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Court of appeals gives effect to previously-ignored clause in restitution statute

State v. Sara L. Steppke, 2017AP1683, 4/2/18, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)

Steppke was ordered to pay restitution for a security system her employer installed after she stole $3,000 worth of flea and tick product. The system cost over $16,000–or more than five times the value of what she took. Just a few months ago, a dissenting court of appeals judge lamented that the case law had gotten way, way ahead of the text of the restitution statute itself–giving rise to “entirely unjustifiable” results. One can hope this decision marks the beginning of a return to the plain language of the statute.

Previous cases have held, in essence, that when a victim’s sense of insecurity or fear stemming from a theft or burglary inspires installation of a security system, the expense of that system is “caused” by the crime, and hence recoverable as restitution from the defendant. What’s more, the courts have allowed restitution even where the system was purchased before the crime of conviction, introducing, apparently for the first time, relativistic notions of time to our state’s jurisprudence. See, e.g.State v. Queever, 2016 WI App 87, ¶21, 372 Wis. 2d 388, 887 N.W.2d 912.

What those cases did not consider, though, is that the statute limits restitution to damages “which could be recovered in a civil action.” Wis. Stat. § 973.20(5)(a). Steppke argues that her crime was what would be known in the civil law as the tort of conversion–and damages for conversion are limited to the value of the property taken plus interest. In other words, the victim of such a tort would not be able to recover for a security system.

It’s a nifty argument–seemingly novel, but firmly supported by the plain language of the statute. It’s also an argument the state did not see fit to address, leading the court to find it conceded:

In its response brief the State asserts in a wholly conclusory fashion that Steppke’s arguments based on the “recovered in a civil action” limitation is “spurious” and that “[w]hen the need for a new lock or a new/improved security system is occasioned because of the commission of a crime, a broad and liberal construction of the restitution statute must include compensation for such expenditures.” However, the State does not address or refute in any developed manner, or cite any legal authority contrary to, either of Steppke’s arguments relating to the “recovered in a civil action” limitation in WIS. STAT. § 973.20(5)(a). More specifically, the State does not explain how Steppke’s plain language interpretation of the statute is incorrect, or challenge Steppke’s application of that plain language interpretation by identifying any civil action in which V.V.’s costs of the security system upgrades would be recoverable. Accordingly, I deem the State to concede that Steppke’s arguments are correct. See Charolais Breeding Ranches, Ltd. v. FPC Securities Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“Respondents on appeal cannot complain if propositions of appellants are taken as confessed which they do not undertake to refute.” (quoted source omitted)).


{ 4 comments… add one }
  • Christian Thomas March 5, 2018, 8:51 am

    Is there a way we can we use this to our clients’ benefit in cases that are not “conversion” by an employee?

  • admin March 5, 2018, 9:53 am

    It would seem so, depending on the specific offense at issue, by finding an analogous tort or maybe occasionally contract action. It’s important to note that this is only one subsection of the restitution statue; others governing e.g. medical expenses don’t have the “civil action” limitation.

  • Jeremiah March 5, 2018, 10:39 pm

    In short, this decision revives defense attorneys’ incentive to make sure that they understand the law of torts, or more particularly, the law of damages as it relates to torts, for use in resisting the State’s increasingly absurd restitution demands. And I have always found it to be perfectly fair that an AV not get anything more in terms of special damages than said AV would get in a civil action. They get what they would get in a civil action without having to pay attorney’s fees or even costs, which is advantage enough without throwing in items of damages not known to law.

  • Benbow Cheesman March 30, 2018, 10:58 am

    Another example of that four-letter word one never wants to hear from one’s pilot, surgeon or attorney: “Oops:

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