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SCOW: 7 misdemeanor retail thefts can =1 felony theft

State v. Autumn Marie Love Lopez & State v. Amy J. Rodriguez, 2019 WI 101, 11/27/19, affirming a published court of appeals decision; case activity (including briefs)

This appeal asked whether the State may charge multiple acts of misdemeanor retail theft under §943.50  as one felony under §971.36(3)(a).  The justices split 3-2-2. Five of them answered “yes,” but did not fully agree on a rationale for that mandate.  The justices also disagreed over the role titles play in statutory construction and over whether both appellants in a consolidated appeal must file a petition for review.

Where 5 justices agree. Section 943. 50 is entitled “Retail theft; theft of services.” It provides that a person who engages in prescribed acts of retail theft is guilty of a Class A misdemeanor, if the value if the merchandise value does not exceed $500 or a Class I felony if the  merchandise value is greater than $500 but less than $5,000. Lopez and Rodriguez allegedly engaged in 7 retail thefts worth less that $500 per occurrence but totaling $1,452.12. So the statute suggests that they could be prosecuted for 7 misdemeanor retail thefts.

However, §971.36 is entitled “Theft; pleading and evidence; subsequent prosecutions.” It provides that in any case of theft involving more than one theft, all thefts may be prosecuted as a single crime [if various factors are present.] Wis. Stat. §971.36(3). Although §971.36 does not refer to the retail theft statute, five justices seem to agree that it “applies in any case of theft involving more than one theft . . . ” Opinion, ¶20. (Emphasis supplied).

The rift among the 5. Justice Ziegler wrote the the majority/lead opinion, and Roggensack and Hagedorn joined her. She devoted several paragraphs to the argument that courts may consider the titles as part of a “plain language of the statute” analysis. Ziegler, ¶¶25-31.

R.G. Bradley, joined by Kelly (except for footnote 2) took issue with Ziegler’s reliance on statutory titles in her rationale. Both sides spent a lot of time asking WWGSD (What Would Garner & Scalia Do?). Genuflecting 5 times to the treatise, Reading Law: The Interpretation of Legal Texts, R.G. Bradley argued the Ziegler should have stopped her analysis at that the plain language. Titles are not a part of a statute. By discussing them, Ziegler lent “unwarranted significance to their role in statutory interpretation.” R.G. Bradley, ¶40.

Oddly, Kelly joined Ziegler’s opinion except for the ¶¶25-31 discussion about use of titles in statutory construction. He also joined R.G. Bradley’s concurrence except for the parts where she says she does not join the lead opinion. Kelly, ¶46.

The dissent. Justice A.W. Bradley, joined by Dallet, agreed that titles are not part of a statute and cannot be used to establish a statute’s plain meaning. Wis. Stat. §990.001(6). A.W. Bradley, ¶¶59-62.  However, she argued that when the legislature used the word “theft” in §971.36(3), it was referring only to “theft” as defined in §943.20. It was not referring to “retail theft.” When the legislature wanted to authorize the aggregation of certain types of theft crimes it knew how to do that. For retail theft, it chose not to. . Id. ¶¶65-67.

R.G. Bradley took issue with the Ziegler opinion’s use of a consolidated caption in this case. The court of appeals consolidated State v. Lopez and State v. Rodriguez, but Rodriguez did not file a petition for review. Instead she wrote a letter to the SCOW stating that she joined Lopez’s arguments. R.G. Bradley accused Ziegler of allowing a non-party to skirt the rules of appellate procedure and saud that this “suggests that the rules of appellate procedure need not be followed.” R.G. Bradley, ¶38.

Seriously? Where was that indignation in State v. Jeffrey Denny when the State neglected to preserve a critical issue in its petition for review and the majority decided the point for the State anyway?


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