State v. Casey
876 P.2d 138
Idaho
1994
Check Treatment

*1 proceedings opin- further consistent with this respondent appeal.

ion. Each Costs attorney party to bear their own fees. McDEVITT, C.J., BISTLINE, SILAK, JJ., concur. JOHNSON 876 P.2d 138 Idaho, Plaintiff-Respondent, STATE CASEY, Defendant-Appellant. Claire

No. 20703. Idaho, Supreme Twin Falls. June

857 15, 1991, Casey May On was § charged violating with I.C. 36-1510. The against Casey subsequently complaint was violating charge amended to her with I.C. § makes it a misdemean- which Mauk, Boise, Skinner, ap- Fawcett & for “[ejnter any in area where or to or remain pellant. Kronberg argued. Chris intent any with the to animal be taken EchoHawk, Gen., Atty. Larry Doug- Idaho taking pursuit or of interfere with the lawful Werth, Gen., Boise, Atty. A. Deputy las for wildlife____”1 to Casey a motion dis filed respondent. Douglas argued. A. Werth miss, constitutionality of challenging the I.C. 36-1510, magis by § which was denied TROUT, Justice. 25, Casey 1992. was trate court March jury guilty violating of tried to a and found This case involves a constitutional chal- 1510(1)(c). Judgment was entered 1.C. 36-1510(l)(e), lenge 36— prohibits to I.C. Casey Execution was fined of $150.00. hunting, fishing preda- interference with Casey appealed stayed the sentence was tor find that control. We subsection to be court, to the district which affirmed. This unconstitutionally overbroad and that hold appeal followed.2 appellant’s conviction thereunder cannot stand.

DISCUSSION

BACKGROUND I. dispute as There is no to facts sur- I.C. NOT IS 36— rounding appellant’s arrest. On November A CONTENT-BASED Casey (Casey) Claire had a run-in REGULATION with Bureau of two hunters on Land Man- Appellant initially argues that agement adjacent to land located the ranch 1510(l)(e) on its is unconstitutional face Casey working. on which The was men were regulation speech. as a In content-based hunting the time of the chukars at confronta- support argument, appellant cites this Casey tion. was concerned because the chu- legislative purpose for the statement of were, her, kars according in that area argues proves which she relatively having tame and unafraid from targets only anti-hunting statute members of by Casey spoke been humans. fed to the groups attempting protest and thus is hunters, ignored apparently who her. She regulate anti-hunting the content of their subsequently waived arms the chukars purpose pro expressions. statement of The and screamed at them. She also or walked vides: pro- stood in front of the hunters and used [Tjhis hunters, fanity provides speaking protection in to them. bill for Because of Ca- actions, sey’s anglers, the two hunters chances and ranchers who are missed farmers control, engaged predator persons in from shoot. provides part: appeal 36-1510 in 2. On an order of the district court (1) reviewing by magistrate, person determination made shall: No (a) of, Intentionally independent with the interfere lawful tak- this Court reviews the trial court ing predator by or lawful regard, of wildlife control but with due for the district court’s inter- another; Bitt, or appellate mediate decision. State harass, bait, (b) Intentionally drive or disturb (1990) 798 P.2d 44 n. 1 n. any purposes disrupting for the law- animal Mathewson, (citing City 78 Idaho Lewiston thereof; taking pursuit ful or (1956)). This (c) any any in area Enter or remain where question exercises free of law of review over may be taken with the inter- animal intent to Bitt, constitutionality of a statute. 118 Idaho taking pursuit fere with the lawful of wild- 798 P.2d at 44. life; or (d) destroy any way Damage any lawful hunting with the intent to with blind interfere hunting____ usage for Amendment is protected by the First speech ac- intentionally interfere with these

who overbreadth doctrine driving away game unconstitutional. The by scaring or tivities right person whose animals, recognizes the predators. activities fish or Such to chal- is not speech states and or conduct have been carried on other sweeps its face too targeted by protest groups lenge a statute which on may be *3 protected disruptive broadly substantially states reaches for such tactics. Other and enacted Members problem expression.4 kind of have Amendment with this First of imposed the City Angeles and have Los v. Tax- City similar statutes Council of of 789, 800, Vincent, in penalties contained this bill. 104 same 466 U.S. payers for (1984). 2118, 2126, 772 80 L.Ed.2d S.Ct. 13320, Purpose, H.B. No. 88 of RS Statement danger that the There must be a realistic (1987). recog- compromise significantly statute will reject argument. 36- this I.C. We rights persons not of nized First Amendment 1510(l)(e) face, not, regulate does on its challenged on court for it to be before the speech. speech types of On certain Id., 799, grounds. 466 U.S. overbreadth face, implicates only conduct the statute 2126; Village Es- 104 S.Ct. Hoffman taking of interferes with the lawful Estates, Inc., 455 Flipside, tates Hoffman wildlife, necessarily ex nothing there is and 1191, 494, 1186, 489, 71 102 S.Ct. U.S. Further, legis pressive that conduct. about (1982). 362, 368 L.Ed.2d history not render unconstitution lative stan al a statute that meets constitutional 36-1510(l)(c) a substantial reaches I.C. O’Brien, States v. dards on its face. United constitutionally protected conduct. amount of 1682, 383, 1673, 367, 20 88 S.Ct. 391 U.S. entering or against someone prohibition Its (1968). considering Even the L.Ed.2d 672 remaining property with the “intent purpose, we are not convinced statement of speech in its protected interfere” includes illicit mo establishes the that the statement does not re- proscriptions. The subsection by appellant. The statement alleged tive limit- and it is not quire physical interference prevent interference indicates the desire speech, as prohibiting unprotected such ed to group tak by any person or with the lawful City obscenity. See fighting words or pro specifically ing of and does wildlife Hill, 451, Houston, 107 Texas v. 482 U.S. viewpoints speech expression or the hibit (1987) (acts 2502, such 96 L.Ed.2d 398 S.Ct. group. any specific interest encompass and harassment as interference physical unless as conduct verbal as well II. defined). Thus, substantial otherwise speech could be affect- protected amount of IS OVERBROAD statute, by and there is ed—and chilled — Alternatively, appellant argues that sig- could danger that the statute a realistic 1510(l)(c) unconstitutionally is recognized First nificantly compromise position agree.3 that we overbroad. With example, rights. For someone Amendment could be an area where wildlife recog might enter doctrine The overbreadth than nothing more legally hunted and do which has the effect nizes that a statute hunting and his opposition his chilling inhibiting announce potential effect of (1986) 645, (similarly declining argu 701 93 L.Ed.2d Appellant’s her overbreadth brief frames 3. Newman, I, 9); 108 United States and art. State v. in terms of both the to consider ment However, (1985) the substance of n. 25 Idaho Constitutions. 696 P.2d 866 Idaho 15 n. solely constitu argument on federal is based (same). only cites federal constitutional tional law and argu any state constitutional cases. Without challenge. Casey a facial overbreadth can make by appellant, we decline to determine ment Paul, Minnesota, See, City e.g., St. R.A.V. applied under the First the rules here whether -, 120 L.Ed.2d 112 S.Ct. U.S. I, § apply equally art. 9 of the Amendment (a (1992) (White, concurring) party can chal J. Constitution, wording dif of which is lenge face on overbreadth a statute on its in the First Amendment. from that found ferent protected grounds her conduct is even if Evans, Gardner v. parties). potential effect on third of the because denied, 107 S.Ct. cert. 479 U.S. outset, as attenuates one at the taking. a limited Such interfere with such intention to it that unprotected behavior otherwise in violation of subsection person would be moves to sanction (l)(c) forbids the State protected yet his actions constitute toward conduct “pure speech” § 36- find that speech. We free within expressive if including conduct —even broadly sweeps too —falls criminal laws valid scope of otherwise particular of a expressions under its terms state interests legitimate that reflect Amend- protected by the First point of view over comprehensive controls maintaining ment. con- harmful, constitutionally unprotected Casey was convict- previously, As indicated laws, broadly if Although too such duct. conviction under appeals from her ed and worded,’’ speech to may deter (l)(c) it is of I.C. subsection extent, point there comes unknown some *4 only that we address. this subsection prediction— best a that effect —at where 1510(l)(c) indispensable § is not an Code confidence, invalidating cannot, justify with may be stricken part of the statute and a prohibiting on its face and so a statute Voyles City Nampa, v. therefrom. against enforcing statute the State (1976). 597, 600, 1217, 1220 power admittedly its that is within conduct fully operative in of the statute is The rest put the matter another proscribe. to To portion express of that and we the absence and not conduct way, particularly where constitutionality. Regan opinion as to its no involved, merely we believe speech is Inc., Time, 104 S.Ct. 468 U.S. only must not overbreadth of statute (1984). 82 L.Ed.2d well, judged in real, but substantial as be argues that I.C. 36- Appellant further plainly legitimate to the statute’s relation 1510(l)(c) time, place and an unreasonable is sweep. it is void for manner restriction and that Broadrick, at 2917. 413 U.S. at 93 S.Ct. vagueness. we hold that I.C. 36- Because substantiality a statute’s “Measuring the overbroad, unconstitutionally we is alia, requires, inter apparently overbreadth arguments. appellant’s other do not reach balancing of valid rough of the number po compared to the number of applications CONCLUSION tentially applications____ [A]n over- invalid 36-1510(l)(c) is unconstitu- Idaho Code duty provide the challenger has a breadth tionally appellant’s and conviction overbroad poten idea of the number of court with some judgment of cannot stand. The thereunder per the statute tially applications invalid is vacated. conviction (1st 22, 30 Magill Lynch, 560 F.2d mits.” Cir.1977), 434 U.S. 98 S.Ct. cert. denied JOHNSON, and BISTLINE and JJ. 1236, 55 L.Ed.2d 763. REINHARDT, Tern., J. Pro concur. standards, light In of the above SILAK, Justice, dissenting. that the statute at preme determined Court Supreme has The United States Court substantially in Broadrick was issue application stated that of the overbreadth overbroad, may “whatever overbreadth medicine”, “strong and that “[i]t doctrine is through case-by-ease cured exist should be sparingly employed by the has been its analysis of the fact situations to which only as a last resort. Facial overbreadth sanctions, assertedly, may applied.” not be limiting con- not been invoked when a Broadrick, has 93 S.Ct. 413 U.S. placed on the struction has been or could be apply I the same standards 2917. would Broadrick v. Okla- challenged statute.” in this case. the same result reach homa, 601, 613, 93 S.Ct. 413 U.S. prohibits from enter- persons § 36-1510(l)(c) (1973). went on The Court may 37 L.Ed.2d ing remaining in areas where animals say: with the the intent to interfere be taken with This least, taking pursuit of wildlife. lawful very ... facial overbreadth [A]t the “pure speech”, prohibit provision tradi- adjudication exception is an to our scope function, which is within ... but conduct practice tional rules of Casey has not criminal laws. otherwise valid idea of the

provided the court with some applications potentially invalid number 36-1510(l)(c) permits, and I am which I.C. of this unpersuaded that overbreadth light of the number is substantial statute applications compared to the number of valid applications. Although potentially invalid 36-1510(l)(c) may deter un- expressive conduct some speech or extent, point not do so to the known it does justifies invalidating the effect where that rather, would, give I provision on its face. limiting so construction remaining any “in proscribe entering or as to with any animal be taken area where with the [physically] intent to interfere This taking pursuit of wildlife.” lawful *5 effectually applications those eliminate would impli- might potentially of the statute which freedoms, pre- while cate first amendment applications further the serving those purposes statute. legitimate of the Casey’s Accordingly, I affirm convic- would 1510(l)(c). Casey was tion under I.C. constitutionally any form of engaged waving expression in protected speech or chukars, and screaming at arms and application of I.C. therefore infringe Casey’s constitutional the facts of this case. Whatev- rights under 36- exist er overbreadth through case-by- cured should be to which analysis of the fact situations case sanctions, assertedly, may not be constitu- tionally applied. Idaho, Plaintiff-Respondent,

STATE HORKLEY, Harlo James Defendant-Appellant.

No. 20373. Appeals of Idaho. Court of May