The District IV Court of Appeals reinstated felony charges against Rory and Robby Kuenzi Thursday, Feb. 24.
The rural Weyauwega brothers, along with Nicholas D. Hermes, were accused of running down and killing deer with their snowmobiles on Jan. 9, 2009, in the town of Lind.
The three men were charged with felony cruelty to animals under Wisconsin Statutes Chapter 951. They were also cited for hunting violations.
Robby Kuenzi’s attorney, Tom Johnson, argued before Waupaca County Circuit Court Judge John Hoffmann that his client could not be charged with mistreatment of animals because Chapter 951 also says that the animal cruelty law cannot be applied to hunting as defined by Chapter 29. And Chapter 29 broadly defines hunting to include “shooting, shooting at, pursuing, taking, capturing or killing or attempting to capture or kill any wild animal.”
Rory Kuenzi’s attorney made a similar argument. Both Hoffmann and Judge Philip Kirk, who was presiding over Rory Kuenzi’s case, dismissed the felony charges against the Kuenzis. The state appealed the circuit court decisions.
Writing on behalf of the appellate court, Judge Paul Lundsten noted that the Kuenzis did not claim that their alleged behavior did not cause “unnecessary and excessive pain or suffering or unjustifiable injury or death.”
“The Kuenzis’ primary argument is that the animal cruelty statute cannot be applied to their actions, no matter how cruel or senseless, because they were engaged in taking ‘wild animals’ and the taking of noncaptive wild animals is a hunting activity regulated by Wisconsin Statute Chapter 29. In the Kuenzis’ view, Chapter 29, and only that chapter, regulates hunting and, therefore, they may take a wild animal by any means without fear of prosecution so long as their means are not specifically prohibited by Chapter 29.”
Lundsten described in detail the Kuenzis alleged behavior. He wrote that a Waupaca County sheriff’s deputy found four dead deer and a fifth deer that had to be euthanized. The deer had broken legs and a fifth had crawled some distance before dying.
“Rory and Robby Kuenzi were each operating snowmobiles on a trail when they came across a group of thirty or forty deer in a field. The Kuenzis left the snowmobile trail and began chasing the deer. They struck and ran over several of the deer. Robby Kuenzi rode on top of one deer and did a ‘burn out,’ causing the deer’s abdomen to rip open. Rory Kuenzi, with his snowmobile, struck another deer in its back legs, knocking it down. The two men, acting in concert, held that deer down, tied a strap around its neck, dragged it to a wooded area, and tied it, still alive, to a tree. They apparently planned to retrieve the deer at some point, but never returned. Later, having moved on to a different location, Rory Kuenzi struck and killed another deer. This time, Rory field-dressed the deer and took it with him,” Lundsten wrote.
The appeals court said that the cruel mistreatment of animals must be viewed in the context of common hunting practices. The decision took issue with the defense argument that Chapter 951 prohibits the state from prosecuting hunters for mistreating wild animals “no matter how cruel and senseless” their methods.
“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,” the decision said.
The Court of Appeals ordered the circuit court to reinstate the felony charges and move forward with the cases against Rory and Robby Kuenzi. The case against Hermes had been put on hold until the appeals court had reached a decision.