Ostrosky v. State

704 P.2d 786 (1985)

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Nature of the Case

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Facts

D and his two daughters were convicted of fishing without a valid limited entry permit in 1979. D's daughters moved for post-conviction relief, contending that the Limited Entry Act violated equal protection. A found the act unconstitutional and vacated the convictions on August 14, 1981. D's conviction was also set aside on August 25, 1981. P appealed. The court certified the case to the supreme court, and the supreme court accepted the case for decision. On July 3, 1983, D was fishing with a drift gillnet in open waters. Trooper Folger boarded D's boat and checked it for fish. Despite D's admission that he had no permit, the trooper did not arrest D or try to stop him from fishing. On July 7, 1983, while the appeal was still pending, the state filed an emergency request with the supreme court for a stay of the unconstitutional ruling. P alleged that D had continued to fish without a permit, creating a 'serious potential for violence' in the area and 'undermining the fishermen's confidence in the limited entry system.' The stay was granted, and on July 8, 1983, D was arrested for fishing without a permit on that date, for fishing without permit on July 3, and illegal possession of salmon. On July 19, 1983, the Alaska Supreme Court upheld the Limited Entry Act as constitutional. D filed a motion to dismiss the present case alleging that, at the time he was charged with violating the Limited Entry Act, the Act had been declared unconstitutional in a case in which he was a party. D argued that he was entitled to rely on the ruling. The judge ruled that D had no right to rely on his earlier decision and that by fishing, D had taken the risk that the earlier decision would be reversed by the supreme court. D asked the court to instruct the jury that reasonable reliance on a judicial decision was a defense to this prosecution. The judge refused and also prohibited testimony concerning reasonable reliance. D made an offer of proof, and the judge ruled that mistake of law was irrelevant and would not give a jury instruction. D was convicted and appealed.