Worthington, Minn. — The Minnesota Supreme Court is going to settle the matter of whether a Minnesota man should have been convicted for hunting without a license.
The state’s highest court heard oral arguments for the case in front of students at the Worthington High School auditorium on Oct. 1, part of a biannual program intended to teach students about the court system.
It was the case of the State of Minnesota vs. Roger Benedict Schmid of Stearns County, following a conviction in 2012 and a 2013 ruling by the Minnesota Court of Appeals, which upheld the conviction.
Schmid, who in November 2011 had legally shot and killed a deer the previous day, did not have a bonus tag to take another deer when DNR conservation officer Chad Thesing found him on his ATV with his blind up, wearing orange clothing, and sitting with a shotgun loaded with four slugs.
Schmid’s attorneys are arguing that he was charged under an incorrect statute.
“That’s how we opened the oral argument,” said Dan White, an attorney with Briggs and Morgan, P.A., the Minneapolis law firm representing Schmid. “Roger Schmid was charged with the wrong statute. … They should have charged him with criminal attempt to take a deer without a license. Instead of doing that, they said take was redefined by the definition of taking.”
The officer charged him under a state statute that reads, “A person may not take a deer without a license.”
The Minnesota Court of Appeals, which ruled against him in a nine-page opinion, saying that entering a deer-hunting area, sitting in a camo blind, and holding a loaded weapon constitutes “pursuing.”
That word “pursuing” falls under another statute, which defines “taking” as “pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals. Taking includes attempting to take wild animals, and assisting another person in taking wild animals.”
Schmid applied for the case to be heard by the Minnesota Supreme Court.
The appellant’s brief filed with the case argues that the Court of Appeals’ decision should be reversed because the Legislature “unambiguously used the word ‘take,’ not ‘taking,’ in the statute under which Schmid was convicted.”
“There are reasons why we should treat these words differently,” White said. “The word ‘take’ has a very precise legal definition that has existed in common law for hundreds of years.”
The brief says, “The undisputed facts show that Schmid did not take a deer, and his conviction must therefore be reversed.”
White said there are a lot of examples in game and fish law where it would be silly for “take” and “taking” to have the same meaning. If that were the case, a grouse hunter could be charged for flushing more than the allowable daily limit of birds, White said.
White, noting that this is the first time the Minnesota Supreme Court has concerned itself with deer hunting, said the case is important because if the Minnesota Court of Appeals decision stands, it makes it easier for conservation officers to “zing hunters when they weren’t doing anything wrong.”
“If this case continues as it is, that would mean that if I have a license and walk around a field, looking for coyotes, I can be cited, charged, and convicted for deer hunting without a license, which is not why I may be out there,” White said.
White said it could be a while before the Supreme Court releases a decision. There is no time limit, but he anticipates it could take 100 days for a decision.