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, aggregation statute, Wis. Stat. provides: § 971.36(3)(a), "[i]n any the theft of theft case 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 established statutory interpretation methodology. apply our 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. ¶58 See majority/lead op., ¶¶25-30. Although the majority/lead opinion declares over and over again that it is engaging in a "plain meaning" analysis, it apparently statutory fails to recognize interpretation that methodology, purports to do. 4 under it the cannot established do what it No. ¶59 The legislature has clearly declared that a title is not part of a statute. statute 2017AP913-CR & 2017AP914-CR.awb can meaning. never Wis. Stat. § 990.001(6). be Rather, used once to establish ambiguity is The title of a a statute's plain found, reference to statute's title is permissible to relieve ambiguity. a 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 . . . ." op., ¶26. Majority/lead 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 that is The majority/lead opinion's contention that something 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., statutory Dorsey, title is 379 a Wis. 2d 386, permissible ¶30 (explaining indicator of that meaning a when resolving ambiguity); Wisconsin Valley Imp. Co. v. Pub. Serv. 5 No. 2017AP913-CR & 2017AP914-CR.awb Comm'n, 9 Wis. 2d 606, 618, 101 N.W.2d 798 (1960) (same). more extensive majority/lead discussion opinion's of this analysis, fundamental see Justice flaw For a in Rebecca the 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 methodology. the established statutory interpretation 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 definitional meaning." ¶64 given their technical or special Id. 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 construed have a according peculiar to such meaning in meaning." the law Although shall Wis. be Stat. § 971.36 does not define "theft," a "peculiar meaning in the law" is not far away. crime of "theft," Namely, Wis. Stat. § 943.20 prohibits the setting commission for theft.7 7 forth five different modes of Accordingly, pursuant to § 990.01(1), Wisconsin Stat. § 943.20(1) provides: (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3): (continued) 6 No. 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 No. when the legislature refers to 2017AP913-CR & 2017AP914-CR.awb "theft" it refers to particular meaning set forth by the elements of § 943.20. the 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." "[i]n any case of theft" "case," not "theft." To explain, § 971.36(3) applies (emphasis added). "Any" modifies 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. near to Wis. Several other aggregation provisions are very 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 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 8 No. 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 demonstrate said that so. These the other legislature aggregation knew how to statutes 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 Stat. Is the § 971.36(3) majority/lead applies majority/lead op., ¶15. to opinion all for example, "theft that Wis. offenses?" See Are "theft offenses" those that have the word "theft" in their titles only? about, concluding the crimes of See id., ¶¶25-30. unauthorized use What 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. has its own specific aggregation provision. 9 See Each Wis. Stat. No. § 971.366. 2017AP913-CR & 2017AP914-CR.awb 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 majority/lead opinion came later.10 offenses" cited by the 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. § 971.36 in 1969. The substance of the statute did not change. L. 1969, c. 255, § 63. 9 Wisconsin Stat. § 943.45 ("Theft of telecommunications 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. 10 10 No. ¶72 It should be observed 2017AP913-CR & 2017AP914-CR.awb that under the majority/lead opinion's argument, retail theft charges could not have been aggregated under Wis. Stat. theft statute was § 971.36 at the time the retail enacted. Wisconsin Stat. § 943.50 originally titled "shoplifting," and not "retail theft." Wis. Stat. § 943.50 (1969-70).11 was See 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. See L. 1981, c. 270, § 2 (amending title of § 943.50 from "Shoplifting" to "Retail theft"). 11 11 No. 1 2017AP913-CR & 2017AP914-CR.awb
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