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§ 951.02, Animal Cruelty, in rel. to Ch. 29 Hunting Restrictions

State v. Robby D. Kuenzi, 2011 WI App 30; for Rory Kuenzi: Thomas W. Johnson; for Robby Kuenzi: Jefren E. Olsen, SPD, Madison Appellate; case activity

Animal Cruelty, § 951.02

Cruel mistreatment of non-captive wild animals – in this case, deer intentionally rammed by snowmobiles, concededly cruel acts – may be prosecuted under § 951.02, whether or not the acts are specifically regulated by chapter 29 hunting restrictions. Section 951.02 prohibits “cruel” treatment of “any animal,” which on its face includes the wild deer at issue in this case.  The question thus becomes whether prosecution under § 951.02 “controverts” laws regulating the taking of non-captive wild animals under chapter 29, something barred by § 951.015(1).

¶37      If the legislature intended a blanket prohibition on applying the cruel mistreatment statute to the taking of wild animals, it could have done so with simple direct wording, such as this:  “This chapter may not be applied to the taking of wild animals.”  The legislature did not.  To the contrary, as we explain in paragraph 19 above, the “controverting” limitation plainly contemplates that chapter 951 may be applied to the taking of wild animals.  This is plain because the limitation in § 951.015(1) only prohibits interpretations—i.e., applications of chapter 951—to “the taking of wild animals” when such interpretations/applications controvert chapter 29.

¶38      In closing, we observe more generally that the Kuenzis’ assertions of conflicts between applying the cruel mistreatment statute to their conduct and chapter 29 are all abstract.  The Kuenzis do not, for example, argue that there is a conflict because there is a provision in chapter 29 that authorizes the use of a motorized vehicle to kill a wild animal.[5] Similarly, 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.

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