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.
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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.
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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.
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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.
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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.
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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.
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Legislative history. I am unaware of any legislative history suggesting that the Joint Resolution is meant to restrict current fish and game regulation.
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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.
Read.
Adopted.
Senate Joint Resolution 23
Relating to: the life and public service of Helmar A. Lewis.
Read.
Adopted by unanimous rising vote.
Senate Joint Resolution 24
Relating to: honoring and commending the devoted public service of Sue Ann Thompson.
Read.
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?
Adopted.
The question was: Adoption of Senate Joint Resolution 24?
Adopted.
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.
Senate
Bill 6
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?
Adopted.
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 10
Read a third time and passed.
Senate Bill 20
Relating to: universal service fund surcharges on customer bills by telecommunications providers.
Read a second time.
Senator Chvala, with unanimous consent, asked that Senate Bill 20 be referred to joint committee on Information Policy and Technology.
Senate Bill 21
Relating to: universal service fund surcharges on customer bills by commercial mobile radio service providers.
Read a second time.
Senator Chvala, with unanimous consent, asked that Senate Bill 21 be referred to joint committee on Information Policy and Technology.
Senate Bill 40
Relating to: prohibiting certain telephone solicitations, requiring the registration of telephone solicitors, requiring the exercise of rule-making authority, making an appropriation, and providing penalties.
Read a second time.
Senator Roessler, with unanimous consent, asked to be withdrawn as a coauthor of Senate Bill
40.
Senator Roessler, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 27.
Senator Roessler, with unanimous consent, asked to be added as a coauthor of Senate Bill 14.
Senator Burke, with unanimous consent, asked that Senate Bill 40 be referred to the Joint Committee on Finance.
Senate Bill 58
Relating to: the regulation of snowmobile rail crossings.
Read a second time.
Senator Zien, with unanimous consent, asked to be added as a coauthor of Senate Bill 10.
Senator Darling, with unanimous consent, asked to be added as a coauthor of Senate Joint Resolution 26.
Senator Darling, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 31.
Senator Hansen, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 4.
Senator Hansen, with unanimous consent, asked to be added as a cosponsor of Assembly Joint Resolution 26.
Ordered to a third reading.
Senator Burke, with unanimous consent, asked that the bill be considered for final action at this time.
Senate
Bill 58
Read a third time and passed.
Assembly Joint Resolution 4
Relating to: commending Dick Bennett on his career, accomplishments, and contributions to Wisconsin basketball.
Read.
Concurred in.
Assembly Joint Resolution 25
Relating to: the life and public service of Joseph L. Looby.
Read.
Concurred in by unanimous rising vote.
