State of Wisconsin
Ethics Board
May 8, 2001
The Honorable, The Senate:
The following lobbyists have been authorized to act on behalf of the organizations set opposite their names.
For more detailed information about these lobbyists and organizations and a complete list of organizations and people authorized to lobby the 2001 session of the legislature, visit the Ethics Board's web site at
http://ethics.state.wi.us/
Beil, Mickey Dane County
Bloom, David M Wisconsin State Fire Chiefs Association
Blumenfeld, Michael United Cerebral Palsy of Wisconsin
Brozek, Michael National Safety Council
Carey, Ray Racine Area Manufacturers and Commerce
Christianson, Peter C Wisconsin State Fire Chiefs Association
Dickert, John T Racine Area Manufacturers and Commerce
Elias, Nathan Metropolitan Milwaukee Association of Commerce
Emons, Brent Iron Workers Local Union #8
Goss, Patrick Metropolitan Milwaukee Association of Commerce
Linton, Barbara National Safety Council
Matthews, John Racine Area Manufacturers and Commerce
McDowell, Kelly Wisconsin Veterinary Medical Association
Ramey, Melanie Hospice Organization and Palliative Experts of Wisconsin (HOPE), The
Schreiber, Martin Wisconsin Veterinary Medical Association
Widder, Theodore C Allstate Insurance Company
Also available from the Wisconsin Ethics Board are reports identifying the amount and value of time state agencies have spent to affect legislative action and reports of expenditures for lobbying activities filed by organizations that employ lobbyists.
Sincerely,
Roth Judd
Director
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Senator Robson, with unanimous consent, asked that the Senate recess until 1:03 P.M.
10:22 A.M.
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1:03 P.M.
The Senate reconvened.
Senator Risser in the chair.
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Senator Chvala, with unanimous consent, asked that the appointment of DAHLBERG, PHILIP J., be laid on the table.
Senator Chvala, with unanimous consent, asked that the appointment of Margaret Farrow be placed at the foot of the calendar of May 8, 2001.
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By John A. Scocos, chief clerk.
Mr. President:
I am directed to inform you that the Assembly has passed and asks concurrence in:
Assembly Bill 196
Assembly Bill 222
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Assembly Bill
196
Relating to: the disclosure of public library records.
By Representatives Albers, Miller, Kestell, Grothman, Jeskewitz, Ott, Leibham, Powers, Hahn, Vrakas, Gronemus, Petrowski, Nass, Pettis, Krawczyk, Stone, Gundrum and Owens; cosponsored by Senators Roessler, S. Fitzgerald, Lazich, Farrow, A. Lasee and Schultz.
Read first time and referred to committee on Privacy, Electronic Commerce and Financial Institutions.
Assembly Bill
222
Relating to: changing the name of a minor.
By Representatives Foti, J. Lehman, McCormick, J. Fitzgerald, Huebsch, Hundertmark, Krawczyk, Kreuser, D. Meyer, Montgomery, Owens, Pettis, Stone, Sykora, Townsend, Wade and La Fave; cosponsored by Senators Wirch, Darling, Roessler, Rosenzweig and Schultz.
Read first time and referred to committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.
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Senate Joint Resolution 2
Relating to: the right to fish, hunt, trap, and take game (first consideration).
Read.
Senator Baumgart, with unanimous consent, asked that the staff memorandum on Assembly substitute amendment 1 to Senate Joint Resolution 2 from the Joint Legislative Council be spread upon the Journal.
TO: SENATOR JAMES BAUMGART
FROM: Mark C. Patronsky, Senior Staff Attorney
RE: Constitutional Right to Fish, Hunt, Trap, and Take Game: Potential Judicial Interpretation
DATE: May 2, 2001
Introduction
S188
This memorandum is in response to your request for my analysis of the potential effect of 2001 Senate Joint Resolution 2, as affected by Assembly Substitute Amendment 1, on the ability of the state to continue its regulation of fishing, hunting, 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 subject only to reasonable restrictions as prescribed by law." This is the same language as contained in Senate Joint Resolution 2, as introduced, and prior to the adoption of Senate Substitute Amendment 1.
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 legal challenges to fish and game regulations could succeed. You have asked whether the Joint Resolution would support a challenge only to regulations that are substantially more restrictive than those now in force, or whether there is a potential for successful challenge to many of the ordinary, commonly accepted fish and game regulations that are currently in place.
It is impossible to give a definitive 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 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 public testimony or arguments in legislative debate on the constitutional amendment that indicate an intent that it should be a 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. For further information, you may wish to review 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 broad grant of statutory authority for hunting and fishing regulation, as well as the great deference that courts currently give to such regulations. 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 declared to be in the state by s.
29.011, Stats.:
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 Department of Natural Resources (DNR). Most of the statutory authority of the DNR with respect to wild animals is contained in ch.
29, Stats., and DNR has implemented its authority by adopting extensive administrative rules.
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).]
Constitutional Interpretation
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.
