Waiste v. State
| Decision Date | 13 October 2000 |
| Docket Number | No. S-8068.,S-8068. |
| Citation | 10 P.3d 1141 |
| Parties | John WAISTE and George Ryan, Appellants, v. STATE of Alaska and Donald W. Bunselmeier, individually and in his official capacity, Appellees. |
| Court | Alaska Supreme Court |
Andrew M. Hemenway and Wm. Grant Callow, Anchorage, for Appellants.
Raymond M. Funk, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, and BRYNER, Justices.
John Waiste and George Ryan (collectively, Waiste) appeal a summary judgment that the State of Alaska does not owe them compensation for its ex parte seizure and retention of their fishing boat during a criminal prosecution and civil in rem forfeiture action based on a violation of fishing regulations. This appeal presents three principal issues. First, does due process require that the State, in every case in which it shows probable cause that a boat has been used in a fishing violation, either afford a hearing or show that exigent circumstances justify ex parte seizure? Second, do the forfeiture statutes permit the State, if it seizes a boat in connection with a criminal prosecution, to retain the boat after that prosecution ends in order to seek a civil forfeiture? And third, does the State's retention of a fishing boat between the end of the criminal prosecution and the dismissal of the civil forfeiture action constitute a compensable taking? We answer the first and third questions in the negative and the second in the affirmative; accordingly, the superior court's decision is affirmed.
On July 8, 1992, while Waiste was skippering the F/V CHRISTINA ROSE, several people saw him fish for salmon in closed waters at the mouth of Big Creek, in the Egegik district. An Alaska Department of Fish and Game investigation ensued. Assistant Attorney General (AAG) Lance Nelson, after consulting with officers of the Department of Public Safety's Division of Wildlife Protection, decided to have the boat seized. He acted in part on a mistaken belief that Big Creek was a salmon-spawning stream and that Waiste had thus committed the serious offense of "creek robbing." In an ex parte hearing on July 11, the State showed probable cause that the CHRISTINA ROSE had been used in illegal fishing and obtained a seizure warrant from the Naknek District Court. The State seized the boat that day, which was soon after the peak of the Egegik salmon run, and issued Ryan and Waiste misdemeanor citations.
Waiste moved at once for the boat's release on bond. On July 13 the superior court held a hearing in Anchorage; Waiste's counsel participated by phone. AAG Nelson opposed release on bond "because of the extremely egregious nature of the [creek-robbing] violation." The hearing was limited to the bond issue. On July 14 the court held a second hearing. Before that hearing, Nelson informed the court that he had erred in accusing Waiste of creek-robbing. Waiste claims that "the State continued to insist ... that the vessel should not be released on bond." Log notes for the second hearing, however, show that Nelson said that the State was willing to stipulate to a release on bond for fair market value. Waiste's counsel deemed this "extortion."
At the end of the second hearing, the court set bond at the boat's fair market value, $90,000. A seafood company held a preferred ship mortgage on the CHRISTINA ROSE of more than $90,000. Waiste affied that he could not post the bond, so he rented a substitute boat for the rest of the 1992 season; he further affied that he lost substantial profits. Waiste did not challenge the basis for the seizure in the hearings. The court had opined in the first hearing that, because it was a bond hearing, it would "not necessarily cover [the] same thing[s]" as a Criminal Rule 37(c) hearing, in which a property owner can contest the basis for a seizure.1 The court may have limited the hearings' scope because it was sitting in Anchorage and, at least in the first hearing, lacked access to both witnesses and a copy of the warrant. Waiste's counsel had also stressed the need for a quick ruling.
The State arraigned Waiste on July 15. It filed a civil in rem forfeiture complaint against the CHRISTINA ROSE on July 31. It agreed to delay Waiste's criminal trial until after the 1992 fishing season, and to hold the civil forfeiture action in abeyance until after the criminal trial. In September 1992 a jury acquitted Waiste of criminally negligent violation of fishing laws, but found him guilty of a strict-liability (quasi-criminal) violation.2
A 1992 set of forfeiture guidelines drafted by Nelson says that "[i]t has been the policy of the Attorney General's office" not to seek an in rem forfeiture if it seeks but fails to obtain an in personam forfeiture as part of a criminal sentence. In this case, the State could not obtain an in personam forfeiture as part of Waiste's sentence, for in personam forfeiture of a boat is not an authorized sanction for the strict-liability violation of which Waiste was convicted.3 Despite Nelson's guidelines, however, the State did not dismiss its in rem forfeiture action against the CHRISTINA ROSE.
Waiste answered the in rem forfeiture complaint on the CHRISTINA ROSE's behalf in February 1993. In April the CHRISTINA ROSE moved to lower her bond to $10,000; the State opposed. Sometime in May, AAG Nelson offered to stipulate to a dismissal and return of the boat, with each side to bear its own costs and fees. Waiste did not accept. On May 17 the court heard argument and lowered the bond to $80,000. On May 27 Waiste moved for summary judgment in the in rem action on double jeopardy grounds. On June 10 the State moved to dismiss its in rem claim with prejudice. Waiste did not oppose, but sought to preserve his rights to seek attorney's fees— which he was eventually awarded—and to make in personam claims against the State. The court dismissed the forfeiture claim with prejudice.
In July 1994 Waiste filed a complaint alleging, after amendment, federal and state constitutional violations and a common-law conversion claim. Defendants successfully moved for summary judgment. Waiste appeals.
We decide de novo how to construe the Alaska and federal Constitutions, and Alaska statutes, adopting rules of law that best reflect precedent, reason, and policy.4 We review summary judgments de novo. If there is no genuine dispute of material fact, we will affirm if the undisputed facts entitle the movant to judgment as a matter of law.5 Waiste does not claim a dispute of material fact, only that the State is not entitled to judgment as a matter of law. We view the facts in the best light for the nonmovant— here, Waiste—and draw all reasonable inferences in Waiste's favor.6
There are two periods in which the State may have violated Waiste's rights or taken his property without compensation. The first period is between the July 11, 1992, seizure and the July 14 postseizure hearing. Waiste argues that the ex parte seizure violated due process and is compensable as a taking, or subject to damages in a Bivens7-type claim, under the Alaska Constitution. The second period is between Waiste's September 1992 acquittal on the criminal charge and the State's June 1993 abandonment of its civil forfeiture action. Waiste advances three theories supporting his right to recover compensation or damages for that period: (1) the statute governing seizure of fishing gear required the State to return his boat at the end of the criminal case, making its retention thereof a conversion; (2) the State's pursuit of a forfeiture claim violated the Alaska Constitution's Double Jeopardy Clause; and alternatively, (3) even if the State did not violate Waiste's rights, it took his property by retaining his boat and owes him compensation therefor.
1. The Alaska Constitution's Due Process Clause allows the State, when it has probable cause to think that a boat has been used in a fishing violation, to seize the boat without prior notice or an adversarial hearing.
Waiste and the State agree that the Due Process Clause of the Alaska Constitution requires a prompt postseizure hearing upon the seizure of a fishing boat potentially subject to forfeiture. The question is thus narrowed to whether a preseizure hearing is due.8
Waiste argues that (1) federal precedent leaves unclear whether the federal Due Process Clause allows a government in all cases to seize a fishing boat without prior notice or hearing; (2) suggestions in this court's precedent that the State may do so were dicta; (3) we interpret Alaska's Due Process Clause more broadly than its federal counterpart; (4) therefore, the ex parte seizure in this case violated Alaska's Due Process Clause. The State argues that a prompt postseizure hearing is the only process due, both under general constitutional principles and under this court's precedents on fishing-boat seizures, whose comments were not dicta.9
The baseline for our inquiry is simple: "We have consistently held that, except in emergencies, due process requires the State to afford a person an opportunity for a hearing before the State deprives that person of a protected property interest."10 Waiste claims that due process requires the State to show an emergency in each individual case before it makes an ex parte seizure; any "categorical approach" would violate due process. This cannot be true. There are categories of cases in which seizures without prior notice or an adversarial hearing—i.e., seizures after an ex parte warrant hearing— are always permissible. An obvious example is the seizure of evidence in criminal investigations.11 But Waiste's claim is helpful if read thus: even if the public interest in a class of cases will justify ex parte seizure...
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State v. Jouppi
...of Article I, Section 11 of the Alaska Constitution. Resek v. State , 706 P.2d 288, 293 (Alaska 1985).Thus, in Waiste v. State , 10 P.3d 1141, 1153–54 (Alaska 2000), the supreme court held that, under the statutes authorizing the forfeiture of fishing vessels used in connection with violati......