Ostrosky v. State

• Decision Date: 02 August 1985
• Docket Number: No. A-206,A-206
• Citation: 704 P.2d 786
• Parties: Harold OSTROSKY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 786

704 P.2d 786

Harold OSTROSKY, Appellant, v. STATE of Alaska, Appellee.

No. A-206.

Court of Appeals of Alaska.

Aug. 2, 1985.

Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

This case raises the question of the extent to which a defendant can rely on mistake of law as a defense to a fish and game violation.

Harold Ostrosky and his two daughters were convicted of fishing without a valid limited entry permit in 1979. Ostrosky's daughters moved for post-conviction relief, contending that the Limited Entry Act violated equal protection. Judge Victor D. Carlson found the act unconstitutional and vacated the convictions on August 14, 1981. Ostrosky was allowed to join in the action, and his conviction was set aside on August 25, 1981. The state appealed. This court certified the case to the supreme court, and the supreme court accepted the case for decision.

On July 3, 1983, Ostrosky was fishing with a drift gill net in open waters off Naknek. Trooper Gary Folger, acting as a fish and wildlife protection officer, boarded Ostrosky's boat and checked it for fish. Despite Ostrosky's admission that he had no permit, the trooper did not arrest Ostrosky or try to stop him from fishing.

On July 7, 1983, while the state's appeal in Ostrosky's earlier case was still pending, the state filed an emergency request with the supreme court for a stay of the effect of Judge Carlson's ruling in that case, pursuant to Appellate Rule 504. The request alleged that "irreparable harm" would result if the stay were not granted, because Ostrosky had continued to fish the waters of Bristol Bay without a permit, creating a "serious potential for violence" in the area and "undermining the fishermen's confidence in the limited entry system." An affidavit from an assistant attorney general was attached in support of these charges. The request ended with this statement: "A stay of the Memorandum Decision is necessary to accord the Division of Fish and Wildlife Protection the necessary authority to arrest Mr. Ostrosky for violation of [the Limited Entry Act]." Chief Justice Edmond Burke, acting as a single justice, entered an order granting the stay pending the announcement by the supreme court of a decision in Ostrosky's case. The order states, "the intent of this order is to permit the continued enforcement of the Limited Entry Act pending this court's decision on the merits." On July 8, 1983, Trooper Folger cited Ostrosky for fishing without a permit on that date, for fishing without permit on July 3, and for illegal possession of salmon.

On July 19, 1983, the Alaska Supreme Court reversed Judge Carlson's ruling and upheld the Limited Entry Act. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), appeal dismissed, 467 U.S. 1201, 104 S.Ct. 2379, 81 L.Ed.2d 339, reh'g denied, 468 U.S. 1204, 104 S.Ct. 3572, 82 L.Ed.2d 871 (1984). After the supreme court's decision, Ostrosky filed a motion to dismiss in the present case alleging that, at the time he was charged with violating the Limited Entry Act, the Act had been declared unconstitutional in a case in which he was a party. Ostrosky argued that he was entitled to rely on Judge Carlson's ruling. Judge Carlson ruled that Ostrosky had no right to rely on his earlier decision and that by fishing, Ostrosky had taken the risk that the earlier decision would be reversed by the supreme court.

Ostrosky then asked the court to instruct the jury that reasonable reliance on a judicial decision was a defense to this prosecution. Judge Carlson denied this request. He also ruled that Ostrosky could not present testimony concerning reasonable reliance on a judicial decision since that testimony would be irrelevant. Ostrosky at this point made an offer of proof that he would testify that at the time he was fishing he believed that he was fishing legally. He represented that he relied on Judge Carlson's decision declaring the Limited Entry Act unconstitutional and that he had read an article in the Fisherman's Journal which reported that a magistrate in Kenai had also ruled that the Limited Entry Act was unconstitutional. He also indicated that after Judge Carlson's ruling declaring the Limited Entry Act to be unconstitutional, Ostrosky had talked to his attorney who had assured him that he would not be arrested for fishing without a permit during the 1983 season.

After Judge Carlson ruled Ostrosky's defense of mistake of law was irrelevant and that he would not give a jury instruction on this defense, Ostrosky agreed to a court trial on the condition that his objection to this ruling would be preserved for appeal. Ostrosky was convicted following a court trial. He now appeals to this court.

The defense of reasonable reliance on a statute or judicial decision is discussed in W. LaFave and A. Scott, Criminal Law § 47, at 366-67 (1972):

An individual should be able reasonably to rely upon a statute or other enactment under which his conduct would not be criminal, so that he need not fear conviction if subsequent to his conduct the statute is declared invalid. A contrary rule would be inconsistent with the sound policy that the community is to be encouraged to act in compliance with legislation. Thus, just as it is no defense that the defendant mistakenly believed the statute under which he was prosecuted to be unconstitutional, it is a defense that he reasonably relied upon a statute permitting his conduct though it turned out to be an unconstitutional enactment.

For essentially the same reason, the better view is that it is a defense that the defendant acted in reasonable reliance upon a judicial decision, opinion or judgment later determined to be invalid or erroneous. The clearest case is that in which the defendant's reliance was upon a decision of the highest court of the jurisdiction, later overruled, whether the first decision involved the constitutionality of a statute, the interpretation of a statute, or the meaning of the common law. A contrary rule, whereby the subsequent holding would apply retroactively to the defendant's detriment, would be as unfair as ex post facto legislation.

Under the majority view, reasonable reliance upon a decision of a lower court is likewise a defense. Thus, if the lower court has found a repealer statute constitutional, has declared the relevant criminal statute unconstitutional, or has enjoined enforcement of the statute, there may be a basis for reasonable reliance. However, in the case of lower court decisions there is more likely to arise a question of whether the reliance is reasonable. It has been suggested, for example, that reliance should not be a defense when it was known that the decision of the lower court was on appeal. [Footnotes omitted.]

We note also that the Model Penal Code provides for mistake of law as an affirmative defense. Section 2.04(3) of the Model Penal Code provides in part:

(3) a belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

....

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

Model Penal Code § 2.04(3) (Proposed Official Draft 1962).

There is little state law to guide us in defining when mistake of law is a defense. Apparently the only Alaska appellate court decision concerning a mistake of law based upon reliance on a judicial decision is Cleveland v. Anchorage, 631 P.2d 1073, 1083 (Alaska 1981). In that case the supreme court held that as a matter of law it was unreasonable for the defendants to rely on trial court decisions from another state to justify their conduct. Cleveland does not appear to be helpful in resolving the issue before us in this case.

We note that the revised criminal code, which appears to attempt to codify defenses to criminal acts, does not provide for a defense of mistake of law. AS 11.81.620(a) provides:

(a) Knowledge, recklessness, or criminal negligence as to whether conduct constitutes an offense, or knowledge, recklessness, or criminal negligence as to the existence, meaning, or application of the provision of law defining an offense, is not an element of an offense unless the provision of law clearly so provides. Use of the phrase "intent to commit a crime", "intent to promote or facilitate the commission of a crime", or like terminology in a provision of law does not require that the defendant act with a culpable mental state as to the criminality of the conduct that is the object of the defendant's intent.

The commentary to the code indicates that this section is intended to codify "the universal principal that ordinarily ignorance of the law is not a defense." In tracing AS 11.81.620(a) to the tentative draft of the Alaska Criminal Code prepared by the Alaska Code Revision Commission, Subcommission on Criminal Law, we discover that AS 11.81.620(a) is derived from Oregon Revised Statutes § 161.115(4) and that AS 11.81.620(b) is derived from New York Penal Law § 15.20(1). New York Penal Law § 15.20 provides for a defense of reasonable mistake of law. ¹ Therefore, it appears probable that the drafters of the revised criminal code were aware of the New York provision and did not include it in the revised criminal code. This could mean that the legislature did not intend to allow a mistake of law defense in the revised code. It could also mean that the legislature...