The ayes and noes were demanded and the vote was: ayes, 29; noes, 2; absent or not voting, 2; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Cowles, Darling, Decker, Ellis, Erpenbach, Farrow, S. Fitzgerald, Grobschmidt, Hansen, Harsdorf, Huelsman, Jauch, A. Lasee, Lazich, M. Meyer, Moore, Panzer, Plache, Robson, Roessler, Rosenzweig, Shibilski, Welch, Wirch and Zien - 29.
Noes - Senators George and Risser - 2.
Absent or not voting - Senators Moen and Schultz - 2.
Senator Baumgart, with unanimous consent, would like the staff comments from the Joint Legislative Council spread upon the journal.
They are as follows:
This memorandum is in response to your request for my analysis of the potential effect of Senate Substitute Amendment 1 to 2001 Senate Joint Resolution 2, on the ability of the state to continue its regulation of hunting, fishing, trapping and taking game. The Joint Resolution, as amended, proposes to create Wis. Const. art. I, s. 26, as follows: "The people have the right to fish, hunt, trap, and take game which shall be managed by law for public good."
You have observed that the constitutional amendment, if adopted, could be used as the basis for a legal challenge to the constitutionality of existing or future statutes or administrative rules that regulate fish and game. Your concern is the extent to which challenges to fish and game regulations could potentially succeed. You have asked whether I believe that only occasional regulations that are substantially more restrictive than those in place today are likely to be found unconstitutional, or whether I believe that there is a potential for successful challenge to many of the fish and game regulations currently in place.
I cannot give a definitive, black-and-white answer to your question, because the constitutional language is brief, and does not spell out the specific legal consequences of that language. Judicial interpretation may eventually supply the answer to your question, but the outcome of court cases is difficult to predict.
However, courts frequently resort to a variety of methods to interpret constitutional provisions, and a review of those methods can suggest the outcome of a challenge to hunting or fishing regulations based on the proposed right. I have reviewed a number of these methods of interpretation, and concluded that a successful challenge to hunting and fishing regulations would most likely relate to future regulations that are much more restrictive than those currently in place. I believe it is much less likely that the regulations in place today could be successfully challenged, and I have summarized my conclusion in this memorandum. My conclusion also appears to be consistent with the intent of the supporters of the constitutional amendment—I am unaware of any arguments in legislative debate on the constitutional amendment that it should be the vehicle for overturning any current fish and game regulations.
Throughout this memorandum, for convenience, I will refer to "hunt and fish" as a description of all activities that are subject to the proposed constitutional right. The substitute amendment has been recommended by the Senate Committee on Environmental Resources and is scheduled for debate in the Senate on March 6, 2001. This is the first consideration of the Joint Resolution.
For further information, you may wish to review my Wisconsin Legislative Council Information Memorandum 00-7, Laws on Hunting, Fishing and Trapping (December 28, 2000).
Current Regulation of Fish and Game
This section of the memorandum briefly describes the current law on hunting and fishing regulation. In particular, this discussion shows the great deference that courts currently give to state hunting and fishing regulation. This discussion is included in the memorandum because it is these legal principles that are potentially subject to change as a result of adopting the Joint Resolution.
The legal title to all wild animals is vested in the state by s. 29.011
29.011 Title to wild animals. (1) The legal title to, and the custody and protection of, all wild animals within this state is vested in the state for the purposes of regulating the enjoyment, use, disposition, and conservation of these wild animals.
(2) The legal title to a wild animal or carcass, taken or reduced to possession in violation of this chapter, remains in the state. The title to a wild animal or carcass, lawfully acquired, is subject to the condition that upon the violation of this chapter relating to the possession, use, giving, sale, barter or transportation of a wild animal or carcass by the owner, the ownership shall revert, as a result of the violation, to the state.
In other words, legal title to wild game only passes to an individual when the game is legally taken. Until that time, title remains with the state, and the state can confiscate any game unlawfully taken. This declaration of sovereignty is common to all 50 states and is the statutory expression of the legal principle that dates back to the early days of the English monarchy.
Although it is not so described in the statutes, the state's title to wild animals is often described in court cases as a trust for the benefit of the people. The Legislature, as the representative of the people, is charged with the authority to manage this trust. The Legislature has delegated the administrative responsibilities regarding wild animals primarily to the DNR. Most of the statutory authority of the DNR with respect to wild animals is contained in ch. 29
The basic authority of the DNR to regulate fish and game is set forth in s. 29.014 (1)
, Stats., which provides as follows:
29.014 (1) The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.
There are very few appellate court cases in Wisconsin regarding fish and game regulation. However, the Wisconsin case of Krenz v. Nichols, decided in 1928, is typical of the state court's approach to fish and game cases. In this case, the Wisconsin Supreme Court reviewed the state's regulation of muskrat farms. In its decision in favor of the state, the court gave great deference to the Legislature in its regulation of fish and game.
As trustee for the people, the state may conserve wild life and regulate or prohibit its taking in any reasonable way it may deem necessary for the public welfare, so long as it does not violate any organic law of the land.
. . .
It is now generally recognized that valuable wild animal life would soon be exterminated if the state should fail to conserve it and aid in its reproduction. Whenever the state has done so without trenching on private rights protected by the Constitution, such acts have been almost uniformly upheld.
. . .
Nearly every conceivable regulation for the propagation, conservation, taking, and disposal of fish and game has been upheld where no constitutional objections have stood in the way. Generally, courts have given very liberal construction to such statutes, to the end that the public welfare should be subserved. [222 N.W. 300, 303, 197 Wis. 394 (1928).]
Like statutes, constitutions are subject to judicial interpretation. Some of the tools used by courts in constitutional cases are known as "rules of interpretation." These rules are similar to the rules for statutory interpretation, but have other dimensions due to the constitutional context.
It is important to note that these are not "rules" in the conventional sense of that word. This is rather a term that lawyers use loosely to describe what could more accurately be described as an approach to analyzing the constitutional issue. Courts are not bound to follow these rules, although these rules are commonly applied in court decisions.
The express purpose of these rules of interpretation is to allow courts to implement the will of the drafters of a constitutional provision and the will of the voters who ratified it. To the extent that a court interprets a constitutional provision, it may choose not to follow the literal meaning of that provision. The flexibility that courts have when applying the rules of interpretation potentially puts legislators and electors in the position of voting for a constitutional amendment when it cannot be known how courts might ultimately decide a case arising under the proposed amendment.
The following are some examples of constitutional rules of interpretation:
Unless a provision is ambiguous, the plain meaning prevails. If there is no ambiguity, the court may choose not to consider any evidence outside of the constitutional language at issue. Senate Substitute Amendment 1 does not appear to be ambiguous, in the sense that it can be read in two different ways. However, Senate Substitute Amendment 1 is vague in the sense that it does not precisely define the scope of the right. This may lead a court to claim that it is ambiguous (because ambiguity and vagueness are frequently mixed), and resort thereafter to other evidence of meaning.
Avoid absurd results. The issue of absurd results often arises when fact situations are presented to the court that were not envisioned by the drafters, or when there is a conflict between constitutional provisions.
Extrinsic evidence related to adoption. Courts may review the legislative history surrounding adoption of a constitutional provision to determine what was intended by the Legislature.
Extrinsic evidence based on legislation on the same subject. Courts may look to legislation interpreting constitutional provisions or to legislation that is adopted contemporaneous to the constitutional provision to determine intent.
Comments on 2001 Senate Joint Resolution 2
The following are my observations regarding potential judicial interpretation of Senate Substitute Amendment 1 to Senate Joint Resolution 2. I have expressed my observations in terms of how the substitute amendment text or certain evidence related to the substitute amendment might affect the decision of a court. I have not assumed that a court might make an unexpected or unusual decision, although this is always a possibility.
Plain meaning of the substitute amendment. The substitute amendment clearly does not create an absolute right to hunt and fish. The "right to fish, hunt, trap and take game" is qualified in the substitute amendment by the language that follows: "which shall be managed by law for the public good." Although the substitute amendment creates a right, at the same time it directs the Legislature and its agent, the Department of Natural Resources, to manage that right. Therefore, the language in the substitute amendment clearly acknowledges that regulation of hunting, fishing, trapping and taking game will continue.
Absurd results. Courts refer to rights created in the constitution as "fundamental rights." A court, in reviewing legislation that restricts a fundamental right, will not apply a presumption of constitutionality to the legislation. The state, to defend the regulation, must show that the regulation is intended to achieve a compelling governmental purpose when there is not a less restrictive alternative available. This would make it very difficult for the state to defend most fish and game regulation. However, the substitute amendment requires management of the right for the public good. It would be an absurd result for a court to acknowledge the mandate to manage the right, and make it extremely difficult for the state to regulate. It would be more likely for a court to continue to apply a standard of reasonableness to any regulation, but with something less than the almost total deference given to such regulation under current law.
Additional absurd results. As noted in Krenz, the ongoing availability of wild animals to hunt and fish depends on state regulation to conserve the fish and game. It would be an absurd result for a court to hold that the substitute amendment negates a substantial amount of hunting and fishing regulation, which could have the effect of destroying the very activity that the substitute amendment was intended to protect.
Management is required for "the public good." This choice of language is important. The management authorized in Senate Substitute Amendment 1 is for the broad purpose of the "public good," which could include the conservation of wild animals, as well as any other issues of public health, safety or welfare. This language should allow courts to approve regulations that are based on social issues, rather than on conservation and game management. Social regulations are common in current fish and game regulations. For example, the nine-day deer gun season has no basis in deer herd management, but rather is based on tradition and public preference--a "social" regulation.
Judicial precedent. Courts strongly tend to follow precedent in constitutional cases. The adherence to precedent increases the certainty that is provided by law. The Krenz case, cited above, is part of the Wisconsin precedent in fish and game law. This precedent suggests that courts are likely to make only modest changes to the standards for review of fish and game regulation, in that a substantial degree of judicial deference continues to be consistent with Substitute Amendment 1.
Legislative history. I am unaware of any legislative history suggesting that the Joint Resolution is meant to restrict current fish and game regulation.
Contemporaneous legislation. The Legislature is not currently considering any legislation to substantially curtail current hunting or fishing regulations. Assembly Bill 98, introduced by Representative Wood, expands the opportunity to catch fish with a bow and arrow near a roadway, but that bill is narrowly focused. Senate Bill 45, introduced by Senator Moen, would prohibit the hunting of mourning doves. The outcome of legislative debate on Senate Bill 45 may suggest in part what is the Legislature's intent regarding the constitutional amendment.
If I can provide further information on this subject, please feel free to contact me.
Senate amendment 2 to Senate substitute amendment 1 to Senate Joint Resolution 2 offered by Senator Shibilski.
Senator Chvala, with unanimous consent, asked that Senate Joint Resolution 2 be placed at the foot of the calendar of March 6, 2001.
Senate Joint Resolution 22
Relating to: the life and public service of Daniel T. "Tom" Kelley.
Senate Joint Resolution 23
Relating to: the life and public service of Helmar A. Lewis.
Adopted by unanimous rising vote.
Senate Joint Resolution 24
Relating to: honoring and commending the devoted public service of Sue Ann Thompson.
Senate amendment 1 to Senate Joint Resolution 24 offered by Senator Erpenbach.
The question was: Adoption of Senate amendment 1 to Senate Joint Resolution 24?
The question was: Adoption of Senate Joint Resolution 24?
Senator Rosenzweig, with unanimous consent, asked to be added as a coauthor of Senate Joint Resolution 23.
Senator Rosenzweig, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 4.
Senator Rosenzweig, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 25.
Senator Rosenzweig, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 26.
Senator Rosenzweig, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 30.
Senator Rosenzweig, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 31.
Senator Robson, with unanimous consent, asked to be added as a coauthor of Senate Joint Resolution 24.
Senate Bill 6
Relating to: lamps emitting a flashing red or white light on bicycles and motor bicycles.
Read a second time.
Ordered to a third reading.
Senator Burke, with unanimous consent, asked that the bill be considered for final action at this time.
Read a third time and passed.
Senate Bill 10
Relating to: motorists approaching certain authorized emergency vehicles or tow trucks stopped near a highway and providing a penalty.
Read a second time.
Senate substitute amendment 1 to Senate Bill 10 offered by Senator Burke.
The question was: Adoption of Senate substitute amendment 1 to Senate Bill 10?
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.