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STATE v. LAWLER6/21/1996
The state cited David B. Lawler for fishing with an undersized gillnet, in violation of 5 AAC 27.131(f). District Court Judge George L. Gucker dismissed the case, ruling that the former regulation defining the "stretched measure" method of determining net mesh size violated Lawler's right to due process. The state appeals, and we reverse.
The facts are undisputed. Lawler was fishing commercially for herring in the area where gillnets with a mesh size of less than two and one-fourth inches were prohibited under 5 AAC 27.131(f). Troopers measured Lawler's net after he pulled it from the water, found it to be under the minimum size, and cited him for fishing with an undersized gillnet.
Prior to trial, Lawler moved to dismiss the charge, arguing that the regulations governing measurement of minimum net mesh size were unconstitutionally vague. Under 5 AAC 39.105(c), the term "mesh size" refers to "stretched measure." "Stretched measure" is, in turn, defined in 5 AAC 39.975(11); at the time of Lawler's charge, this regulation provided:
"stretched measure" means the average length of any series of 10 consecutive meshes measured from inside the first knot and including the last knot when wet after use; the 10 meshes, when being measured, shall be an integral part of the net, as hung, and measured perpendicular to the selvages; measurements shall be made by means of a metal tape measure while the 10 meshes being measured are suspended vertically from a single peg or nail, under five-pound weight, except as otherwise provided in this title.
(Emphasis added.)
In moving to dismiss his charge as vague, Lawler did not deny that his net, as measured after fishing, was under the minimum size. Rather, Lawler maintained that, by defining "stretched measure" in terms of a net's mesh size "when wet after use," 5 AAC 39.975(11) left him only one way to accurately determine if his net was legal: by actually fishing with it and thereby incurring the risk of committing a violation. To support this argument, Lawler informed the court that two days before his citation was issued — when his net was still new — an Alaska State Trooper had checked the net for mesh size and had found it legal. Lawler maintained that, before fishing with the net, he could not have predicted that its mesh would be under the minimum size "when wet after use."
Judge Gucker found Lawler's argument persuasive and dismissed his case:
This court fails to see how a regulation, such as the one at hand, that cannot logically be complied with by the scrupulous could be rationally related to a legitimate governmental end. For a law to have its desired effect it must be complied with by citizens. This one cannot. The state has been unable to explain how a fisherman could conceivably obtain the measurement required by [former] 5 AAC 39.975(11) without placing himself in peril of violation, and the herring resource in peril of overfishing by use of undersize nets. No rational regulation requires a fisherman to "use" a gillnet prior to determining whether it is legal or not. Not even the scrupulous could comply with the regulation, and thus no rational relationship can be said to exist between this regulation and the management of the herring population.
The state then appealed.
A criminal statute is unconstitutional when it is "so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application." Fishing Vessel American Eagle v. State, 620 P.2d 657, 665 (Alaska 1980). The challenged definition of "stretched measure" plainly establishes a precise and accurate method for determining if a net meets the m
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