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State v. Blackmore (5/19/00) ap-1675
State v. Blackmore (5/19/00) ap-1675
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7297
Appellant, ) Trial Court No. 3AN-98-8652 Cr
)
v. )
) O P I N I O N
JACQUELINE BLACKMORE, )
)
Appellee. ) [No. 1675 May 19, 2000]
)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Samuel D. Adams, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Glenda J. Wirth, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The Alaska Board of Game has enacted a regulation, 5 AAC
92.002, which declares that, unless a statute or another regulation
provides otherwise, any person who violates a provision of 5 AAC 84
5 AAC 92 (i.e., any person who violates this state's trapping and
hunting regulations) "is strictly liable for the offense, regardless
of that person's intent."
Jacqueline Blackmore shot a ram whose horns proved to be
less than full-curl. [Fn. 1] The State announced that it intended
to prosecute Blackmore for this offense under a "strict liability"
theory (i.e., without trying to prove that Blackmore acted
negligently). But the district court ruled that the legislature had
not granted the Board of Game any authority to enact strict
liability offenses, and thus the Board exceeded its powers when it
promulgated 5 AAC 92.002. Based on this ruling, the district court
dismissed the charge against Blackmore. The State now appeals.
This case is governed by our decision in Beran v. State.
[Fn. 2] Beran involved a similar attempt by the Board of Fisheries
to establish strict liability offenses. Based on our examination
of the common-law power of administrative agencies, we held that,
"[even] in the absence of express statutory authorization,
administrative agencies ... have the power to establish strict
liability violations". [Fn. 3] That is, agencies have the common-
law power to impose non-criminal penalties on people who violate the
agency's regulations, even when the violator acts without mens rea.
We explained that, when the Board of Fisheries or the Board of Game
has exercised this authority,
every fish and game regulation comprises both
a crime requiring [proof of] mens rea and a
violation which differs from the crime only in that a conviction
does not require a finding of mens rea.
Beran, 705 P.2d at 1291 n.13.
Given our construction of the common law in Beran, the
district court asked the wrong question when it resolved Blackmore's
case. The issue is not whether the legislature has specifically
authorized the Board of Game to enact strict liability offenses.
Rather, the issue is whether the legislature has forbidden the Board
from doing so because, in the absence of a legislative
prohibition, the Board retains its common-law power to enact strict
liability offenses (so long as the punishment for these offenses
remains non-criminal).
Blackmore defends the district court's ruling by pointing
to the legislature's enactment of AS 16.05.722, which provides
special penalties for certain strict liability violations of
Alaska's commercial fishing laws. Relying on the principle of
expressio unius est exclusio alterius (the express mention of one
thing implies an intention to exclude others), Blackmore argues that
if the legislature took the trouble to enact special penalties for
the strict liability violation of some fish and game regulations,
the legislature must have intended to prohibit the Boards of
Fisheries and Game from enacting strict liability offenses for all
other types of fish and game regulations.
We do not agree. AS 16.05.722, which was enacted in 1988
[Fn. 4], appears to be a direct response to our 1987 decision in
Constantine v. State [Fn. 5], where we held that the maximum penalty
for a strict liability violation of a fish and game regulation would
be a $300 fine and forfeiture of the illegally taken wildlife,
unless the legislature enacted more stringent non-criminal
penalties. By enacting AS 16.05.722, the legislature declared that
it wished to impose penalties greater than the Constantine maximum
for certain types of fishing violations. But it does not follow
that the legislature intended to ban strict liability prosecutions
for all other fish and game violations. Rather, one can infer only
that the legislature believed that the Constantine maximum was a
proper penalty for the other strict liability violations.
We note that 5 AAC 92.002 the regulation authorizing
strict liability prosecutions of hunting and trapping cases has
been in effect for more than a decade. [Fn. 6] Had the legislature
wished to repeal this regulation, it could have done so. [Fn. 7]
But the legislature has taken no such action, and 5 AAC 92.002
remains in effect.
We conclude that the legislature has not prohibited the
Boards of Fisheries and Game from exercising their common-law power
to enact strict liability offenses. Accordingly, 5 AAC 92.002 is
a valid regulation, and the district court erred when it dismissed
the prosecution against Blackmore.
The judgement of the district court is REVERSED, and this
case is remanded to the district court for further proceedings on
the complaint filed against Blackmore.
FOOTNOTES
Footnote 1:
This is a violation of 5 AAC 85.055. The term "full-curl" is
defined in 5 AAC 92.990(a)(19).
Footnote 2:
705 P.2d 1280 (Alaska App. 1985).
Footnote 3:
Id. at 1288. See also id. at 1284 n.4, where we clarified that
we were using the term "violation" as it is defined in AS
11.81.900(b)(59): "a noncriminal offense punishable only by a fine".
Footnote 4:
See SLA 1988, ch. 46, sec. 3.
Footnote 5:
739 P.2d 188, 190, 191 (Alaska App. 1987).
Footnote 6:
This regulation was first enacted as an emergency regulation
in 1985 and was later made permanent. See Registers 95 and 111.
Footnote 7:
See AS 44.62.320. See also AS 24.05.182, AS 24.20.400, and
AS 24.20.445.
