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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
)
Appellant, ) Court of
Appeals No. A-4003
) Trial
Court No. 3KN-S90-1145CR
v. )
) O P I N I
O N
ANDREI MARTUSHEV, )
)
Appellee. ) [No. 1280 - February 5, 1993]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Kenai,
Lynn H. Christensen, Magistrate.
Appearances: Joseph N. Levesque, Assistant
District Attorney, Kenai, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. Robert Merle Cowan, Law Offices
of Cowan & Gerry, Kenai, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Andrei Martushev was charged with fishing commercially
in closed waters. District Court Magistrate Lynn H. Christensen
dismissed the prosecution, ruling that the emergency order
Martushev allegedly violated provided inadequate notice of its
effective boundary. The state appeals, and we reverse.
Fishing is a strictly regulated activity in Alaska; AS
16.05.920(a) prohibits the taking of fish except as permitted by
statute or regulation. The open season for commercial drift gill
net fishing of salmon in the Upper Subdistrict of the Central
District of the Cook Inlet Area is defined by regulation at 5
Alaska Administrative Code (AAC) 21.310(2)(B). The open season
is further broken down into weekly fishing periods by 5 AAC
21.320(b):
In the drift gill net fishery
(1) salmon may be taken in the Central
District from 7:00 a.m. Monday until 7:00
p.m. Monday and from 7:00 a.m. Friday until
7:00 p.m. Friday . . . ;
(2) the fishing periods set forth in (1)
of this subsection may be modified by
emergency order[.]
On Friday, July 20, 1990, the Department of Fish and
Game, finding that an excessive amount of salmon warranted
extending the weekly fishing period in a limited area for a
limited time, issued Emergency Order 2S-09-90, which temporarily
extended the opening for "that portion of the Upper Subdistrict
[of the Central District] south of the latitude of Collier's Dock
. . . ." Neither the emergency order nor any statute or
regulation specified the actual latitude of Collier's Dock,
although the Department had used the dock as a boundary landmark
for two years.
At a bench trial, Alaska State Trooper Kenneth Merrill
testified that he was patrolling Cook Inlet during the early
morning hours of Saturday, July 21, to ensure that Emergency
Order 2S-09-90 was not being violated. At about 5:40 a.m.,
Merrill observed Martushev's vessel, the Sea Zone, fishing north
of Collier's Dock. Merrill took several photographs of the boat,
which were admitted into evidence. In three of the photographs,
a pier, which Merrill identified as Collier's Dock, is visible in
the background beyond Martushev's boat, and light from the early
morning sun is visible to the left; therefore, Merrill testified,
the photographs show that Martushev was fishing north of
Collier's Dock.
Merrill testified that another officer, Trooper Robert
Lester, took loran (long-range navigation) readings to confirm
the Sea Zone's location. Merrill testified that these readings
showed that Martushev was at latitude 60ø41'25" N., which was 1.1
miles north of the Collier's Dock boundary line. Merrill also
testified that the most recent set latitude written in
Martushev's log on board his vessel was latitude 60ø40'74" N., a
location about one-half mile north of the Collier's Dock line.
On cross-examination, Merrill testified that he did not know the
latitude of Collier's Dock without looking up the figure.
However, the complaint form that Merrill filled out specified the
dock's location as latitude 60ø40'25" N. The state also sought
unsuccessfully to enter into evidence a chart of the United Cook
Inlet Drift Association that gave the same figure as the latitude
of "Collier Pier," but Magistrate Christensen ruled that the
chart was not relevant because Martushev was not a member of the
association. Merrill also admitted on cross-examination that
Martushev's open and cooperative behavior on the morning of July
21 was "consistent" with Martushev not having known where the
boundary was and not having known he was north of it.
At the conclusion of Merrill's testimony, Martushev
moved to dismiss the case because the emergency order did not
identify the specific latitude of Collier's Dock. Although he
conceded that the correct boundary was latitude 60ø40'25" N.,
Martushev argued that:
since that was not clearly articulated in the
opening order there, that the order as to
what the northern boundary was in this matter
is void for vagueness. It would have simply
been easy to have stated the latitude instead
of talking about Collier's Dock, because that
makes an assumption that everybody knows
which dock is which dock up there, and that's
not necessarily true.
The prosecutor argued in response that specifying the exact
latitude was not required for a strict liability offense,1 that
the language of the emergency order was clear, and that "most
fishermen are assumed to have knowledge of the sea, and knowledge
of regulations, and areas that are open and closed. They
shouldn't be fishing if they don't."
Magistrate Christensen granted Martushev's motion to
dismiss:
The court will first note that in other
regulations in the Administrative Code, for
instance 5 AAC 21.330 - I have not been asked
to take judicial notice of any other regula-
tion, but I will note that in that regulation
at least, when a landmark is referred to, it
is generally given in the latitude and a
longitude of that mark. I've not been able
to find anything in the surrounding statutes
that refers to Collier's Dock.
The state having an opportunity to
respond to defendant's motion for vagueness
may have been able to overcome that motion by
presenting evidence to the court that there
is some navigational device, for instance, a
chart that is put out by the U.S. Coast
Guard, that would refer to Collier's Dock as
a normal navigational aid. The court has no
idea if any such evidence exists, but as this
regulation is written and based on the
evidence and the record of this proceeding,
the court does find that the emergency order
is vague. And I'm going to grant the
defendant's motion to dismiss for vagueness.
And I will comment that this is not the
first emergency order regulation that this
court has found vague because of the
description. And I agree with [defense
counsel], it would have been fairly easy for
Fish and Game, who promulgates these
emergency orders, to put the latitude and
longitude in there. And absent any showing
that it is a common navigational aid, I grant
defendant's motion to dismiss the charge.
On appeal, the state argues that Magistrate Christensen
erred in dismissing the case. Before addressing the merits of
the state's claim, however, we must decide whether the state is
entitled to an appeal under these circumstances. The state
ordinarily has no right of appeal in criminal cases except to
test the sufficiency of the indictment, information, or
complaint.2 AS 22.07.020(d)(2); Alaska R. App. P. 202(c); Kott
v. State, 678 P.2d 386, 389 (Alaska 1984).
Martushev argues that the state has no right to appeal
under the circumstances of this case, because it seeks to test
the sufficiency of the emergency order on which the complaint is
based, rather than the sufficiency of the complaint itself. In
support of this argument, Martushev points out that the complaint
against him, unlike the emergency order, is not vague, since it
specifies that the effective boundary of the area open to fishing
is latitude 60ø40'25" N.
Testing the "sufficiency" of an indictment, however, is
not limited to contentions that the indictment is insufficient on
its face. For example, the state may appeal to test the
sufficiency of the evidence to support the indictment or the
legality of the procedures used to secure the indictment. Kott,
678 P.2d at 389 n.4. The state may also appeal when a trial
court dismisses a complaint after ruling that the underlying
statute or ordinance does not apply to the facts alleged in the
complaint. State v. Straetz, 758 P.2d 133, 134 n.1 (Alaska App.
1988); Anchorage v. Lloyd, 679 P.2d 486, 486 n.1 (Alaska App.
1984). We conclude that the state may appeal from a trial court
order dismissing a case on the ground that the underlying
regulation is unconstitutionally vague. Cf. State v. Allen, 304
N.W.2d 203, 205-06 (Iowa 1981) (state could appeal as of right
from dismissal for vagueness after trial). An appeal from such a
dismissal will not violate the double jeopardy clauses of the
federal or state constitutions even when the defendant moved for
dismissal after trial had begun. Selman v. State, 406 P.2d 181,
186-87 (Alaska 1965), overruled on other grounds, Whitton v.
State, 479 P.2d 302, 312 (Alaska 1970).
Martushev nevertheless argues that Magistrate
Christensen did not simply dismiss this case because the
emergency order was unconstitutionally vague, but in effect
granted a judgment of acquittal because the state produced
insufficient evidence that Martushev fished beyond the boundary
vaguely described in the emergency order. We disagree with
Martushev's characterization of the dismissal order.
When "the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all
of the factual elements of the offense charged," that ruling is a
judgment of acquittal; appellate review is not permitted under AS
22.07.020(d)(2) and is affirmatively barred by double jeopardy.
State v. Thronsen, 809 P.2d 941, 943 (Alaska App. 1991) (quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 571
(1977)). Conversely, when a court orders dismissal on legal
grounds that do not require resolution of the factual elements of
an offense, the order does not amount to a judgment of acquittal,
regardless of its timing or the label attached thereto. Cf.
Alaska R. Crim. P. 12(b)(empowering the court to adjudicate,
prior to trial, "[a]ny defense, objection, or request which is
capable of determination without the trial of the general
issue"); State v. Hebert, 803 P.2d 863, 868-69 (Alaska 1990) (a
trial defense based on invalidity of regulation upon which
prosecution is based would, if established, render complaint
invalid and warrant a dismissal).
In this case, the trial court's order of dismissal
contains language suggesting that the court may have weighed or
considered some of the evidence at trial in making its ruling.
Magistrate Christensen stated that he based his decision on "the
evidence and the record of this proceeding" and the fact that the
state had presented no evidence to the court showing that
Collier's Dock was a common navigational aid.
Beyond noting the lack of evidence to refute
Martushev's claim of vagueness, however, Magistrate Christensen
made no finding or decision implicating the factual elements of
the offense charged: the magistrate did not find the evidence
insufficient to convict Martushev of being north of Collier's
Dock and outside the open fishing area, nor did the magistrate
purport to acquit Martushev on that ground.3
Martushev conceded below that Collier's Dock is
actually located at latitude 60ø40'25" N.; he nevertheless
contended that, because this information was not specified in the
emergency order and was otherwise unavailable to him, he could
not reasonably have been expected to know where the boundary line
was. This appears to have been the sole ground upon which
Magistrate Christensen dismissed Martushev's case. We therefore
turn to the merits of this appeal.
Due process requires that a Fish and Game emergency
order not be stated "in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as
to its application." Fishing Vessel American Eagle v. State, 620
P.2d 657, 665 (Alaska 1980) (quoting Stock v. State, 526 P.2d 3,
8 (Alaska 1974)), appeal dismissed, 454 U.S. 1130 (1982).
Martushev contends that Emergency Order 2S-09-90 was vague
because, by omitting the latitude of Collier's Dock, the order
failed to provide adequate notice to ordinary citizens of the
conduct it prohibited.
In support of this argument, Martushev alleges that
there is no publication, map, statute, or administrative code
provision specifying the exact location of Collier's Dock and
that the area "south of the latitude of Collier's Dock" is not
well-known or clearly marked. Martushev also points out that
Merrill did not know the latitude or longitude of Collier's Dock,
that the landmark boundary has been in use for only two years,
and that there are other companies with docks along that area of
the shore.
However, Martushev made no effort below to substantiate
his assertion that the location of Collier's Dock was incapable
of being readily ascertained. Instead, Martushev sought to turn
the tables on the prosecution, claiming that the state had failed
to prove that he should have been aware of the dock's location.
In ordering dismissal, Magistrate Christensen accepted
Martushev's approach to the vagueness issue, in effect deciding
that an emergency order naming a landmark without also giving its
geographic coordinates is presumptively invalid unless the state
shows that the landmark is a normal or common navigational aid.
This approach is incorrect as a matter of law, for it
subverts the usual rule that places the burden of establishing a
claim squarely on the shoulders of the claim's proponent. To
establish vagueness, it was not sufficient for Martushev to show
that the Department of Fish and Game could have done better --
that it could have described the disputed boundary with greater
clarity by specifying the latitude of Collier's Dock. Rather, as
we have already indicated, Martushev was required to show that
the emergency order's description was "so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to its application." Fishing Vessel American Eagle v.
State, 620 P.2d at 665 (emphasis added).
In order to carry this burden, Martushev was obliged
"to prove, in addition to showing [that] information concerning
the law was not made reasonably available, that he made
reasonable efforts to act lawfully and that he subjectively did
not know that his conduct was criminal and believed that there
was 'no risk of criminality.'" Shetters v. State, 832 P.2d 181,
183 (Alaska App. 1992).
In Shetters, the defendant contended that the local
option statute allowing communities to prohibit the importation
of alcohol violated constitutional due process because neither
the statute nor any published law or regulation gave notice of
the specific communities that had prohibited such importation.
We rejected this challenge, noting that Shetters had not
established that he had made reasonable inquiries into whether
his conduct was permitted or that he had actually believed his
conduct was legal. Id.
In this case, Martushev has not shown that the latitude
of Collier's Dock was unpublished, that he made reasonable
efforts to learn the latitude of Collier's Dock, or that he
subjectively and reasonably believed there was no risk that he
was north of it. To prevail on his motion for dismissal, the
burden was on Martushev to establish these facts, not on the
state to rule them out.4
Placing the burden on Martushev to substantiate his
claim of vagueness is particularly appropriate in light of the
nature of the emergency order that he challenges. The need for
clarity in a statutory or regulatory provision is greatest when
the provision is one that restricts activities in which a broad
range of citizens would ordinarily engage. Optimal clarity is
necessary in the case of such a provision, since the risk of
innocent citizens committing unintentional violations is
particularly high. Emergency Order 2S-09-90, however, did not
address itself to a broad group of ordinary citizens, nor did it
seek to restrict a generally permitted activity. To the
contrary, the emergency order was directed at a limited group of
persons participating in the commercial fishing industry, and it
authorized a limited scope of commercial fishing activity that
would otherwise have been prohibited.
At least two factors diminish the need for concern with
optimal clarity under these circumstances. First, given the
commercial and closely regulated nature of the activity that the
challenged emergency order deals with -- commercial fishing --
participants in the activity can properly be held to a higher
standard of compliance than might be appropriate for ordinary
citizens. Second, the very act of taking advantage of permission
-- limited in time and place -- to engage in otherwise forbidden
activity carries with it a commensurate duty to make reasonable
efforts to determine the effective scope of the permission.
In the present case, it would have been palpably
unreasonable for Martushev, a commercial fisherman, to assume
that the emergency order's failure to specify a precise latitude
for Collier's Dock left him free to drop his nets anywhere he
chose. Cf. State v. Eluska, 724 P.2d 514, 515 (Alaska 1986)
(given general statutory provision prohibiting all hunting unless
expressly authorized, agency's failure to promulgate appropriate
subsistence regulations did not permit unregulated subsistence
hunting). Absent affirmative proof that he did not know and
could not have learned, through reasonable inquiry, the location
of Collier's Dock, Martushev should not have been allowed to
prevail on his vagueness claim. We conclude that the district
court erred in dismissing Martushev's case without requiring such
a showing.
We REVERSE the order of dismissal and REMAND the case
for further proceedings consistent with this opinion.
_______________________________
1. The state had elected to seek strict liability
commercial fishing penalties under AS 16.05.722 and 5 AAC 39.002.
2. The state also has the right to appeal a sentence
as too lenient; this limited appellate right, however, is not
germane here.
3. In contrast, the supreme court in Casey v. State,
509 P.2d 285, 286 & n.2 (Alaska 1973), noted that a statute
prohibiting possession of a drug having "similar physiological
effects" to the drugs listed in the statute might be
unconstitutionally vague for lack of notice but did not reach
that issue, holding instead that there was no evidence at trial
that defendant's drug did in fact have "similar physiological
effects" to the listed drugs and reversing the conviction on that
basis.
4. Wacek v. State, 530 P.2d 751 (Alaska 1975) (per
curiam), provides a useful contrast to the present case. In
Wacek, the supreme court reversed the defendant's conviction for
discharging a firearm in a public park based on facts stipulated
by the parties: that no signs marked the boundaries of the park,
that no information either published or provided to hunters
showed the location or even mentioned the existence of the park,
and that the defendant had promptly sought a trooper and reported
the shooting when a passer-by informed him the area was closed.
The court held that, "given all the facts stipulated," it had "no
difficulty" in concluding that the state had given inadequate
notice of the boundaries of the area in which discharging a
firearm was prohibited. Id. at 753 & n.2. The parties had
essentially stipulated that an objectively reasonable defendant
could not have been expected to know the location where conduct
was illegal and that the particular defendant had acted in
subjective good faith. Martushev has not established any similar
facts in this case.
