ELLSWORTH — Untold numbers of shellfish violators have been wrongly convicted of Class D crimes when in fact their violations were civil, said District Attorney Matt Foster.
“They’re getting a criminal conviction on their record when they shouldn’t be,” Foster said. “It’s a huge mess, really, is what it is.”
Foster said a conflict in two sections of Maine criminal statute is the problem.
To that end, Foster notified Hancock and Washington County municipalities July 22 that he intends to stop prosecuting municipal shellfish ordinance violations. He will still prosecute state shellfish ordinance violations.
The district attorney explained that Section 6671 of Title 12 allows municipalities to enact local shellfish ordinances.
“That title provides certain violations of municipal ordinances to be Class D ordinances,” Foster said. “The only penalty is a fine.” There is no jail time involved.
However, Title 17A Section 4B presents a conflict with Title 12, Foster said.
Title 17A 4B defines a civil violation and states that even if the law considers a violation to be a criminal act, if there is no possible jail time, then the violation is civil.
“What’s been happening over the years, people have been convicted of Class D crimes when in fact they are civil violations,” Foster said. “I’m trying to correct that.”
Historically, municipal shellfish wardens have been filing summonses directly with Fifth District Court. Foster said the wardens check the criminal box on the summonses and write violation “6671.”
“The court processes it as a criminal case,” he said. “But if you look at 17A 4B, it’s not a criminal case.”
The remedy lies with municipalities, the prosecutor said.
“The towns can authorize their shellfish wardens to come to court,” he said. Most wardens usually come to court anyway.
“The warden would get up on the stand and present the case to the judge and ask questions of the defendant. Ninety to ninety-five percent are pleas anyway. I’m not asking these towns to do anything more than they already do.”
The DA will continue prosecuting shellfish violations of state law.
“The shellfish wardens have authority to write violations of state law as well and we will prosecute those,” Foster said. “Say there’s a clam flat closure in a state closed area; we’ll still prosecute that. If at that same time, the warden writes a summons for harvesting without a town license, that’s the town’s responsibility.”
At least one municipality, the town of Stonington, is concerned.
Foster’s letter came up at the selectmen’s weekly meeting Aug. 10.
Selectman Chris Betts, referring to Foster’s letter, said Foster seems to be saying “that’s not his jurisdiction.”
“That’s his interpretation,” said Town Manager Kathleen Billings-Pezaris. The Maine Department of Marine Resources has contacted the Attorney General’s Office to find out if what Foster is claiming is correct, Billings-Pezaris said.
“I’ve also complained to our county commissioner, Joe Brown,” she said.
The Maine attorney general oversees the state’s district attorneys but had no information Aug. 11.
“We have received several inquiries and we hope to discuss this matter with the elected district attorney in the near future,” said Maine Attorney General’s Office spokesman Timothy Feeley.
At least one shellfish warden thinks the change will be an improvement.
“Things will get done quicker if we do it that way,” said Mike Hall. “I think it’s going to work well if we do it this way.”
“I’ve got quite a large area,” said Hall, who is the warden for the towns of Ellsworth, Lamoine, Trenton, Franklin, Hancock, Sullivan and Sorrento. “Marine Patrol works with me and we get it done.”