“Whereas, thеre is pending in the house, HB number 148 ‘An Act prohibiting the harrassment of hunters, trappers and fishermen’; and whereas, doubt has been expressed as to the constitutionality of the prоvisions of said bill; now, therefor, be it
“Resolved, by the House of Representatives:
“That the Justices of the Supreme Court be respectfully requested to give their opinion on the following important questions of law:
“1. May the general court within the provisions of the New Hampshire Constitution enact a statute as proposed in HB 148, which would enable the state to use its police powers to protect licensed hunters, trappers and fishermen from any harrassment while engaged in pursuit of a lawful activity?
“That the сlerk of the house be instructed to transmit to the clerk of the supreme court 6 copies of this resolution and 6 copies of HB 148.”
The following answers were returned:
To The Honorable House of Representatives:
The undersigned justices of the Supreme Court make the following reply to your request for an opinion as to the constitutionality of House bill 148. Interested parties were invited to file memoranda with the court until Marсh 20,1986.
House bill 148 would amend RSA chapter 207 by adding a subdivision entitled “Harassment Prohibited,” containing five new sections. The first section defines what is meant by “process of taking” and “wild animal” аs used in the bill’s succeeding sections. The second section would prohibit “interfer[ing]” with the taking or process of taking wild animals with intent to prevent the taking. It would also forbid “disturbing]” wild animals in order to “prevent or hinder” the taking. In addition, it would be illegal physically or verbally to provoke “another person who is engaged in the lawful taking of a wild animal on land or water in this state, or who has engaged in the process of taking, with the intent to dissuade or otherwise with provocative action prevent the taking, or to prevent by verbal harassment or physical action such person’s enjoyment of the outdoors when that person is lawfully engaged in any hunting, fishing or trapping activities in this state,” as would entеring or staying on public land or trespassing on private land “with intent to violate this section.” The third section would prohibit the failure to obey certain officials who order dеsistance from the forbidden conduct where they observe such conduct or have “reasonable grounds to believe” that such conduct has occurred or will oсcur on a given day on specific premises. The fourth section provides for injunctive relief and damages, including damages for economic loss and punitive damаges. Under the fifth section, violating any prohibition in the statute would be a violation.
We interpret the first submitted question as being intended to encompass an inquiry into whether the proposed legislation would be consistent with each provision of the New Hampshire Constitu
The answer to the first question is no. House bill 148, while ostensibly involving only the exercise of the police power, necessarily implicates the Stаte Constitution’s free speech guarantee, N.H. Const. pt. I, art. 22 (Supp. 1985), and would constitute a violation thereof. We recognize generally that “[t]he police pоwer of the state extends to the protection of the lives, health, comfort, and quiet of all persons, and the protection of all property, within the state; аnd persons and property are subjected to such restraints and burdens as are reasonably necessary to secure the general comfort, health, and prosperity[,]” State v. White,
We likewise note that the right of individuals to hunt, trap, and fish in a lawful manner is clearly a proper subject of police power protection. See State v. Company,
Nevertheless, the State’s exercise of its police power mаy not unreasonably interfere with an individual’s right to free speech. Part I, article 22 (Supp. 1985) of the New Hampshire Constitution provides that, “[f]ree speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.” As we noted in State v. Derrickson,
The bill at issue here is not a valid time, place, or manner regulation because it discriminates among points of view. See id. at 95-96. For example, the second section of the proposed statute would prohibit anti-hunting advocates from verbally “provok[ing]” hunters with intent to dissuade them from taking animаls. However, the bill could be read broadly enough to prohibit conservationists from addressing pro-conservation statements to those same hunters on public lands. Such сomprehensive content-based restrictions are not permissible under the State Constitution.
In addition, the bill is so vague as to provide little or no notice to an individual оf ordinary intelligence as to what activity would come within its proscriptions. See Opinion of the Justices,
Moreover, the statute potentially violates a landowner’s right to the otherwise lawful and reasonable use of his or her property. For example, the proposed second section of the bill would prohibit, inter alia, any person from “engaging] in an activity” or “plac[ing] any . .. substance that would tend to .. . affect the behavior of a wild animal, with intent to prevent or hinder its lawful taking.” This is so broad, that it would appear to prohibit a landowner from posting property and using food to attract wild animals with the рurpose of providing a refuge from hunters.
Since we have answered the first question posed in the negative, we do not reach the second. We have not, in the limited time available to us, examined all possible issues which could be raised in respect of the proposed bill.
May 8, 1986