I know Judge Moeser and think he's probably one of the best judges in Dane County. He is known for being frank when he thinks the legislature has screwed something up, either by inaction (which appears to be the case here, though I admit I haven't read the briefs and studied the law) or enacting a new law for PR only with no thought on the practical application of that law in circuit courts. When he concludes that an issue in a case is one that is best decided by the legislature, not a circuit court judge, he throws the blame where it should rightly be. In this respect, he acts with a great deal of judicial restraint.
"The Legislature is presumed to know what it is doing, and the removal of mourning doves is evidence that the Legislature did not intend to have mourning doves included in the classification of birds for which the DNR could establish a hunting season," the judge wrote.
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Keep in mind that this is only a temporary ruling until the court can hold an evidentiary hearing. At that time, hopefully the WI DOJ will present evidence as to why the legislature's failure to block the DNR's Natural Resources Board vote on the hunt indicates their intent to allow it. Remember that courts can (or should) only consider evidence presented on the record. Sometimes extremely relevant evidence is not able to be fully presented by a party until an evidentiary hearing is held.
The DNR argued that the Legislature's failure to block the dove hunt translated into legislative intent to establish a dove hunting season. But Moeser was reluctant to read too much into the Legislature's inaction.
"That is a leap this court is not prepared to take," he wrote. "There are numerous reasons why a Legislature may choose not to act, and there is no way for this court on the record before it to divine why the Legislature took no action."
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I certainly do not agree with the "Wisconsin Citizens Concerned for Cranes and Doves" and their agenda. I am not a hunter, though I support hunting rights. I don't have any problem with people on this forum going after the group filing this suit, but don't go after the judge based on this preliminary ruling. Read between the lines and the judge is telling the legislature to get their collective heads out of their arshes and make sure the law is internally consistent. I always thought courts that exercised a lot of judicial activism were in the hot seat around here.... Don't jump the gun here when a judge is exercising judicial restraint and telling the legistlature to clean up its own mess.
If you would like to follow this case, it is case number 01CV001616. Here is a link to the Wisconsin Circuit Court Access Program (CCAP):
[url]http://ccap.courts.state.wi.us/[/url]
EDITED for form.