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Alaska v. Dutch Harbor Seafoods (10/16/98), 965 P 2d 738


     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) 264-0607, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA,              )
                              )    Supreme Court No. S-6919
             Petitioner,      )
                              )    Court of Appeals No. A-5642
     v.                       )
                              )    District Court No.
DUTCH HARBOR SEAFOODS, LTD.,  )    3KO-S94-319 Cr.
                              )
             Respondent.      )
______________________________)
STATE OF ALASKA,              )
                              )    District Court No.
               Petitioner,    )    3KO-S94-321 Cr.
                              )
     v.                       )    OPINION ON REHEARING
                              )
TRIDENT SEAFOODS CORP.,       )    [No. 5042 - October 16, 1998]
                              )
               Respondent.    )
______________________________)


          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the District Court of the
State of Alaska, Third Judicial District, Kodiak, Donald D.
Hopwood, Judge.


          Appearances:  W.H. Hawley, Assistant Attorney
General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for
Petitioner.  Joel H. Bolger, Jamin, Ebell, Bolger & Gentry, Kodiak,
and Walter W. Mason, Jamin, Ebell, Bolger & Gentry, Seattle, for
Respondents.


          Before:  Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.  


          MATTHEWS, Justice.
          COMPTON, Chief Justice, dissenting.
          The question presented in these consolidated cases is
whether entities charged with strict liability commercial fishing
violations are entitled to a trial by jury. [Fn. 1]  We answer this
question in the negative.  Such violations are minor offenses which
do not fall within established standards for determining whether a
criminal jury trial is required.  Cases prosecuting such violations
are nonetheless criminal rather than civil in nature; therefore a
civil jury trial is not required.
I.   Procedural Setting
          Respondents Dutch Harbor Seafoods, Ltd. and Trident
Seafoods Corp. were charged with strict liability commercial
fishing violations under AS 16.05.722(a).  Specifically, they were
charged with unlawful failure to register vessels within
registration area "J"before operating trawl gear, in violation of
5 AAC 28.020(a) and (c), [Fn. 2]  and  with unlawful  possession of
fishtaken by an unregistered vessel in violation of 5 AAC 39.197. [Fn.
3]
          Respondents moved for trial before a jury, arguing that
they were entitled to a jury trial under article I, sections 11 and
16 of the Alaska Constitution. [Fn. 4]   At oral argument
respondents asserted that the State would be seeking a forfeiture
of some $158,000 from Trident and $110,000 from Dutch Harbor,
representing in each case the value of the fish on board.  The
State did not dispute the substance of this assertion. 
Respondents' motions were granted.
          The State petitioned the court of appeals for review of
this ruling; the petition was denied.  The State then petitioned
this court for hearing.  We granted the petition.
II.  Alaska Statute 16.05.722 Described
          One who is accused of violating commercial fishing
regulations may be charged either with a "violation"under AS
16.05.722, [Fn. 5] or with a misdemeanor under AS 16.05.723. [Fn.
6]  Guilt under subsection .722(a) does not require any culpable
mental state; punishment is by a fine of not more than $3,000 for
a first conviction and $6,000 for a second or subsequent
conviction.  A person guilty of a violation under subsection
.722(b) may also be ordered to forfeit fish, or the fair market
value of fish, taken as a result of the commission of the
violation.  Subsection .722(c) expressly provides that one who is
charged with a violation is not entitled to a trial by jury.  By
contrast, when a misdemeanor is charged under section .723, a
culpable mental state of at least negligence must be proven;
punishment is by a fine of not more than $15,000 or by imprisonment
for not more than one year, or by both.  A misdemeanor conviction
can carry with it an order for forfeiture of illegally caught fish
or their fair market value as in section .722, and the forfeiture
of the vessel and gear.  Enhanced fines are also imposed in certain
circumstances under subsections .723(b) and (c).  A jury trial is
available to persons charged under section .723.
III. Article I, Section 11 of the Alaska Constitution Does Not
Apply

          Article I, section 11 of the Alaska Constitution applies
only to "criminal prosecutions."  The question here is whether a
strict liability commercial fishing violation comes within the
meaning of this term.
          In Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska
1970), we discussed the meaning of the term "criminal prosecu-

tions."  We stated that the term includes (1) offenses in which a
direct penalty may be incarceration, (2) offenses which may result
in the loss of a valuable license as punishment, and (3) offenses
which, even if incarceration is not a possible punishment, still
carry a connotation of criminality.  With respect to the last
factor, we noted that a heavy enough fine may carry such a
connotation:  
               In extending the right to jury trial, we
define the category of "criminal"prosecutions as including any
offense a direct penalty for which may be incarceration in a jail
or penal institution.  It also includes offenses which may result
in the loss of a valuable license, such as a driver's license or a
license to pursue a common calling, occupation, or business.28  It
must also include offenses which, even if incarceration is not a
possible punishment, still connote criminal conduct in the
traditional sense of the term.29
 
               Excluded from the requirement of jury
trial are such relatively innocuous offenses as wrongful parking of
motor vehicles, minor traffic violations, and violations which
relate to the regulation of property, sanitation, building codes,
fire codes, and other legal measures which can be considered
regulatory rather than criminal in their thrust, so long as
incarceration is not one of the possible modes of punishment.[ [Fn.
7]]
          ______________________________________________

          28   This does not cover revocation of
licenses pursuant to administrative proceedings where lawful
criteria other than criminality are a proper concern in protecting
public welfare and safety, as the basis of revocation or suspension
in such instances is not that one has committed a criminal offense,
but that the individual is not fit to be licensed, apart from
considerations of only guilt or innocence of crime.
 
          29   A heavy enough fine might also indicate
criminality because it can be taken as a gauge of the ethical and
social judgments of the community.

Id.
          Applying the Baker three-part test, strict liability
commercial fishing offenses do not entail incarceration as a direct
penalty.  The loss of a valuable license will not result from a
finding that such offenses have been committed.  Thus, only the
third part of the test is involved.  Is there a connotation of
criminal conduct which is carried by conviction of a strict
liability commercial fishing offense, either based on the nature of
the offense or the size of the fine? [Fn. 8]
          As to the nature of the offense, because strict liability
offenses do not require a culpable mental state there is nothing
inherent in a conviction which connotes traditional criminal
conduct.  See Resek v. State, 706 P.2d 288, 292 (Alaska 1985)
(explaining that forfeiture action is not a criminal prosecution
within meaning of article I, section 11 because the owner of
forfeited property may not be criminally culpable).  Moreover, in
classifying and in defining "violations"within the criminal code,
the legislature has classified "violations"as offenses "which
characteristically involve conduct inappropriate to an orderly
society but which do not denote criminality in their commission,"
AS 11.81.250(a)(6), and defined a "violation"as a "noncriminal
offense [such that] conviction of a violation does not give rise to
any disability or legal disadvantage based on conviction of a
crime,"AS 11.81.900(b)(58).
          With respect to the size of the fine, it is our view that
a maximum fine of $3,000 for a first offender, or $6,000 for a
repeat offender, does not in itself connote criminality in the
context of the highly regulated multi-million dollar fishing
industry.  See State v. O'Neill Investigations, Inc., 609 P.2d 520,
538 (Alaska 1980) (plurality opinion) (holding that $5,000 civil
fine assessable for unfair or deceptive bill collection practice
does not render proceedings criminal prosecutions, as those found
guilty will not suffer severe collateral consequences such as
curtailment of future economic opportunities or substantial social
opprobrium).
          To be considered along with the fine is the possibility
that the fish, or the value of the fish, caught by a vessel while
committing a fishing violation will be forfeited.  As this case
illustrates, sometimes the amount which may be forfeited is
substantial.  Does a substantial forfeiture connote criminality? 
Resek gives a negative answer.  Subject to forfeiture in Resek were
five automobiles, thirty-five ivory carvings, and $16,500 in
jewelry and cash.  See 706 P.2d at 290.  We held that forfeiture of
these items would not be "equivalent to the imposition of a fine so
heavy that it indicates criminality."  Id. at 291.  We noted:
          [T]he forfeiture law does not attempt to
tailor the amount of loss suffered through a forfeiture to the
degree of culpability -- to fit the "punishment"to the crime.  The
forfeiture penalty may be high for some, and negligible or
nonexistent for others who are as deserving or even more deserving
of criminal punishment.

               We recognize that application of the for-
feiture laws can result in severe loss to a
property owner, and that there clearly is a punitive component to
the forfeiture laws.  Nonetheless, the absence of a correlation
between the culpability of the property owner and the size of the
penalty indicates that the legislature had additional aims in mind.

Id. at 292 (footnotes omitted).  We went on to discuss the remedial
nonpunitive purposes of a forfeiture, including, relevant to this
case, its deterrent effect and the need to deny profitability to
law-breaking activity.  See id. 
          Some of the property forfeited in Resek was property used
in the commission of crimes, and some of the property represented
the proceeds of criminal activity.  Forfeitures of property used in
the commission of crimes are more punitive in nature than proceeds
forfeitures.  A fisherman who must give up his catch is roughly in
the position that he was in before he began fishing illegally.  A
fisherman who must give up his catch and his vessel and gear is in
a much worse position.  Alaska Statute 16.05.722 permits only
proceeds forfeitures.  Its purpose is "to prevent violators from
profiting in any way from their illegal catch."  McCann v. State,
817 P.2d 484, 486 (Alaska App. 1991).  For this reason the absence
of a connotation of criminality is clearer in this case than in
Resek. 
          Moreover, the size of a proceeds forfeiture is dependent
solely on the amount of the proceeds and does not reflect a
judicial or legislative judgment as to the nature of the conduct of
the defendant.  Therefore, the fact that the amount of such a
forfeiture may be substantial is not suggestive of criminality. 
          We thus conclude that strict liability commercial fishing
violations are not criminal prosecutions under article I, section
11 of the Alaska Constitution and, therefore, no jury trial is
required under that section. [Fn. 9],  [Fn. 10]

IV.  Article I, Section 16 of the Alaska Constitution Does Not
Apply

          Article I, section 16 of the Alaska Constitution
preserves the right to jury trial to the same extent as it existed
at common law "[i]n civil cases where the amount in controversy
exceeds two hundred and fifty dollars."  The strict liability
commercial fishing violation statute provides for forfeitures and
fines which exceed this monetary threshold.  However, we conclude
that prosecutions of violations are not "civil cases."  Instead,
they are minor criminal cases.
          On rehearing, the State argues that article I, section 16
does not apply because proceedings to establish strict liability
commercial fishing violations are not civil cases within the
meaning of section 16.  The State argues that such proceedings are
quasi-criminal.  The State contends that this category encompasses
proceedings which are criminal in nature but in which the potential
punishment does not rise to a level requiring a jury trial under
the Baker three-part test.  Such proceedings are not civil, the
State argues, because they are enforced under the rules governing
criminal cases.
          In response, the respondents argue that a violation is
necessarily either a criminal prosecution within the meaning of
article I, section 11, or a civil case within the meaning of
article I, section 16.  They contend that these categories are
comprehensive and that there is not a third category which is
neither criminal nor civil.  Respondents also contend that these
are civil cases because the punitive aspects of AS 16.05.722 are
similar to civil penalties.  They cite Tull v. United States, 481
U.S. 412 (1987), in which the Supreme Court of the United States
recognized a right to a jury trial under the Seventh Amendment in
a civil penalty case.  Finally, the respondents note a number of
cases from other jurisdictions using the term "quasi-criminal"in
which courts have extended certain protections afforded criminal
defendants, including the right to jury trial, to ostensibly civil
proceedings.
          In our view the State has the better of the argument.  In
State v. Clayton, 584 P.2d 1111 (Alaska 1978), the issue presented
was whether criminal procedures were available for the enforcement
of traffic infractions. [Fn. 11]  Judge Clayton had issued an order
quashing all arrest warrants which had been issued to defendants
who had failed to appear or to satisfy fines in traffic cases.
Judge Clayton's reasoning was that since an infraction is not a
criminal offense it was necessarily civil.  He wrote: "Being non-
criminal an infraction is thus civil in nature.  It logically
follows that the ordinary criminal procedures are unavailable for
the enforcement of infractions."  Id. at 1112.  
          We concluded that infractions were quasi-criminal and
reversed, holding that "the criminal procedures of enforcement are
applicable to traffic infraction cases."[Fn. 12]  Id. at 1115.  In
amplifying this conclusion we noted that the statute defining
infractions 
          makes no changes in the traditional mode of
proceeding in criminal matters with the exception of its
declaration that a person cited with an infraction does not have a
right to trial by jury or to court-appointed counsel.  The action
is brought in the name of the state; it is commenced by the filing
of a complaint by a law enforcement official; it is prosecuted by
the district attorney.  The exceptions appear to merely codify
existing constitutional law [citing Baker].  Moreover,
notwithstanding the legislative labeling of a traffic infraction a
non-criminal offense by  AS 28.35.230, it retains many criminal
terms:  [noting the terms "convicted,""guilty,"and "punishable by
a fine not to exceed $300."].

               The legislature has created a class of
quasi-criminal offenses which, while they are not serious, are to
be disposed of within the criminal justice system.  Such hybrid
actions are not uncommon in the American legal system. 

Id. at 1113-14 (emphasis added).
          While Clayton did not involve the question whether those
accused of traffic infractions were entitled to a civil jury under
article I, section 16, and thus is not directly controlling, it is
nonetheless significant.  It highlights the fact that the proce-

dures used in cases like the present are importantly different from
the procedures used in civil cases.  Criminal procedures related to
adjudication, as distinct from enforcement, are more favorable to
defendants than the procedures used in civil cases.  For example,
the State must prove its case beyond a reasonable doubt, rather
than by a preponderance or clear and convincing evidence; under the
criminal rules there must be an evidentiary hearing on the question
of guilt, whereas the State could obtain a summary judgment in
appropriate cases if the civil rules were used; a defendant's
discovery obligations are more limited under the criminal rules
than under the civil rules; and the State may not appeal when it
loses.  These advantages demonstrate that there is a substantial
difference between cases conducted using criminal and civil
procedures.
          The respondents' point that there is no third category of
cases which are neither criminal nor civil has force.  They argue
that if it were possible to create such a category, the jury trial
rights encompassed in sections 11 and 16 of article I could be
severely compromised.  However, the answer to this contention is
that there is no third category of cases.  As used in Clayton, the
term "quasi-criminal"encompasses minor offenses which are criminal
rather than civil in nature but do not meet the Baker test for the
right to jury trial.   
          The respondents' argument that the fine under AS
16.05.722 is similar to fines which may be contained in statutes
providing for civil penalties is correct insofar as it focuses on
the similarity of fines and civil penalties, both in their impact
on defendants and their purposes.  The primary distinction between
a civil penalty and a section .722 fine, however, lies in the
different procedures which must be employed before the respective
sanctions may be imposed.  A fine may be assessed only after the
State successfully prosecutes a case under the applicable criminal
procedures and rules, see AS 12.80.040; State v. Clayton, 584 P.2d
1111 (Alaska 1978), whereas a civil penalty follows a successful
civil action, see Tull v. United States, 481 U.S. 412, 418-19
(1987).  Given the different rights available to defendants under
these different procedures, this is a distinction of substance. 
          Finally, the respondents correctly note that the term
"quasi-criminal"has been used in a variety of contexts, oftentimes
when courts bestow some protections afforded criminal defendants in 
civil proceedings.  This court referred to forfeiture proceedings
as "quasi-criminal"in holding that property owners have an
immediate right to contest a vessel seizure.  See F/V Am. Eagle v.
State, 620 P.2d 657, 667 n.25 (Alaska 1980).  Other courts have
referred to proceedings as "quasi-criminal"in granting a right to
jury trial in paternity actions, see B.J.Y. v. M.A., 617 So. 2d
1061, 1063-64 (Fla. 1993), and in applying the exclusionary rule to
civil penalty proceedings under a drug tax act, see Simms v.
Collection Div. of the Utah State Tax Comm'n, 841 P.2d 6, 14-15
(Utah 1992).
          Given the many contexts in which the term "quasi-
criminal"has been used, it is not surprising that it does not
uniformly signal that each case so characterized must fall on the
criminal rather than the civil side of the docket.  That, however,
is the effect of the term as used in Clayton.  Respondents'
argument that "quasi-criminal"has different meanings in different
contexts does not cast doubt on what the term meant in Clayton.
          Clayton recognized that, regardless of the legislative
designation of such offenses as noncriminal, violations and
infractions are minor criminal offenses in substance and are to be
enforced and adjudicated using criminal procedures.  Our opinion
today adheres to the same principle.  Violations are tried using
criminal procedures.  Such cases are substantively criminal
prosecutions, albeit for minor offenses falling outside the scope
of the jury trial right under article I, section 11 of the Alaska
Constitution.  Since violations are criminal rather than civil
cases, article I, section 16 does not apply to them. 
V.   Conclusion
          For the reasons stated above, the order of the district
court granting jury trials to the respondents is reversed and this
case is remanded for further proceedings consistent with this
opinion.
          REVERSED and REMANDED.   

COMPTON, Chief Justice, dissenting.  
          This case seems to present the question whether a
potential forfeiture worth hundreds of thousands of dollars makes
a proceeding a "criminal prosecution,"a "civil case,"or a new,
third type of case.  The first two answers would entail a right to
jury trial; the third would be a major development.  But the court,
after some definitional gymnastics, reaches an innovative alternate
answer by extending a hitherto-dormant, twenty-year-old opinion. 
It concludes that the proceeding is neither a civil case, nor a
criminal prosecution, nor a new, third type of case.  Instead, it
concludes, a forfeiture of hundreds of thousands of dollars' worth
of fish is most closely analogous to a traffic ticket.  Because I
find this analogy unpersuasive, I dissent.
          The court (1) isolates the statutory fine from the
forfeiture; [Fn. 1] (2) quickly dismisses the former, which is
$3,000 $6,000, as basically de minimis "in the context of the
highly regulated multi-million dollar fishing industry"; [Fn. 2]
(3) concludes that the potential forfeiture does not make the
proceeding a "criminal prosecution"because it is not a "'heavy
enough fine'"to "'connot[e] criminality'"; [Fn. 3] and (4) holds
that this is not a "civil case,"since defendants still have other 
criminal procedural protections. [Fn. 4]  I disagree with all four
steps.

I.   Criminal Proceeding Analysis
     A.   Neither Resek nor General Principles Adequately Support
the Conclusion That the Potential Forfeiture Does Not Make the
Proceeding at Issue a "Criminal Prosecution."     

          We held in Resek v. State that a civil in rem proceeding
to forfeit conveyances used in, and proceeds of, drug trafficking
was not a "criminal prosecution"for constitutional purposes. [Fn.
5]  I dissented from that opinion and still think it incorrect.
[Fn. 6]  But given that precedent, the first step in deciding
whether this case involves a "criminal prosecution"is to compare
it to Resek.  The court argues that this proceeding is less of a
"criminal prosecution"than that in Resek.  If so, then even if
Resek was wrongly decided, the court may be right in this case.  I
believe, however, that this case involves more of a "criminal
prosecution"than Resek, and that we can distinguish that case and
should find a right to jury trial.   
          1.   The fact that the proceeding at issue may yield a
proceeds forfeiture does not make it less of a "criminal
prosecution"than that in Resek.

          The question that we must answer is who must decide
whether a fisher charged with violating AS 16.05.722 in fact did so
-- a judge or a jury.  The court's key point is that the potential
forfeiture in this proceeding makes it less like a criminal
prosecution than that in Resek, which partly involved a forfeiture
of property used in committing crime, because the fish are but
"proceeds of criminal activity."[Fn. 7]  Their forfeiture is less
"punitive in nature"than a forfeiture of property used to commit
a crime. [Fn. 8]  It serves only "'to prevent violators from
profiting in any way from their illegal catch,'"and leaves them
"roughly in the position [they were] in before [they] began fishing
illegally."[Fn. 9]
          The plainest problem with this reasoning is that, unless
we have dispensed with the presumption of innocence, it is
circular.  Taking away an "illegal catch"-- i.e., "the proceeds of
criminal activity"-- from "violators"who have been "fishing
illegally"is of course not punitive, but restitutionary; its point
is less to punish or deter than to prevent unjust enrichment. [Fn.
10]  I can accept that part of the court's analysis.  What I cannot
accept is the implicit assumption that the legislature, in denying
the right to a jury trial for fishing violations prosecuted under
AS 16.05.722, also tacitly dispensed with the presumption of
innocence in such cases, and the court's willingness to embrace
that notion.  
          If we must presume innocence in the brave new world of
"quasi-criminal,"strict-liability offenses with six-figure
sanctions, then the court's reasoning is circular.  In order for a
forfeiture to be restitutionary, it must be true that the fisher
caught the fish illegally.  But that is precisely the question that
either a judge or jury must answer.  To begin by presuming that the
answer is "guilty,"and then decide who should ask the question, is
rather to rig the inquiry.  This, essentially, is the court's
analysis:  Given our assumption that you are guilty, the fish that
we intend to take from you are just fish that you caught illegally,
so taking them away is not punitive.  Since taking them away from
you is not punitive, you have no right to have a jury decide if you
are guilty of illegally catching them.
          Another problem is the court's uncritical acceptance of
McCann's declaration that forfeiture leaves fishers in "roughly"
the position they were in before a violation.  This is patently
wrong, as we learned in Millman v. State. [Fn. 11]  A fisher is not
permitted to offset operating costs from the value of the fish
taken.  Thus a fisher who spends thousands of dollars in operating
costs preparatory to an opening and catches $100,000 worth of fish,
which are then forfeited because of a strict liability violation,
is not left in "roughly"the position he or she occupied before the
forfeiture.  Not only has the fisher not "profited,"the fisher has
lost the thousands of dollars in operating costs.  This is in
addition to the fine and the value of the forfeiture.    
          The court's assessment of the potential sanction
necessarily presumes that each person charged under AS 16.05.722 is
in fact guilty.  But if we presume that a fisher is innocent until
proven guilty, then the fish are presumptively the fisher's lawful
property until such proof.  They are analytically indistinct from
other property whose deprivation -- to the tune of $158,000 or
more -- would be a heavy enough fine to connote criminality.
          If the State wants a court to treat the fish as if they
were illegally caught, it must do one of two things.  It can employ
a criminal proceeding and offer evidence to overcome, in each case,
the presumption of innocence.  Or it can seek a forfeiture in a
civil in rem proceeding, in which there is no presumption of
innocence, but in which the defendant would have a right to jury
trial when the value of the fish exceeds $250.
          The court's explanation of why "the absence of a
connotation of criminality is clearer in this case than in Resek"
[Fn. 12] is thus logically unsound.  The question then becomes
whether this proceeding is more like a criminal prosecution than
that in Resek.
          2.   The proceeding at issue is more of a "criminal
prosecution"than that in Resek.

          Resek held that a civil in rem forfeiture of conveyances
used and profits made in drug trafficking was not a "criminal
prosecution."[Fn. 13]  But that case fundamentally differs from
this one; the proceeding was expressly "civil."  The alternative to
finding a de facto "criminal prosecution"-- i.e., agreeing with
the legislature that the case was "civil"-- was undisputed, and
did not entail denying a constitutional claim to a trial by jury. 
The forfeiture statute at issue denied jury trials, [Fn. 14] and
Resek apparently did not challenge that denial.  In this case, the
court obviously recognizes that, as we held before rehearing, a
jury trial must be available here if this qualifies as a "civil
case"under article I, section 16 of our Constitution.
          Resek stressed that the "issue is really one of
legislative intent"and found that "the nature of the forfeiture
penalty clearly indicates that it was intended as a civil, not a
criminal, sanction."[Fn. 15]  We noted that "[f]ederal courts
interpreting the forfeiture law . . . [that was] the model for
Alaska's statute[] have also concluded that such an action is not
so punitive in either purpose or effect as to negate the
Congressional preference for the civil label."[Fn. 16]  In this
case, of course, there is no "[legislative] preference for the
civil label"to honor -- if there were, Dutch Harbor and Trident
would be all too happy to have us honor it.
          Beyond deference to legislative intent, which is not
relevant here, Resek advanced two reasons not to find in rem
forfeiture so punitive in fact as to belie its "civil"label.  They
were the breadth of the conduct sanctioned, and the legislature's
failure to tailor the sanction to the degree of culpability. [Fn.
17]
          Under the statute in Resek, an owner could forfeit her
property without being "criminally culpable for the illegal use to
which [it is] put,"by "merely facilitat[ing] the crime, however
passively, as long as [she] had reason to know of its commission."
[Fn. 18]  An accomplice must intentionally encourage or assist the
crime. [Fn. 19]  Resek indicates that, if one may suffer a penalty
without having the mens rea required for criminal liability, then,
all other things being equal, a proceeding to impose the penalty is
not a criminal prosecution.
          This factor seems to support the State here.  Dutch
Harbor and Trident may be even less "criminally culpable,"in terms
of the traditional intent element, than Resek's hypothetical
property-owner: AS 16.05.722 imposes strict liability.  But because
fishing is a heavily regulated industry, this factor actually
supports Dutch Harbor and Trident.  This court said in State v.
Hazelwood that it will countenance strict-liability crimes in
"heavily regulated industries,"for "malum in se offense[s],"and
for violations of "regulations which call for only a modest fine."
[Fn. 20]  Dutch Harbor and Trident do not raise the issue, but the
reason that AS 16.05.722 is constitutional despite its lack of a
mens rea requirement must be that fishing is a heavily regulated
industry.           This case is thus unlike Resek's hypothetical,
in which  the property-owner did not have the relevant mens rea for
criminal liability.  That suggested that the forfeiture she faced
was not a "criminal prosecution."  Here the fish-owners do have the
mens rea needed for criminal liability, so there is no reason to
think that the forfeitures they face do not make this a "criminal
prosecution."
          Resek's second factor was that "the forfeiture law [did]
not attempt to tailor the amount of loss suffered . . . to the
degree of culpability -- to fit the 'punishment' to the crime."
[Fn. 21]  The court's comment on tailoring contradicts its comment
on punishment.  On the latter, it says that a proceeds forfeiture
is less punitive than an instrumentality forfeiture, because it
leaves a fisher "roughly in the position he was in before he began
fishing illegally."[Fn. 22]  But then it says, as to tailoring,
that "the size of a proceeds forfeiture is dependent solely on the
amount of the proceeds and does not reflect a judicial or
legislative judgment as to the nature of the [defendant's]
conduct."[Fn. 23]  In fact, a proceeds forfeiture is, unlike an
instrumentality forfeiture, inherently tailored to fit the crime,
as the court's initial comment about the fisher's "position"shows. 
We can recast its correct-but-unhelpful comment that "the size of
a proceeds forfeiture is dependent solely on the amount of the
proceeds"as follows: the size of a proceeds forfeiture depends
solely on the extent of the crime.  A proceeds forfeiture precisely
undoes the crime; a more closely tailored sanction is hard to
imagine.
          Of Resek's three reasons for finding no "criminal
prosecution,"the dominant one, deferring to a "civil"label, is
irrelevant to this case, and the subsidiary reasons of mens rea 
and tailoring both suggest that this is a "criminal prosecution."
          Looking past Resek, I note the vital factor of history. 
Unlike ownership of lawful property that happens to be used in a
drug crime, illegal fishing has long been a crime subject to
"criminal prosecution."  By focusing only on the severity of the
sanction, the court ignores what Baker is really about.  In later
opinions glossing Baker's holding, we have foregrounded that
opinion's comment about "a heavy enough fine."[Fn. 24]  But that
comment was in fact a footnote. [Fn. 25]  It elucidated our real
concern in holding that the Warren Court had not expanded the right
to jury trial far enough; [Fn. 26] we meant to define "criminal
prosecutions"expansively.  We did not erect a "heavy enough fine"
rule as a demanding threshold to bar further expansion of a narrow
right to jury trial; we made it one example of several principled
lines along which we meant to expand the right beyond its historic
and contemporary federal scope.  We appended the "heavy enough
fine"footnote to our holding that "the category of 'criminal'
prosecutions . . . must also include offenses which, even if
incarceration is not a possible punishment, still connote criminal
conduct in the traditional sense."[Fn. 27]  It is hard to imagine
what more obviously and centrally "connote[s] criminal conduct in
the traditional sense of the term"than conduct that has
traditionally been a crime.  
          Baker extensively discussed the role of history in
defining the right to jury trial. [Fn. 28]  Its thrust was to
reject the argument, accepted by the United States Supreme Court,
that the common-law history of "petty"offenses triable without
jury defines an implied exception to the jury-trial guarantees in
the federal and Alaskan Constitutions. [Fn. 29]  We noted that the
United States Supreme Court has "only rarely and for rather
trifling offenses"denied the right to jury trial. [Fn. 30]  We
nonetheless found history an incoherent and inadequately generous
guide. [Fn. 31]  The "argument from expediency"that justified past
denials of the right to jury trial may have been valid "when the
abilities of government were limited to the needs and financial
capabilities of an agrarian or early industrial society,"[Fn. 32]
but "what was practical historically is not necessarily adequate to
the needs of our times."[Fn. 33]  We held that "fundamental
fairness . . . requires an extension of procedural safeguards . .
. to an area of crimes once deemed outside the pale of protection."
[Fn. 34]  
          Read as a whole, Baker plainly did not set out a strict
three-factor test that defendants so bold as to seek a jury trial
must satisfy in the face of a presumption that we construe the
right narrowly.  By treating Baker as only a three-factor test, the
court turns the opinion on its head, converting three examples of
our desire to expand the right to jury trial into three walls to
cabin it.  The court's failure to mention history illustrates this
consequence of ignoring most of Baker.  That opinion carefully
rejected the idea that we should limit the category of "criminal
prosecutions"to those historically deemed "serious offenses."  It
is amazing that, in applying Baker, we could countenance the
reclassification of what has historically been a crime subject to
"criminal prosecution"into a "quasi-criminal"offense without even
noting that history favors a right to a jury.
          In Brown v. Multnomah County District Court, the Oregon
Supreme Court considered a legislative attempt to reclassify as a
civil "traffic infraction"a first offense of driving under the
influence. [Fn. 35]  It conceded that "[n]othing prevents such a
decriminalization of traffic offenses, if it is fully carried out,"
[Fn. 36] and noted the question of "whether the downgrading marks
a genuine change in the public assessment of the conduct or merely
seeks procedural short-cuts."[Fn. 37]  Its bottom line was that
"the code's offense . . . and its enforcement and punishment,
retain too many penal characteristics not to be a 'criminal
prosecution.'"[Fn. 38] 
          The court here does not approach the decriminalization in
this case holistically; it analyzes the penalty in isolation.  It
notes that defendants benefit from the criminal adjudicatory
procedures retained by the legislature, [Fn. 39] but not that they
still face burdensome criminal enforcement procedures.  The
legislature has significantly reduced the penalties for the new
"quasi-criminalized"version of commercial-fishing offenses, though
it must be noted that the fines escalate for repeat offenses.  This
is in tension with the idea of strict liability.  Imposing a fixed
fine without fault may reflect a desire not to punish a specific
past failure of care, but to generally increase prospective
awareness and caution. [Fn. 40]  It seems difficult, however, to
explain escalating fines for identical conduct other than by
presuming a desire to punish the separate antisocial element of
recalcitrance. I think that the retention of criminal enforcement
proceedings, the substantial fines, their escalation for repeat
offenders, and most importantly the potentially massive
forfeitures, jointly mean that the legislature did not fully carry
out a decriminalization of commercial-fishing offenses.  This is
particularly so given that such offenses started out "criminal,"
while the traffic offenses that dominate contemporary case law on
"quasi-criminal"offenses and procedural rights did not. [Fn. 41] 
The practical needs, stakes, and public attitudes involved in
traffic regulation do not provide useful analogies for so disparate
a context as commercial fishing.  Our apt finding of a valid
"quasi-criminalization"in Clayton does not support such a
conclusion here.
     B.   The Potential Fine at Issue Here Is Very Significant, but
Need Not by Itself Suffice to Mark This Proceeding a Criminal
Prosecution.

          The court dispenses in one sentence with the
$3,000 $6,000 fines that AS 16.05.722 (at the time of this
proceeding) authorized as punishment for the "quasi-criminal"
violations it defines. [Fn. 42]  (The statute now authorizes fines
of $3,000 $9,000. [Fn. 43])  The court says that a maximum fine of
such size "does not in itself connote criminality in the context of
the highly regulated multi-million dollar fishing industry."[Fn.
44]  
          There are two problems with this analysis.  The first is
that AS 16.05.722 is not limited, as the court seems to suggest, to
multi-million-dollar fishing corporations.  Alaska's fishing
industry as a whole is indeed a "highly regulated, multi-million
dollar"affair.  But AS 16.05.722 applies not to an industry, but
to individual fishers. Some may be large corporations, like the
defendants in this case.  A $3,000 $6,000 fine may well be a minor
cost of doing business to such defendants.  But other defendants
will be sole proprietors or partnerships -- individual boat-owners
fishing on their own, non-multi-million-dollar accounts.  An
assurance that a $3,000 $6,000 fine is minor in relation to the
industry as a whole will be cold comfort to individual fishers
fined several thousand dollars in cases in which, after all, the
State does not even prove them negligent.  Such fishers have a
right to "the infusion of the earthy common sense of a jury,"which
may, as several federal courts have noted, "upon occasion mitigate
appropriately the harsh impact sometimes characteristic of in rem
procedure"[Fn. 45] (or here, of strict-liability, "quasi-criminal"
procedure).
          While this appeal was pending, First Judicial District
Court Judge Patricia Collins, in a long, thoughtful opinion, held
that, while a proceeding under AS 16.05.722 is not a criminal
prosecution or a civil case, due process nonetheless entails a
right to jury trial if the State seeks to impose a fine of more
than $250. [Fn. 46]  Judge Collins noted that "strict[-]liability
prosecutions are not limited to multi-million dollar catcher-
processor operations (like Trident).  To the many small-scale
commercial fishers barely subsisting in a depressed fisheries
market [whom] this court sees on a daily basis, a $3,000 to $9,000
fine is significant."[Fn. 47]  This practical focus led Judge
Collins to hold that fines "ten to ninety times the amounts
involved in Clayton [$300] and Alaska Public Defender Agency [$100]
strain the notion [that] such offenses can be properly deemed so
'minor' that no jury trial right, either criminal or civil,
applies."[Fn. 48]  The court does not fully discuss this issue.
          The second problem in the court's analysis is its comment
that the potential fine "does not in itself connote criminality"
(emphasis added).  The question under Baker should not be whether
one of two potentially concurrent penalties "in itself"connotes
criminality, but whether the nature of the offense and of the
possible consequences as a whole do so. [Fn. 49]  The court,
though, isolates the fine from the forfeiture and from the other
aspects of the offense.  It analyzes the parts one by one, in
short, and concludes that none satisfies a test that should address
the whole.  But as I argued in Part A.2 above, discussing the
Oregon Supreme Court's Brown opinion, we must consider the totality
of the proceeding and penalties at issue here.
II.  Civil Proceeding Analysis
     A.   If This Is Not a "Criminal Prosecution,"Then It Is a
"Civil Case,"for Creating an Expansive New Category of "Quasi-
Criminal Cases"Implicitly Overrules Baker and Is Poor Policy.

          In Resek we declined to reject the legislature's "civil"
label and recognize the "criminal"substance of a forfeiture
proceeding.  In this case, by contrast, the legislature has not
chosen either of the two traditional ways to enforce legal
claims -- the civil suit or the criminal prosecution.  Respondents
thus do not ask us to override such a choice.  They instead ask us
to override AS 16.05.722's novel, hybrid approach of using neither
a "criminal prosecution,"with its right to jury trial, nor a
"civil case,"with its right to jury trial, but instead using a
"quasi-criminal"case that conspires to prevent defendants from
enjoying the right to have a jury stand between them and the
prosecution.
          The court holds that a "quasi-criminal"proceeding is not
a new, third type of case, but a minor criminal case properly
exempted from the right to jury trial. [Fn. 50]  I think its claim
that we have not created a third category of cases disingenuous. 
Policy reasons beyond a preference for neat dichotomies require us
generally to hold the legislature to the long and wisely
established choice of using either civil or criminal proceedings to
impose substantial sanctions.
          The court's analysis of why this is not a civil case is
hard to grasp.  It notes the State's amazingly circular argument
that "quasi-criminal"proceedings "are not civil . . . because they
are enforced under the rules governing criminal cases."[Fn. 51] 
It then recounts our conclusion in Clayton that proceedings to
impose fines of up to $300 for traffic infractions are "quasi-
criminal"and may involve criminal enforcement mechanisms and yet
no jury trial. [Fn. 52]
          The court treats Clayton as having created a hitherto-
unnoticed, but expandable, sub-class of criminal cases.  In so
doing, it ignores the fact that Baker, in broadly defining
"criminal prosecutions,"explicitly excepted "such relatively
innocuous offenses as wrongful parking of motor vehicles, minor
traffic violations, and [regulatory violations]."[Fn. 53]  Traffic
tickets were the genre that the Baker court had in mind in noting
that "some infractions of laws or ordinances . . . are so slight
that probably all reasonable persons would agree that they should
not be triable by jury."[Fn. 54]  It is more plausible to see
Clayton -- though it did not involve the right to jury trial -- as
having followed Baker's lead and recognized traffic regulation as
a sui generis legal incident of modern life that all reasonable
people can agree does not warrant full-blown civil or criminal
procedural protections.
          In any case, the court establishes that we have one
precedent of "quasi-criminal,"non-jury enforcement proceedings. 
Having done so, the court should then show that this proceeding is
more analogous to that precedent than to the norm of "civil cases." 
It does not even try to do so.  It says that Clayton "highlights
the fact"that criminal and civil procedures "are importantly
different."[Fn. 55]  It notes that criminal adjudicatory
procedures "are more favorable to defendants than [civil]
procedures,"[Fn. 56] so that "quasi-criminal"defendants, while
denied a jury trial, have some advantages over civil defendants,
i.e., the standard of proof, unavailability of summary judgment,
limited discovery duties, and safety from appeal.  But after
listing these differences, the court notes only that it has
"demonstrate[d] . . . a substantial difference between cases
conducted using criminal and civil procedures."[Fn. 57]
          I am at a loss to understand how this advances the
argument that this proceeding should be considered not a "civil
case,"but part of a class, with Clayton, of minor, non-jury
"quasi-criminal"cases.  The court's point seems to be that, if we
declare a case "quasi-criminal,"the effect is not merely to deny
the defendant a right to jury trial, but also to give the defendant
other procedural advantages.  Of course, the fact that Dutch Harbor
and Trident nonetheless urge us to declare this a "civil case"
suggests that those advantages are less valuable.  I cannot see how
those advantages suggest that we should not also afford defendants
a right to jury trial.  I do not know how to address an argument
that, because we give defendants some of the protections to which
they are entitled, we need not give them the rest.  And while I
agree that a "quasi-criminal"case is procedurally much like a
criminal prosecution, and is not just a civil case with the jury-
trial right deleted, the court still says nothing as to why we
should so categorize this proceeding, despite the heavy penalty at
stake.
          I think that the "quasi-criminal"proceeding in Clayton
is, at least for traffic infractions, useful and constitutional. 
But we should not deny that it is a third "category"of cases.  The
right to a jury trial is not so minor a variable that it cannot
change a proceeding's basic character.  This appeal, where that
right is all that is at stake, would not be part of a centuries-old
line of cases if that were so.  In Baker, we quoted Justice White's
opinion in Duncan v. Louisiana. [Fn. 58]  Although Duncan
recognized a petty-offenses exception to the Sixth Amendment, it
nonetheless stressed the jury's universal centrality in American
States' systems of justice: 
          [E]very American State . . . uses the jury
extensively, and imposes very serious punishments only after a
trial at which the defendant has a right to a jury's verdict.  In
every State . . . the structure and style of the criminal process
-- the supporting framework and the subsidiary procedures -- are of
the sort that naturally complement jury trial, and have developed
in connection with and in reliance upon jury trial. [Fn. 59]

          In Baker we sought to apply that lesson.  We implicitly
left open the possibility that the legislature may try to impose a
given sanction via the equally well-defined procedures of a civil
case.  Our three-part test for what is a "criminal prosecution"
defines instances in which, although the legislature labels a
proceeding "civil,"we will find that the penalties are so severe,
or so connote condemnation or stigma, that we will reject the
attempt to enforce them in civil cases.  The test, in short, shows
when to override a civil label and treat a case as criminal.  It
does not constitute a second, higher threshold, after we have
determined that a case is "criminal,"for determining further that
it warrants a jury trial.  The jury is presumptively central to the
criminal procedural enterprise and, under Baker, that presumption
is not rebuttable.  The court's listing of other protections that
remain after it has taken away the right to a jury cannot refute
that point.
          The court acknowledges the "force"in respondents'
argument that having a third category of cases could "severely
compromise[]"the rights "encompassed in sections 11 and 16 of
article I."[Fn. 60]  I agree.  The court responds that "there is
no third category of cases"because, "[a]s used in Clayton, the
term 'quasi-criminal' encompasses minor offenses which are criminal
rather than civil in nature but do not meet the Baker test for the
right to jury trial."[Fn. 61]  I disagree.  Clayton does create a
third "category"of cases.  That category has, in twenty years,
included only Clayton and the companion case of Alaska Public
Defender Agency v. Superior Court, [Fn. 62] which involved a
proceeding to enforce a $100 fine under a municipal harassment
ordinance.
          I think that there is a much simpler answer to
respondents' claim that "creating"such a third category could
"compromise"the constitutional rights to jury trial.  We should
acknowledge that we have created that category; note its utility,
as Baker foresaw, for traffic tickets; and then not expand it.  The
court instead treats a case involving vastly heavier potential
penalties than Clayton or Alaska Public Defender in a way different
than a civil suit, and different than a criminal prosecution, and
yet denies the substance of what it is doing; that is the real
danger.  An exception acknowledged and forthrightly defined by
reference to policy and practical reality can be contained; an
exception defined by definitional legerdemain is dangerous, and can
expand without accountability.  The court's opinion does not even
try to analogize this case to Clayton in light of policy or
practical reality, as opposed to abstract categories. 
          Beyond these policy concerns, the court's argument has
another fatal flaw.  It implicitly overrules the heart of Baker:
All "criminal prosecutions"entail a right to jury, and we
expressly reject the distinction between "serious"and "petty"
offenses. [Fn. 63]  Baker could not have been clearer on this
point.  Yet the court says that AS 16.05.722 defines "minor
offenses which are criminal rather than civil in nature but do not
meet the Baker test for the right to jury trial."[Fn. 64]  To
refer to "minor"rather than "petty"offenses in order to argue
that we remain within the "criminal"category yet without the rule
of Baker is unedifying, to say the least.  And having acknowledged
that the case is within the "criminal"category, how can we say
that a successful prosecution does not denote criminality?   
          The real question is not how to metaphysically define
categories of cases.  It is whether sound policy and a fair reading
of the Constitution and precedent suggest that we should expand,
for the first time in twenty years, the exception to Baker that we
suggested for traffic tickets in Clayton.  To do so, the court must
analogize a proceeding to enforce traffic tickets to a proceeding
that until recently was a criminal prosecution, and that can
produce fines of up to $6,000 and forfeitures worth hundreds of
thousands of dollars.  I cannot see the analogy.
III. Forecast
     A.   The Court's Opinion, in Conjunction with Hazelwood,
Vastly Expands the State's Power to Forfeit Property.

          Looking beyond this case, I find most disturbing the
conjunction of today's curtailment of Baker with last year's
approval, in State v. Hazelwood, [Fn. 65] of criminal punishment
based on simple negligence.  Hazelwood and today's opinion jointly
free the State from the burdensome restraints of criminal
procedural rights, while leaving it free to use criminal
enforcement mechanisms, if it only lowers the mens rea requirement
for, and "quasi-criminalizes,"an offense.  It can then use
criminal law tools to control behavior and raise revenue by
convincing judges to forfeit citizens' property, of potentially
unlimited value, with a showing only of simple negligence, or even
strict liability, and without having to face the expense, delay,
and moderating influence of a jury.  The consequences are
impressive.  
          In any area of law enforcement in which the legislature
wishes to aid prosecutors, and perhaps raise revenues, it can
create parallel "quasi-criminal"violations for existing crimes. 
This shifts from defendants to prosecutors the decision whether a
case will be tried to a jury.  Perhaps more importantly, it
tremendously shifts settlement bargaining power to prosecutors. 
With no jury to stand between the prosecutor and the defendant, and
with the leverage prosecutors should gain by the increased
bargaining power inherent in prosecuting "quasi-criminal"cases,
justice surely will not be delayed.  It will only be denied.
IV.  Conclusion
          The court gives itself away at the outset of its opinion
when it says that strict liability commercial fishing violations
"are minor offenses which do not fall within established standards
for determining whether a criminal jury trial is required.  Cases
prosecuting such violations are nonetheless criminal rather than
civil in nature; therefore a civil jury trial is not required."
[Fn. 66]  I doubt that it will be of much comfort to the defendant
found "guilty"by a judge of his or her third "strict liability
commercial fishing violation[],"and upon that "conviction"fined
$9,000 and unburdened of tens to hundreds of thousands of dollars
worth of fish caught in the commission of the violation, to be able
to say "I am not a criminal.  I know this to be true because I did
not have the right to be tried by a jury.  I am only a 'quasi-
criminal'."  A "quasi-criminal"by any other name is a criminal. 
          Will the citizen on the street begin to understand the
difference between a "criminal"and a "quasi-criminal"?  Will the
guilt associated with the conviction of such a violation,
heretofore a crime, not be a "gauge of the ethical and social
judgments of the community"?  Are we prepared to proclaim, without
fear of looking foolish, that such a violation is a "relatively
innocuous offense[] [such as] wrongful parking of motor vehicles,
minor traffic violations, and violations which relate to the
regulation of property, sanitation, building codes, fire codes, and
other legal measures which can be regulatory rather than criminal
in their thrust"?  If so, we must be prepared to approve denial of
a jury in a proceeding seeking the forfeiture of a $10,000-$100,000
automobile for a $10 parking ticket or for a driver's failure to
activate a turn signal.
          The court declines to address the circularity of its
analysis: the fish you have forfeited were taken as a result of
your illegal activity; thus forfeiting them is not punitive.  Since
the forfeiture of illegally taken fish is not punitive, we need not
afford you the right to a jury to determine whether you took the
fish illegally.  Its parsing of Baker undermines the principles
which Baker eloquently articulated.  And its failure to recognize
that it is sanctioning a new category of cases will result in
undermining the constitutional guarantees to trial by jury that
heretofore had been presumed to have substance.


                            FOOTNOTES


Footnote 1:

     This is a legal question to which we apply our independent
judgment. See Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d
274, 277 (Alaska 1994).


Footnote 2:

     5 AAC 28.020 provides in relevant part:

               (a) Before a person uses a vessel to
operate groundfish gear in the territorial waters of Alaska, except
for the Eastern Gulf of Alaska registration area, the vessel owner
or the owner's authorized agent shall register the vessel with the
department. However, the commissioner may waive this registration
requirement for a specific fishery or season if the commissioner
considers waiver to be necessary.
               . . . .
               (c) Before operating groundfish gear
within a registration area, the vessel owner, or the owner's
authorized agent, shall complete the registration requirements by
mail or in person at a department office located within the
registration area.  A completed form validated by the department
satisfies the registration requirements. In the form, the
department may require check-in and check-out procedures for
fishing specified subsections within the registration area.  A copy
of the completed form must be retained onboard a vessel operating
groundfish gear in the registration area.


Footnote 3:

     5 AAC 39.197 provides:

               No person may possess, purchase, sell,
barter or transport fish within the state or within water subject
to the jurisdiction of the state if that person knows or has reason
to know that fish were taken or possessed in contravention of 5 AAC
03 - 5 AAC 39.


Footnote 4:

     Article I, section 11 of the Alaska Constitution provides:

               In all criminal prosecutions, the accused
shall have the right to a speedy and public trial, by an impartial
jury of twelve; except that the legislature may provide for a jury
of not more than twelve nor less than six in courts not of record. 
The accused is entitled to be informed of the nature and cause of
the accusation;  to be released on bail, except for capital
offenses when the proof is evident or the presumption great;  to be
confronted with the witnesses against him;  to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.

Article I, section 16, provides:

               In civil cases where the amount in
controversy exceeds two hundred fifty dollars, the right of trial
by a jury of twelve is preserved to the same extent as it existed
at common law.  The legislature may make provision for a verdict by
not less than three-fourths of the jury and, in courts not of
record, may provide for a jury of not less than six or more than
twelve.


Footnote 5:

     AS 16.05.722 provided during the relevant time frame:

               (a)  A person who without any culpable
mental state violates AS 16.05.440 - 16.05.690, or a regulation of
the Board of Fisheries or the department governing commercial
fishing, is guilty of a violation and upon conviction is punishable
by a fine of not more than
               (1)  $3,000 for a first conviction; and
               (2)  $6,000 for a second conviction or
subsequent conviction.
               (b)  In addition, the court shall order
forfeiture of any fish, or its fair market value, taken or retained
as a result of the commission of the violation.  For purposes of
this subsection, it is a rebuttable presumption that all fish found
on board a fishing vessel used in or in aid of a violation, or
found at the fishing site, were taken or retained in violation of
AS 16.05.440 - 16.05.690 or a commercial fisheries regulation of
the Board of Fisheries or the department.  It is the defendant's
burden to show by a preponderance of the evidence that fish on
board or at the site were lawfully taken and retained.
               (c)  A person charged with a violation
under this section is entitled to a trial by court but not by jury,
and is not entitled to representation at public expense. 


Footnote 6:

     AS 16.05.723 provides:

               (a)  A person who negligently violates AS
16.05.440 - 16.05.690, or a regulation of the Board of Fisheries or
the department governing commercial fishing, is guilty of a
misdemeanor and in addition to punishment under other provisions in
this title, including AS 16.05.195 and 16.05.710, is punishable
upon conviction by a fine of not more than $15,000 or by
imprisonment for not more than one year, or by both.  In addition,
the court shall order forfeiture of any fish, or its fair market
value, taken or retained as a result of the commission of the
violation, and the court may forfeit any vessel and any fishing
gear, including any net, pot, tackle, or other device designed or
employed to take fish commercially, that was used in or in aid of
the violation. Any fish, or its fair market value, forfeited under
this subsection may not also be forfeited under AS 16.05.195.  For
purposes of this subsection, it is a rebuttable presumption that
all fish found on board a fishing vessel used in or in aid of a
violation, or found at the fishing site, were taken or retained in
violation of AS 16.05.440 - 16.05.690 or a commercial fisheries
regulation of the Board of Fisheries or the department, and it is
the defendant's burden to show by a preponderance of the evidence
that fish on board or at the site were lawfully taken and retained.
               (b)  If a person is convicted under this
section of one of the following offenses, then, in addition to the
penalties imposed under (a) of this section, the court may impose
a fine equal to the gross value of the fish found on board or at
the fishing site at the time of the violation:
               (1)  commercial fishing in closed waters;
               (2)  commercial fishing during a closed
period or season;
               (3)  commercial fishing with unlawful
          gear, including a net, pot, tackle, or other
          device designed or employed to take fish
commercially;  or
               (4)  commercial fishing without a limited
entry permit holder on board if the holder is required by law or
regulation to be present.
               (c)  Upon a third misdemeanor conviction
within a period of 10 years for an offense listed in (b) of this
section or any combination of offenses listed in (b) of this
section, the court shall impose, in addition to any penalties
imposed under (a) of this section, a fine equal to three times the
gross value of the fish found on board or at the fishing site at
the time of the offense, or a fine equal to $10,000, whichever is
greater.


Footnote 7:

     In Alexander v. City of Anchorage, 490 P.2d 910, 912-13
(Alaska 1971), we synthesized our holding in Baker as follows: 

          We defined "criminal prosecution"as including
"any offense a direct penalty for which may be incarceration in a
jail or penal institution."  We also included in the definition of
that term offenses which may result in the loss of a valuable
license and offenses where a heavy enough fine is imposed so as to
indicate criminality because such a fine could be taken as a gauge
of the ethical and social judgments of the community.

(Footnotes omitted.)  Our most recent synthesis of the test to be
used in determining whether a proceeding is a criminal prosecution
was expressed in Resek v. State, 706 P.2d 288, 291 (Alaska 1985),
as follows:  

          This court has defined "criminal prosecution,"
as that term is used in Article I, as including (1) offenses for
which a direct penalty may be incarceration, (2) offenses which may
result in the loss of a valuable license, and (3) offenses for
which the fine imposed is heavy enough to indicate criminality,
because such a fine could be taken as a gauge of the ethical and
social judgments of the community.


Footnote 8:

     The function of the third part of the Baker test is to
recognize that incarceration and revocation of licenses are not the
only possible methods by which the legislature might punish
criminal conduct.  Home confinement, community work service,
probation, and fines are examples of alternative methods of
punishment.  Therefore, the court must determine if, in the social
and ethical judgment of the community, the offense connotes
criminal conduct in the traditional sense of the term, despite the
lack of punishment by incarceration or revocation of a license.

          Under the Baker test, potential sanctions determine
whether a case is a "criminal prosecution"within the meaning of
article I, section 11.  In order to assess potential sanctions, a
conviction must be assumed.  Notwithstanding Chief Justice
Compton's dissent, we do not believe that the need to hypothesize
a conviction in order to apply the Baker test violates the
presumption of innocence.


Footnote 9:

     The core of the disagreement between this opinion and the
dissenting opinion of Chief Justice Compton can perhaps be
illustrated by stating the position of this opinion
syllogistically: 

          (1) "criminal prosecutions"within the meaning of
article I, section 11 of the Alaska Constitution are cases

          (a) where the possible sanction is
incarceration;

          (b) where the possible sanction is loss of a
valuable license or;

          (c) involving offenses which connote criminal
conduct, for example, where a heavy fine is imposed.

          (2) This case does not fall within categories
(1)(a), (b) or (c).  As to (c), strict liability fishing violations
do not connote criminal conduct because there is no culpable state
of mind, no heavy fine is imposed, and forfeitures do not connote
criminality because, as in Resek, the amount forfeited is
independent of the degree of culpability and forfeitures have
legitimate remedial nonpunitive purposes.

          (3) Therefore, this case is not a "criminal
prosecution."

          Chief Justice Compton's syllogism would include in (1)(c)
offenses where "potentially massive forfeitures"may be imposed in
addition to fines which are not themselves heavy enough to connote
criminal conduct.

          Our disagreement with Chief Justice Compton's dissent is
essentially a reprise of the Resek debate.  Forfeitures do not
connote criminality when viewed alone.  It follows that they do not
connote criminality when viewed in conjunction with modest fines.


Footnote 10:

     Although respondents based their motion for a jury trial only
on the Alaska Constitution, the superior court judge stated in his
oral remarks that he was also basing his decision on the
Constitution of the United States.  The Sixth Amendment to the
United States Constitution guarantees defendants the right to trial
by jury in "all criminal prosecutions."  By judicial interpretation
this guarantee has been held not to apply to "petty offenses."  Any
crime in which incarceration of more than six months is a
possibility is not a petty offense.  See Blanton v. City of N. Las
Vegas, 489 U.S. 538, 542 (1989).  Where the maximum period of
incarceration is less than six months, a defendant is entitled to
a jury trial "only if he can demonstrate that any additional
statutory penalties, viewed in conjunction with the maximum
authorized period of incarceration, are so severe that they clearly
reflect a legislative determination that the offense in question is
a 'serious' one."  Id.  In United States v. Nachitgal, 507 U.S. 1,
5 (1993), the Court held that a fine of $5,000 taken in conjunction
with a maximum period of incarceration of six months did not render
the offense in question a serious one as to an individual
defendant.  See also Muniz v. Hoffman, 422 U.S. 254 (1975) (holding
that $10,000 fine imposed on a labor union does not trigger assumed
jury trial right).  Whether forfeitures can be considered as
additional statutory penalties under Blanton seems to be an
unanswered question.  Austin v. United States, 509 U.S. 602 (1993),
held that an in rem forfeiture of real property which had been used
in drug violations was punishment subject to the excessive fines
clause of the Eighth Amendment.  While forfeitures of property used
in the commission of crime, as in Austin, may be regarded as
additional statutory penalties under Blanton, we doubt that
forfeitures of the proceeds of illegal conduct, as in this case,
will be so regarded.  The purpose of proceeds forfeitures is more
remedial than punitive.  Based on the foregoing, we conclude that
the Sixth Amendment to the United States Constitution does not
require a jury trial in these cases.


Footnote 11:

     "Infractions"within the motor vehicle code are analogous to
"violations"within the criminal code.  An "infraction"is the
least serious vehicular offense, "is not considered a criminal
offense,"and is punishable by fine but not by imprisonment.  AS
28.40.050(d).  Similarly, a "violation"is the least serious
offense in the criminal code, AS 11.81.250(a)(6), is a noncriminal
offense for which conviction "does not give rise to any disability
or legal disadvantage based on conviction of a crime,"and is
punishable by a fine but not by imprisonment.  AS 11.81.900(b)(58). 
Statutes defining both offenses expressly deny the right to jury
trial and appointed counsel.  See AS 28.40.050(d); AS 11.81-

.900(b)(58).  


Footnote 12:

     The legislature later codified Clayton.  Alaska Statute
12.80.040 provides that, except for the right to a jury trial and
appointed counsel, "all laws of the state relating to misdemeanors
apply to violations and infractions, including the powers of police
officers, the jurisdiction of courts, and the periods for
commencing actions and for bringing a case to trial."  



                       FOOTNOTES (Dissent)


Footnote 1:

     See Slip Op. at 10-11.


Footnote 2:

     Id. at 10.


Footnote 3:

     See id. at 7 13 (quoting and applying test of Baker v. City of
Fairbanks, 471 P.2d 386, 402 & n.29 (Alaska 1970)).


Footnote 4:

     See id. at 14 20.


Footnote 5:

     706 P.2d 288, 293 (Alaska 1985).  Resek concerned the right to
counsel, but we saw "no justifiable reason for defining 'criminal
prosecution' any differently"for purposes of the rights to counsel
and to a jury.  Id. at 291 (citing Alexander v. City of Anchorage,
490 P.2d 910, 913 (Alaska 1971)).


Footnote 6:

     See Resek, 706 P.2d at 294 96 (Compton, J., dissenting).


Footnote 7:

     Slip Op. at 12.


Footnote 8:

     Id.


Footnote 9:

     Id. at 12 (quoting McCann v. State, 817 P.2d 484, 486 (Alaska
App. 1991)).


Footnote 10:

     See, e.g., 1 Dan B. Dobbs, Law of Remedies sec. 1.1, at 5 (2d
ed.
1993).   


Footnote 11:

     841 P.2d 190 (Alaska App. 1992).


Footnote 12:

     Slip Op. at 12.


Footnote 13:

     See Resek, 706 P.2d at 291 93.


Footnote 14:

     See id. at 290 (citing AS 17.30.116(b)).


Footnote 15:

     Id. at 291 92.


Footnote 16:

     Id. at 292 (citing 21 U.S.C. sec. 881 (1981) and various cases
including United States v. One Assortment of 89 Firearms, 465 U.S.
354, 371 (1984)).


Footnote 17:

     See id.


Footnote 18:

     Id.


Footnote 19:

     See id.


Footnote 20:

     946 P.2d 875, 883 84 (Alaska 1997)


Footnote 21:

     Resek, 706 P.2d at 292.


Footnote 22:

     Slip Op. at 12.


Footnote 23:

     Slip Op. at 12.


Footnote 24:

     See Alexander v. City of Anchorage, 490 P.2d 910, 912-13
(Alaska 1971); Resek, 706 P.2d at 291 (both quoted in Slip Op. at
8 n.7).


Footnote 25:

     See Baker, 471 P.2d at 402 n.29.


Footnote 26:

     See id. at 401 02.


Footnote 27:

     Id. at 402.


Footnote 28:

     See id. at 391 93, 396.


Footnote 29:

     See id. at 391 (citing Cheff v. Schnackenberg, 384 U.S. 373
(1966) and older opinions).


Footnote 30:

     Id. at 392; and see id. at 392 93 (summarizing cases).


Footnote 31:

     See id. at 391 ("[O]ne looking only to the past will find a
jumble of offenses with no coherent, rationalizing principle by
which to determine the line between what is a petty and a serious
crime.").


Footnote 32:

     Id. at 394.


Footnote 33:

     Id. at 396.


Footnote 34:

     Id. at 401.


Footnote 35:

      [Fn. 67]See 570 P.2d 52, 54 (Or. 1977).


Footnote 36:

     Id. at 61.


Footnote 37:

     Id. at 57.


Footnote 38:

     Id. at 60.


Footnote 39:

     See Slip Op. at 17 18.


Footnote 40:

     See Hazelwood, 946 P.2d at 883 84.  The court noted that some
coercion is designed to "cause[] the offender to pay attention." 
Id. at 883.  Hopefully, that is, the threat of strict-liability
sanctions will prompt potential offenders "'to exert [their]
faculties, rather than . . . enter[ing] as a reason for conforming
to the law when [they are] deliberating whether to break it or not. 
It is perhaps more like a goad than a guide.'"  Id. (quoting H.L.A.
Hart, Punishment and Responsibility 134 (1968)).


Footnote 41:

     See, e.g., State v. Clayton, 584 P.2d 1111, 1114 & nn.9 10
(Alaska 1978) (collecting cases); Brown, 570 P.2d at 54; State v.
Richey, 762 P.2d 585, 588 (Ariz. App. 1988), aff'd in part, vacated
in part by 774 P.2d 1354 (Ariz. 1989); State v. Bennion, 730 P.2d
952, 955 (Idaho 1986); State v. Anton, 463 A.2d 703, 708 09 (Me.
1983).


Footnote 42:

     See Slip Op. at 10.  


Footnote 43:

     See AS 16.05.722(a)(1) (3) (as amended by ch. 47, sec. 1, SLA
1995).


Footnote 44:

     Slip Op. at 10.


Footnote 45:

     United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453,
469 (7th Cir. 1980) (quoted in, e.g., United States v. Chandler, 36
F.3d 358, 369 (4th Cir. 1994) (Wilkinson, J., concurring) and
United States v. RR #1, Box 224, 14 F.3d 864, 876 (3d Cir. 1994)). 
In fishing communities, jury common sense may be more "salty"than
"earthy,"but the point remains apt.


Footnote 46:

     See State v. Jurries, No. 1CR 97 534 Cr. (Alaska Dist. Ct.,
March 6, 1998), at 3 5.


Footnote 47:

     Id. at 22.


Footnote 48:

     Id. (citing Clayton, 584 P.2d at 1115, and Alaska Pub.
Defender Agency v. Superior Court, 594 P.2d 1106, 1110 (Alaska
1978)).


Footnote 49:

     See Baker, 471 P.2d at 402 & n.29; see also id. at 389 90,
393 94 (noting choice between maximum-possible-punishment-only and
totality-of-the-offense approaches to determining whether crime is
"petty"or "serious,"and preferring latter, although ultimately
rejecting petty/serious distinction entirely).


Footnote 50:

     See Slip Op. at 14, 18 20.


Footnote 51:

     Id. at 15.


Footnote 52:

     See id. at 15 17.


Footnote 53:

     Baker, 471 P.2d at 402.


Footnote 54:

     Id. at 394.


Footnote 55:

     Slip Op. at 17.


Footnote 56:

     Id. at 17.


Footnote 57:

     Id. at 17-18.


Footnote 58:

     391 U.S. 145 (1968).


Footnote 59:

     Id. at 150 n.14 (quoted in Baker, 471 P.2d at 389).


Footnote 60:

     Slip Op. at 18.


Footnote 61:

     Id.


Footnote 62:

          584 P.2d 1106 (Alaska 1978).


Footnote 63:

     See Baker, 471 P.2d at 394 (noting that "courts have had
difficulty in determining the qualitative difference by which an
offense is to be placed in the category of serious or petty"and
that "the most critical question is not where the line should be
drawn, but why it should be drawn at all"); id. at 401 02
(concluding that it should not).


Footnote 64:

     Slip Op. at 18.


Footnote 65:

     946 P.2d 875, 884 85 (Alaska 1997).


Footnote 66:

     Slip Op. at 2.


Footnote 67:

     570 P.2d 52 (Or. 1977).