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State Supreme Court justices differ on what ‘theft’ means in Wisconsin

The justices on the state Supreme Court aren’t in agreement on how Wisconsin law defines theft and noted their differences in an opinion issued on Friday in a case involving repeated retail theft at a Walmart in Green County.

Prosecutors alleged two women stole about $1,500 in merchandise from Walmart in seven instances of alleged theft. Court documents said one women pretended to scan merchandise at a self-checkout stand while the other pretended to help her and actually voided the items. The state charged them with one felony count of retail theft, rather than seven separate misdemeanor charges.

The defense argued the legal definition of theft pertains only to the five types of theft described in Wis. Stat. § 943.20. Those are: theft of movable property; theft of money, negotiable securities, instruments, paper or negotiable writings; theft of property from one with a superior interest; theft by fraud; and theft by failure to return property after the expiration of a lease or rental agreement.

The Green County Circuit Court concluded the statute didn’t include retail theft in its definition of theft, and the state couldn’t consolidate the individual instances of alleged theft into one felony charge. The appellate court reversed the decision, and the state Supreme Court affirmed that ruling on Friday.

The concurring justices differed on interpretations of some of the statutes regarding theft. A footnote in the opinion reads, “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.”

The paragraphs talk about the statute titles, their meanings and their context.

In the dissenting opinion, Justices Ann Walsh Bradley and Rebecca Dallet said the legislature uses the word “theft” with a precise meaning. Bradley wrote “the majority/lead opinion ignores the precise meaning the legislature has afforded the term and instead broadly stretches its application.”


About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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