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Gregory Boyd v. Alaska Dept. of Commerce & Economic Development, Div. Of Occupational Licensing (5/28/99), 977 P 2d 113
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
GREGORY BOYD, )
) Supreme Court No. S-8568
) Superior Court No.
v. ) 3AN-97-6052 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF COMMERCE AND ECONOMIC )
DEVELOPMENT, DIVISION OF ) [No. 5126 - May 28, 1999]
OCCUPATIONAL LICENSING, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: Brent R. Cole, Marston & Cole,
P.C., Anchorage, for Appellant. Gayle A. Horetski, Assistant
Attorney General and Bruce M. Botelho, Attorney General, Juneau,
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
The State Division of Occupational Licensing denied
Gregory Boyd's application for renewal of his hunting guide license
on the ground that a $2,500 payment he had previously made as a
condition of a suspended imposition of sentence for a regulatory
violation was a "fine"under AS 08.54.605. While we affirm the
Division's denial, we also hold that Boyd may request modification
of his SIS conditions.
II. FACTS AND PROCEEDINGS
From 1986 to 1996 Gregory Boyd was a registered hunting
guide in Alaska. Boyd claims to have received up to seventy
percent of his annual income from guiding clients on big game hunts
in Alaska. His license, issued by the Alaska Department of
Commerce & Economic Development, Division of Occupational
Licensing, [Fn. 1] expired on December 31, 1996.
During 1996 Boyd pled "no contest"to two violations of
AS 16.05.407(a) for failing to provide a licensed assistant guide
to certain non-resident sheep and bear hunters. Boyd had hired an
assistant guide who had represented to Boyd that he was licensed,
but who had failed to pay the required licensing fee and to obtain
updated CPR and First Aid cards.
Under the terms of a negotiated agreement between Boyd
and the Palmer District Attorney's Office (through Assistant
District Attorney Dave Berry), Boyd received a one-year suspended
imposition of sentence (SIS) on both of the counts. The agreement
provided that the probationary periods for both counts would run
consecutively. The sentencing judge required that Boyd make two
payments of $2,500 as a condition of the SIS and handwrote "fines
concurrent"and "[f]orego [the] Spring '97 Bear hunt"on the
In January 1997 Boyd began filling out his application
for license renewal. In the application, the Division asks
potential guides to disclose whether they have been convicted of a
state hunting or guiding regulation violation "for which [they]
were fined more than $1,000." Boyd's attorney, Brent Cole, called
Assistant District Attorney Berry to inquire as to whether the
$2,500 payment would be a barrier to Boyd's license renewal and, if
so, whether the District Attorney's Office would agree not to
oppose a restructuring of Boyd's SIS conditions to avoid such a
result. Cole wrote a follow-up letter to Berry on January 8, 1997,
This letter will confirm our understanding
that Mr. Boyd's payment to the court of $2,500 under the terms of
his suspended imposition of sentence is not considered a fine under
12.55.035 but rather a condition of the suspended imposition of
sentence. If I am incorrect in the assessment please contact me.
In light of this understanding, Boyd sent his renewal application
to the Division in February 1997, asserting that he had not been
convicted of a state hunting or guiding regulation violation for
which he was fined more than $1,000.
On March 24, 1997, the Division sent Boyd a letter
informing him that his registered guide license would not be
According to Sec. 08.54.605(1)(A), a person
may not receive or renew a registered guide license, master guide
license, class-A assistant guide license, assistant guide license,
or transporter license if the person has been convicted of a state
hunting, guiding, or transportation services statute of [sic]
regulation within the last five years of which the person was fined
more than $1,000 or imprisoned for more than five days.
Boyd sought an immediate hearing to review the Division's denial of
his license renewal. The administrative hearing officer for the
Division found that the $2,500 payment did constitute a fine and
affirmed the agency's decision.
On August 6, 1997, Boyd filed a notice of appeal to the
superior court, as well as an emergency motion for injunctive
relief seeking a stay of the administrative order and immediate
issuance of his license. The superior court granted Boyd's request
for a stay and directed the Division to issue Boyd a license. The
State appealed the ruling to this court; we declined to remove the
stay. Boyd thus received a guide license for the 1997 hunting
season effective August 15, 1997.
After hearing Boyd's substantive appeal from the
administrative decision, the superior court affirmed the actions
taken by the Division. Boyd appeals.
A. Standard of Review
We review questions of law not involving agency expertise
under the so-called "substitution of judgment"test. [Fn. 2]
"Application of this standard permits a reviewing court to
substitute its own judgment for that of the agency even if the
agency's decision had a reasonable basis in law."[Fn. 3]
B. Boyd's Payment Constitutes a "Fine"under AS 08.54.605.
Boyd claims that his $2,500 payment cannot be a fine
under AS 08.54.605 [Fn. 4] because a court must actually impose a
sentence in order to require payment of a "fine." Boyd relies on
AS 12.55.035, which provides that, "upon conviction of an offense,
a defendant may be sentenced to pay a fine as authorized in this
section or as otherwise authorized by law."
But in so arguing, Boyd ignores the statutes governing
SIS and probation: AS 12.55.080-.100. Subsection .100 specifically
authorizes fines as conditions of probation: [Fn. 5]
(a) While on probation and among the
conditions of probation, the defendant may be required
(1) to pay a fine in one or several sums;
(2) to make restitution or reparation to
aggrieved parties for actual damages or loss caused by the crime
for which conviction was had . . . .
Indeed, given that courts may go so far as to require imprisonment
as a condition of SIS, [Fn. 6] Boyd's interpretation of sec. .035
precluding payment of a fine except when pursuant to an actual
sentence seems untenable. [Fn. 7]
Boyd's own counsel and the assistant district attorney
acknowledged at the sentencing hearing their understanding that the
payment constituted a fine:
Cole: The negotiated disposition is this:
Mr. Boyd will receive a suspended imposition on each count . . .
and the suspended impositions will run consecutively, so the idea
is that he will be on probation for three years, essentially.
There will be no jail time imposed. There will be a $5,000 fine
with $2,500 suspended.
. . . .
Berry: Yes, correct. Each count, but just
Moreover, this court has previously treated such payments
as "fines"regardless of the particular language used by the
sentencing court. In Brown v. State, [Fn. 8] the superior court
imposed a sentence of two years' probation on a defendant who pled
nolo contendere to a charge of polygamy and required the defendant
to pay $3,000 as a condition of probation. [Fn. 9] On appeal, this
court concluded that "the sentencing court . . . was empowered to
make payment of a fine a condition of probation even in the
circumstance where the crime is only punishable by imprisonment."
[Fn. 10] In so holding, this court implicitly found that the
$3,000 payment was a "fine,"even though the sentencing court did
not use the word "fine"in its order of probation. [Fn. 11]
C. Alaska Statute 08.54.605 Does Not Violate Boyd's State or
Federal Equal Protection or Due Process Rights.
Boyd argues that AS 08.54.605 violates the equal
protection clauses of the United States and Alaska Constitutions
because it denies license renewals to those convicted of violating
state, but not federal, hunting and guiding statutes. Yet the case
on which Boyd relies, Maeckle v. State, [Fn. 12] undermines his
equal protection argument. In Maeckle, the court of appeals held
that it was not discriminatory to impose more severe penalties for
guiding without a license than for practicing other professions
without a license. [Fn. 13]
Just as the Maeckle court rejected an attempt to identify
the relevant class for equal protection purposes as "persons
practicing their profession without a license,"we reject Boyd's
attempt to define the class as "persons convicted of hunting
offenses who arguably received a fine greater than $1,000." Those
convicted of violating state hunting and guiding laws, such as
Boyd, have committed a different crime than those convicted of
parallel federal offenses.
D. Under the Doctrine of Equitable Estoppel, Boyd Should
Have a Chance to Modify His SIS Conditions to Retain His License.
Boyd argues that the Division was estopped from rejecting
his application for license renewal because an assistant district
attorney assured Boyd that the $2,500 payment was not a "fine"
within the meaning of AS 08.54.605. To the extent that Boyd relied
on the assistant district attorney's comments in deciding not to
request modification of his sentence, we agree.
To invoke equitable estoppel against a state entity, a
party must show that: "(1) the governmental body assert[ed] a
position by conduct or words; (2) the private party act[ed] in
reasonable reliance thereon; (3) the private party suffer[ed]
resulting prejudice; and (4) the estoppel serves the interest of
justice so as to limit public injury."[Fn. 14]
We acknowledge that Assistant District Attorney Berry did
not have the authority to change the laws of Alaska as written; his
written assurances to Boyd did not alter the fact that Boyd's
payment is a "fine"under AS 08.54.605. [Fn. 15] Indeed, given
that Berry's statement referred to AS 12.55.035 rather than
12.55.100, it was not technically inconsistent with the Licensing
Commission's rejection of Boyd's renewal application.
Still, Berry's assurances to Boyd were not isolated
misstatements of the law; rather, they were made in direct response
to a request from Boyd's attorney that the District Attorney's
Office not oppose modification of Boyd's SIS conditions so that
Boyd would not lose his license. Berry communicated to Boyd's
attorney that such a modification was unnecessary because Boyd's
license would not be revoked because of the payment. Berry was the
assistant district attorney assigned to the case and, as such, had
authority to make statements with respect to the scope and
consequences of a plea agreement between the District Attorney's
Office and a defendant. [Fn. 16] The District Attorney's Office,
by way of Berry's statement, therefore effectively agreed that the
conditions of Boyd's SIS should not affect Boyd's license. To that
extent, Boyd reasonably relied on Berry's assurances in deciding
not to pursue the remedy he initially contemplated: a stipulated
modification of his SIS conditions.
Although the District Attorney's Office could not force
the Division to ignore sec. .605 as written, the office did have
authority to agree to a restructuring of Boyd's sentence that would
allow him to avoid the collateral consequences of sec. .605. To
Boyd the opportunity to seek modification of his SIS conditions
would be to contravene the intent of both Berry and the sentencing
court. During plea negotiations, both understood that Boyd would
forego only the spring 1997 bear hunt and that he would keep his
license unless he committed another offense within a three-year
If Boyd had known that his agreement with Berry would
have precluded him from renewing his license for five years, Boyd
could have requested a modification of the conditions of his SIS
under AS 12.55.085, which allows the sentencing court "at any time
during the period of probation"to "revoke or modify its order of
suspension of imposition of sentence."[Fn. 17] Because Boyd
detrimentally relied on Berry's statement, he should have the
opportunity to request that the sentencing court modify his SIS
conditions pursuant to AS 12.55.085. [Fn. 18]
Because we hold that Boyd's payment constitutes a "fine"
under AS 08.54.605, we AFFIRM that part of the superior court's
ruling. But because Boyd reasonably relied on the assistant
district attorney's statement that Boyd would not lose his license
based on his SIS conditions, we also hold that Boyd may request
modification of his SIS conditions pursuant to AS 12.55.085,
notwithstanding any statute of limitations otherwise imposed on
See AS 08.54.600.
See Nyberg v. University of Alaska, 954 P.2d 1376, 1378
(Alaska 1998) (citing Handley v. State, Dep't of Revenue, 838 P.2d
1231, 1233 (Alaska 1992)). Both parties agree that this appeal
raises questions of law that do not involve agency expertise.
Hammer v. City of Fairbanks, 953 P.2d 500, 504 (Alaska 1998)
(quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987)).
AS 08.54.605 denies license renewal to any person convicted of
"a state hunting, guiding, or transportation services statute or
regulation within the last five years for which the person was
fined more than $1,000 or imprisoned for more than five days. [Fn.
19]" AS 08.54.605 (emphasis added).
Although sec. .100 refers to "probation"rather than suspended
imposition of sentence, the latter necessarily entails that the
defendant be placed on probation. See AS 12.55.085.
See AS 12.55.086.
The sentencing judge's handwritten notation -- "fines
concurrent"-- on Boyd's sentencing hearing record is also
indicative of the court's understanding that Boyd was paying a
559 P.2d 107 (Alaska 1977).
See id. at 108.
Id. at 110.
Similarly, in Ashton v. State, 737 P.2d 1365 (Alaska App.
1987), the court of appeals held that the lower court had erred in
forcing a defendant to make a $2,100 payment as a special condition
of probation without considering the defendant's earning capacity.
See id. at 1365-66. The court noted that its holding would be the
same regardless of whether it characterized the payment as a "fine"
or as restitution. See id. at 1366. The court offered no third
alternative for how to characterize such a payment.
792 P.2d 686 (Alaska App. 1990).
See id. at 689.
Crum v. Stalnaker, 936 P.2d 1254, 1256 (Alaska 1997) (citing
Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988)).
"[T]he mere expression of an erroneous opinion on a matter of
law raises no estoppel."[Fn. 20] 28 Am. Jur. 2d Estoppel and
Waiver sec. 47 (1966).
Cf. Surina v. Buckalew, 629 P.2d 969, 980 (Alaska 1981)
(holding that assistant district attorneys act as "agents of the
state"when promising grants of immunity).
The record is unclear as to whether Boyd's probationary period
was two or three years. If it was for two years, it would have
expired on December 2, 1998. Although a defendant may normally
only request SIS modification during his probationary period, see
AS 12.55.085, the circumstances of this case justify tolling of the
period to allow Boyd to request modification. See Smith v.
Thompson, 923 P.2d 101, 105 (Alaska 1996) (allowing equitable
tolling when defendant has notice, did not suffer prejudice, and
when plaintiff acted reasonably and in good faith).
AS 08.54.605(a)(1)(A) (emphasis added).
Id. at sec. 47.