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Animal cruelty includes wild animals

Hon. Paul Lundsten

Hon. Paul Lundsten

Two men who ran over wild deer with snowmobiles can be prosecuted under the state’s animal cruelty statute.

The Wisconsin Court of Appeals on Feb. 24 reversed the circuit court, which concluded that the statute does not apply to non-captive wild animals.

In January 2009, Rory and Robby Kuenzi were charged with five counts of mistreatment of animals under sec. 951.02. The complaint alleged that the Kuenzis, while operating snowmobiles in Waupaca County, came upon a herd of wild deer in a field and struck and ran over several of the deer. Four were killed and a fifth had to be euthanized.

The circuit court dismissed the charges, and the State appealed. In an opinion by Judge Paul Lundsten, the Court of Appeals reversed.

The statute provides, “No person may treat any animal, whether belonging to the person or another, in a cruel manner. This section does not prohibit bona fide experiments carried on for scientific research or normal and accepted veterinary practices.”

The definition of “animal” in sec. 951.01(1) includes all warm-blooded creatures.

The Kuenzis argued that sec. 951.02 does not apply to wild animals, because Chapters 169 and 29 regulate captive wild animals and non-captive wild animals, respectively. Those chapters provide the exclusive laws governing those categories of animals, the Kuenzis argued.

But the court disagreed for three reasons.

First, it found that the definition of “animal” in Chapter 951 is broad enough to include wild animals.

Second, the court found that Chapter 29 does not govern non-captive wild animals generally, but rather “the taking of wild animals.”

Third, the court found that applying sec. 951.02 to non-captive wild animals would not undermine the goals of Chapter 29.

The court wrote, “there is no inconsistency in having several specific prohibitions directed at domesticated and captive wild animals and also a general prohibition on inflicting ‘unnecessary and excessive pain or suffering or unjustifiable injury or death’ on all animals.”

The court acknowledged cases from other jurisdictions that limit animal cruelty laws to domestic animals. But the court found them irrelevant because they employed different statutory language.

The court also acknowledged that, in U.S. v. Stevens, 130 S.Ct. 1577 (2010), Justice Alito’s dissent noted that “state laws relating to the humane treatment of wildlife … are virtually non-existent,” and cited Wisconsin as an example.

But the court rejected this argument as well, noting that Justice Alito’s dissent provides no meaningful analysis of the Wisconsin laws.

Returning to the Kuenzis’ argument that their prosecution would controvert Chapter 29, the court found, “the Kuenzis do not identify a provision in chapter 29 that allows persons to pursue and kill wild animals any way they choose. In sum, the Kuenzis have failed to explain how their prosecution controverts in any manner regulations contained in, or promulgated under, chapter 29.”

Accordingly, the court reversed the dismissal and remanded with directions to reinstate the charges.

Analysis

The court’s conclusion that permitting the prosecutions would not circumvent Chapter 29 is well-reasoned.

Nevertheless, defendants charged with animal cruelty, where the animal is wild, should continue to contest the charges based on the plain language of the statute.

The statute provides, “No person may treat any animal, WHETHER BELONGING TO THE PERSON OR ANOTHER, in a cruel manner. This section does not prohibit bona fide experiments carried on for scientific research or normal and accepted veterinary practices (emphasis added).”

The only reasonable interpretation of the emphasized clause is that, in order for the statute to apply, the animal has to be owned by someone.

The court’s interpretation effectively writes this clause out of the statute.

If this clause were not part of the statute, the court’s holding would be correct. Or if this clause said, “whether belonging to the person, or another, or no one,” the court’s holding would be correct.

But in light of the actual language, the statute can only be applied if the animal at issue belongs to some person. Because wild deer do not belong to anyone, the court should have affirmed the dismissal of the charges.

Defense attorneys making this argument in future cases will not be able to prevail in the circuit court or Court of Appeals, if this case is published as recommended.

Nevertheless, this argument was neither raised by the defendants nor addressed by the Court of Appeals. So, the argument is not frivolous and it should be raised in order to preserve it for potential review in the Wisconsin Supreme Court.

What the Court Held

Case: State v. Kuenzi, Nos. 2009AP1827-CR & 2009AP1828-CR

Issue: Does the animal cruelty statute, sec. 951.02, apply to non-captive wild animals?

Holding: Yes. There is no inconsistency in having specific prohibitions directed at domesticated and captive wild animals and also a general prohibition on cruelty to all animals.

Attorneys: For Plaintiff: Katherine Desmond Lloyd, Madison; For Defendants: Jefren E. Olsen, Madison; Thomas W. Johnson, Joshua D. Christianson, New London.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

6 comments

  1. The state acts as if it owns all the wildlife in the state. It makes decisions regarding the use and management of wildlife that would appear to be decisions that could be made only by owners.

  2. I do not practice criminal law but it only took me a minute to see the problem with this case. Even though the defendants are sick and twisted individuals who deserve to be punished, for the Court of Appeals to simply skip over the “belonging to” clause in this statute is incredible. That the defendants did not raise it is equally puzzling.

    While some believe that all wild animals are “owned” by the people, if so, that would render the language in the statute superfluous. Because these defendants are fiends people will applaud this decision. However, for the Court of Appeals to construe this statute and not deal with this clause is simply wrong. It is a result-oriented decision that makes people feel good but is troubling as a matter of statutory construction.

  3. I wouldn’t fault the court too much, nick. I’ve read the briefs, and the issue wasn’t raised.

  4. Dist IV is a good court. But I read that decision and the court was engaged in statutory construction. Even if the parties – and the trial court – inexplicably failed to raise an issue that sticks out like a sore thumb, the Court had the obligation to explain why that clause did not apply. Well, some bad guys will be punished. They certainly deserve to be. What they did was very sick.

  5. Not an attorney – but how much simpler does an intent have to be that the people do not condone or will allow cruelty to animals, inasmuch as those who persist in being cruel to animals usually and ultimately become anti-social and abuse women, children and socially lower citizens. Not to mention continue to abuse animals. And though the statutes are not constructed to protect animals per se, they are through punishment of offenders, doing so. Search out a case that clarifies the problem – do it for free. Puts your cards on the table boys…

  6. Jan, I did put my cards on the table. First, the statute most certainly is constucted to protect animals per se. The problem is that, under the plain language of the statute, it only protects domesticated animals, not wild ones. If the legislature wants to protect wild animals from cruelty, that is their right. But since it has not done so, these men can’t be convicted of violating this particular statute.

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