NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501,
in order that corrections may be made prior to
permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5728
Appellant, ) Trial Court No. 1KE-S94-442CR
)
v. ) O P I N I O N
)
DAVID B. LAWLER, )
) [No. 1473 - June 21, 1996]
Appellee. )
________________________________)
Appeal from the District Court, First Judicial
District, Ketchikan, George L. Gucker, Judge.
Appearances: Stephen R. West, Assistant
District Attorney, Ben M. Herren, District
Attorney, Ketchikan, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant. C.
Keith Stump, Ketchikan, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
The state cited David B. Lawler for fishing with an
undersized gillnet, in violation of 5 AAC 27.131(f). District
Court Judge George L. Gucker dismissed the case, ruling that the
former regulation defining the "stretched measure" method of
determining net mesh size violated Lawler's right to due process.
The state appeals, and we reverse.
 The facts are undisputed. Lawler was fishing commer-
cially for herring in the area where gillnets with a mesh size of
less than two and one-fourth inches were prohibited under 5 AAC
27.131(f). Troopers measured Lawler's net after he pulled it from
the water, found it to be under the minimum size, and cited him for
fishing with an undersized gillnet.
Prior to trial, Lawler moved to dismiss the charge,
arguing that the regulations governing measurement of minimum net
mesh size were unconstitutionally vague. Under 5 AAC 39.105(c),
the term "mesh size" refers to "stretched measure." "Stretched
measure" is, in turn, defined in 5 AAC 39.975(11); at the time of
Lawler's charge, this regulation provided:
"stretched measure" means the average length
of any series of 10 consecutive meshes
measured from inside the first knot and
including the last knot when wet after use;
the 10 meshes, when being measured, shall be
an integral part of the net, as hung, and
measured perpendicular to the selvages;
measurements shall be made by means of a metal
tape measure while the 10 meshes being
measured are suspended vertically from a
single peg or nail, under five-pound weight,
except as otherwise provided in this title.
(Emphasis added.) (EN1)
In moving to dismiss his charge as vague, Lawler did not
deny that his net, as measured after fishing, was under the minimum
size. Rather, Lawler maintained that, by defining "stretched
measure" in terms of a net's mesh size "when wet after use," 5 AAC
39.975(11) left him only one way to accurately determine if his net
was legal: by actually fishing with it and thereby incurring the
risk of committing a violation. To support this argument, Lawler
informed the court that two days before his citation was issued --
when his net was still new -- an Alaska State Trooper had checked
the net for mesh size and had found it legal. Lawler maintained
that, before fishing with the net, he could not have predicted that
its mesh would be under the minimum size "when wet after use."
Judge Gucker found Lawler's argument persuasive and
dismissed his case:
This court fails to see how a regulation,
such as the one at hand, that cannot logically
be complied with by the scrupulous could be
rationally related to a legitimate govern-
mental end. For a law to have its desired
effect it must be complied with by citizens.
This one cannot. The state has been unable to
explain how a fisherman could conceivably
obtain the measurement required by [former] 5
AAC 39.975(11) without placing himself in
peril of violation, and the herring resource
in peril of overfishing by use of undersize
nets. No rational regulation requires a
fisherman to "use" a gillnet prior to
determining whether it is legal or not. Not
even the scrupulous could comply with the
regulation, and thus no rational relationship
can be said to exist between this regulation
and the management of the herring population.
The state then appealed.
A criminal statute is unconstitutional when it is "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). The challenged
definition of "stretched measure" plainly establishes a precise and
accurate method for determining if a net meets the minimum mesh
size limit once it is "wet after use." Lawler nevertheless argues
that, because the definition of "stretched measure" requires
measurement of a net "when wet after use," there is no accurate way
to determine if a net will meet the minimum mesh size criteria
without actually using the net for fishing. While essentially
conceding that the definition of "stretched measure" is
sufficiently precise after the fact, Lawler insists that it suffers
from pre-violation vagueness: that it fails to provide advance
notice of the conduct it prohibits.
A threshold problem with this argument is its tacit
assumption that the state was constitutionally required to give
Lawler an error-free and mathematically precise way to determine
his net's mesh size before he undertook any commercial fishing
activity. The validity of this assumption is not self-evident.
In numerous situations, the law permits criminal
sanctions to be imposed against persons who act without certain
knowledge of the precise nature or consequences of their conduct.
For example, a person who recklessly causes physical injury to
another may be found guilty of assault, even though the assailant
did not know -- and could not have predicted with certainty -- that
the injurious conduct would actually result in harm to the victim.
See, e.g., AS 11.41.230(a)(2).
Similarly, a motorist may be convicted of DWI for driving
with a blood-alcohol level in excess of a specific limit, even
though no precise method of determining blood-alcohol content is
readily available to the driver until the post-arrest breath test
is administered. Williford v. State, 653 P.2d 339, 342 (Alaska
App. 1982), rev'd on other grounds, 674 P.2d 1329 (Alaska 1983);
see, e.g., Van Brunt v. State, 646 P.2d 872, 873 (Alaska App.
1982); Morgan v. Anchorage, 643 P.2d 691, 692 (Alaska App. 1982);
see also State v. Miller, 788 P.2d 974, 977 (Or. 1990) ("One who
drives after drinking . . . takes the risk that [one's blood-
alcohol level] violates the statute.").
In the present case, Lawler participated in a licensed
and heavily regulated commercial activity. The regulations he
allegedly violated specifically dealt with that activity. As we
recently pointed out in State v. Martushev, 846 P.2d 144, 150
(Alaska App. 1993):
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.[ (EN2)]
Furthermore, Lawler was charged with a violation under a
strict liability statute. See AS 16.05.722. Because the strict
liability provision subjected Lawler only to non-criminal sanctions
and, by definition, applied regardless of his culpable mental
state, the need to provide him a precise means of predicting the
lawfulness of his conduct was significantly diminished.
But even assuming that the state had a constitutional
duty to provide Lawler a precise means to determine in advance the
lawfulness of his net's mesh size, Lawler's claim of vagueness
would not succeed. The definition of "stretched measure" set forth
in 5 AAC 39.975(11) suffers from no glaring deficiency: except
perhaps to the most hypertechnical of readers, the regulation
seemingly describes a reasonably accurate way of determining mesh
size either before or after fishing. The regulation's reference to
measurement of a net that is wet "after use," would have
significance only if there was evidence to indicate that the mesh
size of a wet net might vary depending on the cause of its wetness
-- that is, depending on whether it was made wet through actual use
in fishing or through some other means, before fishing. The record
contains no such evidence.
To determine his net's mesh size, Lawler chose to rely on
a measurement performed on a dry net that was stretched by hand
instead of being "suspended vertically from a single peg or nail,
under five-pound weight." 5 AAC 39.975(11). The trooper who
performed the pre-fishing measurement for Lawler expressly warned
Lawler that it was informal and that an accurate measurement could
be obtained only by following the method prescribed by the
regulation defining "stretched measure." Lawler failed to
demonstrate below, and he has failed to explain on appeal, why he
could not have wet his net by means other than fishing it, and then
proceeded with the exact method of measurement specified in the
challenged regulation. Nothing in the record suggests that Lawler
would have obtained a misleading or inaccurate result had he done
so.
As the proponent of a motion to dismiss for vagueness,
Lawler bore the burden of proving his claim. State v. Martushev,
846 P.2d at 149. To meet this burden, Lawler was required "to
prove [that] information concerning the law [in this case, whether
his net was undersized] 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.'" Id. at 149 (quoting Shetters v.
State, 832 P.2d 181, 183 (Alaska App. 1992)).
Lawler has failed to meet his burden of proving that the
challenged regulation's definition failed to make an accurate form
of measurement "reasonably available" to him or "that he made
reasonable efforts to act lawfully." State v. Martushev, 846 P.2d
at 149. Accordingly, the district court erred in dismissing
Lawler's case based on the purported vagueness of the charge.
The order of dismissal is REVERSED.
ENDNOTES:
1. Effective June 2, 1995, the words "after use" were deleted
from 5 AAC 39.975(11).
2. Cf. Nelson v. State, 387 P.2d 933, 935 (Alaska 1964)
(regulation forbidding shooting of bear under two years of age did
not violate due process even though "it is impossible for a hunter
who sees a wild bear to ascertain its precise age"; the "informed
hunter" must correctly "estimate that the bear is more than two
years old" before lawfully shooting it).
