Dec. 2, 2019 – Retail theft under $500 is a misdemeanor. Recently, the state supreme court ruled that a statute allowing multiple “thefts” to be aggregated applies to “retail theft” such that multiple misdemeanor retail thefts can be aggregated into a felony.

In 2017, Autumn Lopez and Amy Rodriguez engaged in a retail theft scheme at Walmart, where Lopez worked. Lopez would pretend to assist Rodriguez in the self-checkout line, but would not actually scan the items or would void scanned items.

Over the course of several weeks, the state alleged the Lopez-Rodriguez duo engaged in seven retail thefts through the scheme. Individually, per theft, the items were valued under $500. In the aggregate, the value of stolen merchandise was more than $1,400.

If charged as seven separate retail thefts, each would be misdemeanors (under $500). But the prosecutor aggregated the thefts and charged both with a Class I felony, which applies to retail thefts of between $500 and $5,000, under Wis. Stat. section 943.50.

The defendants argued that the prosecutor could not aggregate the charges. But the prosecutor pointed to section 971.36, which says in any case involving more than one “theft,” all thefts may be prosecuted as a single crime under certain circumstances.

Does that Include Retail Theft?

Rodriguez and Lopez argued the prosecutor’s statutory authority to aggregate “thefts” does not apply to “retail thefts.” The circuit court agreed, dismissing the felony cases.

But a state appeals court reversed, concluding that multiple retail thefts may be aggregated as one crime. In State v. Lopez, 29 WI 101 (Nov. 27, 2019), the Wisconsin Supreme Court ruled (5-2) that multiple retail thefts can be aggregated into one crime.

“Theft” under section 971.36 – the aggregation statute – includes retail theft under section 943.50, Justice Annette Ziegler noted in a lead opinion.

“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).”

Justice Ziegler engaged in statutory interpretation and noted that section 971.36 – allowing multiple separate thefts to be charged as one crime – does not include a definition of “theft” but the provision is broad and governs multiple types of theft.

“The plain language of § 971.36(3) applies to any case of theft involving more than one theft,” Justice Ziegler wrote. The lead opinion rejected the argument that the only “theft” crimes that can be aggregated are ones under Wis. Stat. section 943.20.

That provision spells out five modes for committing theft. Retail theft is not specifically included, because that type of theft is governed by section 943.50. But the lead opinion concluded that, for purposes of aggregating thefts, retail theft is not treated differently.

“Lopez argues that because retail theft does not have its own aggregation statute the legislature did not intend retail theft to be aggregated. We disagree,” Ziegler wrote.

“The fact that other aggregation statutes exist does not demonstrate that the legislature excluded retail theft from aggregation under Wis. Stat. § 971.36.”

The lead opinion also addressed the parties’ argument that the “statute titles are permissive indicators of meaning in this case.”

Lopez argued that section 943.20 is specifically titled “theft” and thus the aggregation statute only applies to the types of theft noted in section 943.20, not “retail theft.”

Justice Ziegler noted that the statute’s title “is not part of the statute,” but “the title may be used to confirm a statute’s meaning.” 

“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,” Justice Ziegler wrote. Other justices, in separate writings, pushed back on the lead opinion’s use of statutory titles to inform its analysis, noted below.

Concurrence and Dissent

Justice Rebecca Bradley wrote a concurring opinion, and Justice Daniel Kelly joined – with an exception. Justice R. Bradley agreed that, under a plain meaning analysis, the seven misdemeanor retail thefts could be joined into one felony crime.

But Justice R. Bradley said she could not “join the lead opinion’s analysis because it improperly relies on sources beyond the unambiguous text of the statute we interpret.”

She noted that “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,” and discussed “the danger of employing statutory titles as part of the court’s reasoning.”

On that point, Justice Kelly departed with Justice R. Bradley but otherwise joined her separate plain meaning analysis of the relevant statutes.

Justice R. Bradley also questioned why Rodriguez was listed in the caption of the case, and allowed to join Lopez’s arguments, even though Rodriguez did not appeal to the Wisconsin Supreme Court – only Lopez did.

She said non-parties cannot join a party’s arguments, as a matter of appellate procedure. “By allowing a non-party to ‘join’ a petitioner’s’ argument,’ the lead opinion suggests the rules of appellate procedure need not be followed,” R. Bradley wrote.

Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Rebecca Dallet, concluding the legislature placed significance on the term “theft” in the aggregation statute that allows prosecutors to aggregate multiple instances of “theft.”

“When the legislature writes the word ‘theft’ in a statute, it means theft and only theft,” Justice Bradley wrote. “It does not mean ‘theft of trade secrets’, theft of farm-raised fish’ or ‘retail theft.’” She said “theft” is a word with a precise meaning in the statutes.

“Yet the majority/lead opinion ignores the precise meaning the legislature has afforded the term and instead broadly stretches its application.”

Justice A.W. Bradley argued that the lead opinion failed to distinguish between “retail theft” and “theft,” even though the statutes clearly distinguish them. Like the dissent, A.W. Bradley also questioned the lead opinion’s reliance on statutory titles.

“[T]he majority/lead opinion’s use of title as part of a plain meaning statutory analysis finds no mooring in the law,” Justice A.W. Bradley wrote.