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COA upholds restitution to corporation for threats to employees

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability to pay.

Regarding the first argument, the court notes that “victim,” while not defined in the restitution statute (Wis. Stat. § 973.20) is defined in Wis. Stat. § 950.02(4)(a) as “a person against whom a crime has been committed.” This is not helpful at all; case law marginally less unhelpfully posits that a victim is someone “against whom a crime was directed as opposed to a person or entity who indirectly incurred damages from the defendant’s criminal conduct.” (¶16).

Wright argues that the “victims” of his conduct were the human beings toward whom he directed his threats and invective, not the corporation that employed them (and hired the security company). The court holds, though, that his conduct could “provoke a disturbance in the corporation’s perspective.” (Corporations are “persons” under Wis. Stat. § 990.01(26); query whether that necessarily endows them with “perspective.”) The court goes on:

in graphic and violent terms that escalated with each incident, Wright threatened to kill or otherwise harm employees who worked at Christmas Mountain in Sauk County. As a result, Wright’s crimes were also committed against Bluegreen Vacations because, as the employer and the owner of the premises, Bluegreen Vacations should be able to have its employees safe and not distracted or frightened by Wright’s illegal conduct. The actions taken by Bluegreen Vacations to retain armed guards in order to mitigate the risk of Wright causing harm to its employees at Christmas Mountain in Sauk County is a direct consequence of Wright’s criminal conduct. That alone is enough to determine that Bluegreen Vacations is also a victim of Wright’s crimes for purposes of restitution.

(¶19).

Wright also argued that the expense of the armed guards was not a “special damage[] … which could be recovered in a civil action” against him for his conduct, and thus was not eligible for restitution under Wis. Stat. § 973.20(5)(a). The court of appeals disagrees, holding that the corporation could recover for the tort of private nuisance by intentional conduct. (¶¶24-29).

Finally, Wright asserts that the circuit court failed, in setting the amount of the award, to consider his ability to pay, as required by Wis. Stat. § 973.20(13)(a). Wright has been unable to find work since he was fired, and his sole income is social security, which brings him $11,520 per year. The circuit court simply noted that Wright couldn’t pay the $14,755 up front and said it would establish a payment plan of $100 per month, or $1,200 per year.

The state and the court of appeals agree that the trial court’s ability-to-pay analysis was “not robust.” (¶35). But, of course, “not robust” is good enough for the court of appeals, which explains that squeezing Wright’s effective income down to $10,000 per year will actually be good for him:

The $100-per-month payments works toward the rehabilitation of Wright because it makes it more likely that he will now understand that his criminal conduct has real, adverse consequences for others, and he has to pay (in this case, literally) for that conduct. That makes it less likely that he will offend again and, in turn, it is more likely that he will be rehabilitated.

(¶37).

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