Constantine v. State

739 P.2d 188, 1987 Alas. App. LEXIS 251

• Court: Court of Appeals of Alaska
• Decided: July 2, 1987
• Docket: A-1247, A-1409 and A-1414
• Status: Published

Opinions

OPINION

COATS, Judge.

This case raises the question of what noncriminal penalties the court is authorized to impose for the violation of a regulation.¹ In Beran v. State, 705 P.2d 1280 (Alaska App.1985), we dealt with Fish and Game Regulation 5 AAC 39.002 which provides:

Liability for Violations. Unless otherwise provided in 5 AAC 01-5 AAC 41 or in AS 16, a person who violates a provision of 5 AAC 01-5 AAC 41 is strictly liable for the offense, regardless of his intent.

We concluded that the Board of Fisheries, in passing this regulation, intended to authorize the imposition of criminal penalties for fishing regulations even if the defendant had acted without negligence. Beran, 705 P.2d at 1284. However, we held that we could not find that the Board of Fisheries was authorized to criminalize violations which occurred without negligence where the legislature had not specifically given it that authority. Id. at 1284-85. We concluded that, under these circumstances, in order for a court to impose criminal penalties for the violation of a fishing regulation, proof of at least a mens rea of negligence was necessary. Id. at 1291.

In Beran, we also concluded that the legislature did authorize the Board of Fisheries to make the breach of a regulation punishable by a noncriminal fine without proof of a culpable mens rea. Id. at 1283-84. However, we did not decide what noncriminal penalties could be imposed. Id. at 1284 n. 4. In this appeal, we are asked to determine what penalties the legislature intended to be available to sanction those found in violation of fish and game regulations where the state elects to proceed on a theory of strict liability.

The appellants point to the definition of a “violation” as it is defined in AS 11.81.-900(b)(56):

“violation” is a noncriminal offense punishable only by a fine, but not by imprisonment or other penalty; conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime; a person charged with a violation is not entitled

(A) to a trial by jury; or

(B) to have a public defender or other counsel appointed at public expense to represent the person....

The appellants cite AS 12.55.035(b)(5) which sets a maximum fine of $300 for a violation and AS 12.85.010 which states that the provisions of Title 12 “apply to all criminal actions and proceedings in all courts except where specific provision is otherwise made....” They contend, therefore, that a $300 fine is the maximum sentence which may be imposed for a strict liability violation of fish and game regulations.

The state contends that it is a misconception to assume that AS 12.85.010 precludes reference to any penalty provision other than AS 12.55.035(b)(5) for fish and game violations under Title 16. The state urges us to apply the penalty sections, except those which provide for imprisonment, set forth in AS 16.05.720(a) and (c) and AS 16.05.195.² These penalties involve fines of up to $5,000 and the forfeiture of fish and gear.

After closely examining the question of what noncriminal sanctions might be appropriate for violations of fisheries regulations, we conclude that the legislature simply has not addressed this problem. We are reluctant to assume that the legislature intended to allow imposition of the maximum permissible noncriminal sanctions in the face of legislative silence. The cases before us involve the imposition of large fines and forfeiture of fish and gear in cases where there has been no proof that the defendants acted with negligence. In Beran, Chief Judge Bryner, in a concurring opinion, concluded that the due process clause of the Alaska Constitution, art. 1 § 7, precluded imposition of criminal sanctions for an offense where there had been no proof of a minimum mens rea. 705 P.2d at 1292. In my concurring opinion in Beran, I recognized that this due process issue raised a serious question, but found it unnecessary to resolve this issue under the facts of Beran.3 Id. at 1293.

We consider the imposition of substantial penalties for the violation of an offense without proof of mental culpability to be a serious matter. We recognize that other states and the federal government have allowed the imposition of substantial sanctions, including imprisonment, without proof that an offense was committed with a culpable mental state. However, before the courts are authorized to impose these sanctions, in light of the due process implications under the Alaska Constitution, we believe that the legislature should specifically indicate that it is necessary to impose substantial penalties. The legislature should also establish the nature of these penalties, even if they can be properly denominated as noncriminal penalties.

We believe that it is sufficiently clear that the legislature has approved at least the imposition of a maximum fine of $300 for a noncriminal violation. AS 12.55.-035(b)(5). We also believe that it is clear that the legislature intended to authorize the court to order the forfeiture of any fish or game obtained in violation of a regulation. We see no reason to allow a defendant, even if he or she acted without fault, to have a valid claim to fish or game obtained in violation of a regulation. We believe that AS 16.05.190 and AS 16.05.195 provide sufficient legislative authorization for this action. However, we are unwilling to go beyond this point without a clearer indication of legislative intent.

The sentences are REVERSED and the cases are REMANDED for resentencing consistent with this opinion.⁴

1 . Aleck Constantine was found to be in violation of a regulation, based upon a no contest plea, for fishing in closed waters. 5 AAC 06.350(f). District Court Judge John D. Mason imposed a fine of $2,500, all suspended, and placed Constantine on probation for two years. Judge Mason ordered $6,797.60 worth of fish and 150 fathoms of gill net forfeited to the state.

David Byayuk was found to be in violation of a regulation, based upon a no contest plea, for fishing in closed waters. 5 AAC 06.350®. Superior Court Judge S.J. Buckalew, Jr., imposed a fine of $5,000 with $3,000 suspended. The suspension was conditioned on no similar violations for one year. The fish on board the vessel, valued at $6,094.62, and three shackles of net were forfeited to the state.

George Koktelash was found to be in violation of a regulation, based upon his no contest plea, for fishing outside the Naknek subdistrict. 5 AAC 06.320(e). Judge Buckalew imposed a fine of $2,000, all suspended. The suspension was on the condition of no similar violations within one year. Judge Buckalew ordered the forfeiture of the gear and fish on board the vessel.

2 . Alaska Statute 16.05.720 states in pertinent part:

Penalties, (a) Except as modified by (c) of this section, a person who violates AS 16.05.-480-16.05.690 or the regulations of the department pertaining to commercial fisheries is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both.

(c) A person who is convicted of commercial fishing in closed waters, commercial fishing during a closed period or season, or commercial fishing with unlawful gear including but not limited to nets, pots, tackle, or other devices designed or employed to take fish commercially, is guilty of a misdemeanor and in addition to the penalty imposed under (a) of this section is punishable by a fine of not less than the gross value to the fisherman of the fish found on the vessel or at the fishing site at the time of the violation. Upon a third conviction of a person for a violation under this subsection, and in addition to the forfeiture provision in AS 16.05.710, the fine shall be not less than three times the gross value to the fisherman of the fish found on the vessel or at the fishing site, or, if no fish are found on the vessel or at the fishing site, a fine of not more than $10,000.

Alaska Statute 16.05.195 states:

Forfeiture of equipment, (a) Guns, traps, nets, fishing gear, vessels, aircraft, other motor vehicles, sleds, and other paraphernalia or gear used in or in aid of a violation of this title, or regulation adopted under this title, and all fish and game or parts of fish and game or nests or eggs of birds taken, transported or possessed contrary to the provisions of this title, or regulation adopted under it, may be forfeited to the state

(1) upon conviction of the offender in a criminal proceeding of a violation of this title in a court of competent jurisdiction; or

(2) upon judgment of a court of competent jurisdiction in a proceeding in rem that an item specified above was used in or in aid of a violation of this title or a regulation adopted under it.

(b) Items specified in (a) of this section may be forfeited under this section regardless of whether they were seized before instituting the forfeiture action.

(c) An action for forfeiture under this section may be joined with an alternative action for damages brought by the state to recover damages for the value of fish and game or parts of them or nests or eggs of birds taken, transported or possessed contrary to the provisions of this title or a regulation adopted under it.

(d) It is no defense that the person who had the item specified in (a) of this section in possession at the time of its use and seizure has not been convicted or acquitted in a criminal proceeding resulting from or arising out of its use.

(e) Forfeiture may not be made of an item subsequently sold to an innocent purchaser in good faith. The burden of proof as to whether the purchaser purchased the item innocently and in good faith shall be on the purchaser.

(f) An item forfeited under this section shall be disposed of at the discretion of the department. Before the department disposes of an aircraft it shall consider transfer of ownership of the aircraft to the Alaska Wing, Civil Air Patrol.

3 . In Beran v. State, 705 P.2d 1280 (Alaska 1985), the narrow holding of the case was that, unless specifically authorized by the legislature, criminal sanctions could not be imposed for the violation of a fishing regulation without proof of a mens rea of at least negligence.

4 . Constantine claims that the trial court erred in ordering the forfeiture of all of the fish on board his vessel. He argues that the state failed to show that all the fish were fruits of the violation. Our decision to remand for resen-tencing makes it unnecessary for us to decide this issue.