State v. Rice, s. 4777

• Decision Date: 10 April 1981
• Docket Number: 4778,Nos. 4777,s. 4777
• Citation: 626 P.2d 104
• Parties: STATE of Alaska, Petitioner, v. Wilder S. RICE and Cessna Finance Corporation, Respondents. CESSNA FINANCE CORPORATION, Cross-Petitioner, v. STATE of Alaska, Wilder S. Rice, and United Bank of Alaska, Cross-Respondents.
• Court: Alaska Supreme Court

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626 P.2d 104 STATE of Alaska, Petitioner,
v.
Wilder S. RICE and Cessna Finance Corporation, Respondents.
CESSNA FINANCE CORPORATION, Cross-Petitioner,
v.
STATE of Alaska, Wilder S. Rice, and United Bank of Alaska,
Cross-Respondents. Nos. 4777, 4778. Supreme Court of Alaska. April 10, 1981.

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Sarah Elizabeth Fussner, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner/cross-respondent, State of Alaska.

Wilder S. Rice, pro se.

James R. Peterson, Burr, Pease & Kurtz, Inc., Anchorage, for respondent/cross-petitioner, Cessna Finance Corp.

OPINION

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

RABINOWITZ, Chief Justice.

This petition for review considers important questions concerning mens rea in game regulations and issues of substantive and procedural due process as to security holders

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in the forfeiture of equipment for game violations.

Wilder Rice, a big game guide, and two clients of his were arrested and charged with killing a moose in violations of game regulations. More particularly, Rice and his co-defendants were charged with allegedly killing a moose the "same day airborne" in violation of 5 AAC 81.070(b)(6). ¹ Rice was also charged with transporting meat taken illegally in violation of 5 AAC 81.140(b). ² Acquitted on the first charges, Rice was convicted of illegal transportation and sentenced in December 1977 to thirty days in jail, a $500 fine, and forfeiture of a Cessna airplane used in committing the alleged offense.

Rice appealed his conviction to the superior court on several grounds, including contentions that the regulation was void for vagueness and that some form of intent must be implied in the regulation he was convicted of violating. Meanwhile, Cessna Finance, possessing a substantial security interest in the airplane, sought and was granted leave to intervene in the superior court proceedings, to plead violations of substantive and procedural due process in the forfeiture of the airplane without formal notice to it of the sentencing proceeding. The superior court overturned Rice's conviction and vacated the sentence, finding reversible error in the failure of the district court to instruct that the jury must find beyond a reasonable doubt that the defendant knew or should have known the moose meat was illegally taken. ³ The superior court also held that constitutional due process requires "that in order to forfeit a third party's interest in this aircraft or in any other particular item, that notice and an opportunity to be heard must be given." The state then filed the instant petition for review.

Pursuant to AS 16.05.195, ⁴ the state, on October 16, 1977, also filed a civil action in

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the superior court for damages against Rice and Reidt (one of the co-defendants) and for forfeiture of the airplane. On November 18, 1977, the state issued a notice of complaint for forfeiture which was sent to Cessna Finance. Cessna later moved for summary judgment on this action, asking, inter alia, that AS 16.05.195 be held unconstitutional as violating due process. The superior court denied the motion, concluding that there was no denial of substantive due process in the forfeiture proceedings. Cessna petitioned for review of this ruling.

The petitions were granted ⁵ and the cases consolidated. The first issue that must be considered is whether the superior court erred in requiring an element of mens rea in the offense for which Rice was convicted.

Rice was convicted of violating 5 AAC 81.140(b), which provides: "No person may possess or transport any game or parts of game illegally taken." Rice contended on appeal and the superior court agreed that there is an implied element of intent in this offense, and that the accused must have known, or reasonably should have known, that the game was illegally taken. The state on appeal to this court argues that such an element should not be implied.

During argument on jury instructions before the district court, Rice's counsel brought up the issue of scienter and, after discussion, specifically requested an instruction that in order to convict, the jury "must be satisfied that the person either knew, or reasonably should have known, that the game or parts of game were illegally taken." ⁶ The district court denied the requested instruction, and Rice was convicted.

This court has several times considered the question of whether a statute, which does not explicitly require criminal intent, implicitly requires it. The general position of the court was recently summarized in State v. Guest, 583 P.2d 836, 838 (Alaska 1978) (footnotes omitted):

We recognized in Speidel v. State, 460 P.2d 77 (Alaska 1969), that consciousness of wrongdoing is an essential element of penal liability. 'It is said to be a universal rule that an injury can amount to a crime only when inflicted by intention that conduct cannot be criminal unless it is shown that one charged with criminal conduct had an awareness or consciousness of some wrongdoing.' Id. at 78....

Our opinion in Speidel stated that there are exceptions to the general requirement of criminal intent which are categorized as 'public welfare' offenses. These exceptions are a rather narrow class of regulation, 'caused primarily by the industrial revolution, out of which grew the necessity of imposing more stringent duties on those connected with particular industries, trades, properties, or activities that affect public health, safety or welfare.' Speidel v. State, supra at 78. The penalties for the infraction of these strict liability offenses are usually relatively small and conviction of them carries no great opprobrium. Id. at 79.

The question is whether 5 AAC 81.140(b) is a public welfare regulation for which the

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omission of any requirement of criminal intent is valid. In Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978), we stated that such determinations are to be made on a case-by-case basis. It must be remembered that strict liability is an exception to the rule which requires criminal intent. Criminal statutes will be strictly construed to require some degree of mens rea absent a clear legislative intent to the contrary. Even when a statute, or a regulation, does not explicitly require any element of mens rea, we will scrutinize the statute or regulation to determine whether mens rea must be made part of the definition of the particular offense. ⁷

Strict liability offenses were originally considered in F. Sayre's classic article, Public Welfare Offenses, ⁸ in which he concluded that these offenses fell into certain limited categories. ⁹ Among these are "violations of general police regulations." ¹⁰ These encompass, as originally proposed by Sayre, fish and game regulations, ¹¹ and a number of fish and game regulations have been upheld on the theory of strict liability. ¹² Thus, the mere fact that the case at bar involves a fish and game regulation might perhaps be considered by some to be sufficient to justify characterization of the subject offense as a strict liability offense.

Nevertheless, we think that other concerns must also be considered. Fish and game regulations are not necessarily by their very nature immune from the requirement of mens rea. As we noted in Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978), a danger of unconstitutionality is a relevant concern in determining whether to construe intent into the regulation:

Finally, we note that in Campbell, we recognized the well-established rule of statutory construction that courts should if possible construe statutes so as to avoid the danger of unconstitutionality. We have alluded to this rule on many other occasions. It recognizes that the legislature, like the courts, is pledged to support the state and federal constitutions and that the courts, therefore, should presume that the legislature sought to act within constitutional limits. 2 Sutherland Statutory Construction, § 4509, at 326 (Horack

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3d Ed. 1943). (footnote and citations omitted)

The wording of the regulation under consideration, 5 AAC 81.140(b), is broad. It provides: "No person may possess or transport any game or parts of game illegally taken." Upon appeal to the superior court, Rice attacked the regulation as being void for vagueness. It is quite apparent from a reading of the transcript of the hearing before the superior court that the court was concerned with the broad applicability of the statute. It noted that, under the statute, if illegally taken game were found on board a commercial aircraft then the commercial airplane would also be subject to forfeiture. The seeming absurdity of the possible seizure of a commercial aircraft for shipping a piece of moose meat that would in no fashion reflect the fact that the moose was illegally killed no doubt had a persuasive impact on the superior court in reading an intent requirement into the regulation. By interpreting the regulation to embody a reasonable person standard in the phrase "knew or should have known," the superior court concluded that the regulation was not void for vagueness.

A recent treatment of a claim of void for vagueness is found in this court's opinion in Holton v. State, 602 P.2d 1228 (Alaska 1979). In Holton, we set forth three factors that are applicable in considering such a claim:

First, a statute may not be so imprecisely drawn and overbroad that it 'chills' the exercise of first amendment rights. The second consideration is that in order to be consistent with notions of fundamental fairness a statute must give adequate notice of the conduct that is prohibited. The final element in an analysis of statutory vagueness is whether the statute's imprecise language encourages arbitrary enforcement by allowing prosecuting authority undue discretion to determine the scope of its prohibitions. ¹³

The first is not applicable here, since the regulation does not concern...