Binkowski v. State6/24/1999
courts are admonished not "to anticipate a question of constitutional law in advance of the necessity of deciding it, ... to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S. Ct. 2794, 2801, 86 L. Ed. 2d 394, 404 (1985) (quoting Unites States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524, 529 (1969)) (observing that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.)
Although New Jersey courts are not bound by the "case and controversy" requirement of the federal constitution, U.S. Const. art. III, ยง 2, cl. 1, we similarly "will not render advisory opinions or function in the abstract...." Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971); see also New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409-10 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998). We recognize that plaintiffs bring the present action under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, the purpose of which "is to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations," N.J.S.A. 2A:16-51. Nonetheless, even when a declaratory judgment is sought, we are admonished not to "decide a case based on facts which are undeveloped or uncertain." New Jersey Ass'n for Retarded Citizens, Inc. v. New Jersey Dep't of Human Servs., 89 N.J. 234, 241 (1982).
Applying these principles here, we decline to act as a "roving commission," Broadrick, supra, 413 U.S. at 610-11, 93 S. Ct. at 2915, 37 L. Ed. 2d at 839, and decide the constitutionality of the Hunter Harassment Statute based on hypothetical facts where it is reasonably arguable that the proscribed conduct has nothing to do with speech. See O'Brien, supra, 391 U.S. at 375, 88 S. Ct. at 1678, 20 L. Ed. 2d at 679. Notably, plaintiffs have never specified what conduct they would like to pursue that the statute unconstitutionally prohibits. Nor are we guided by the actual application of the statute in those cases prosecuted by the State. Indeed, the record reflects that enforcement of the statute to date has been limited to prosecution of persons based solely on their conduct. For instance, the record contains summonses issued against a hunter for scaring away a rival's game and against a property owner who stole his neighbor's hunting gear because he objected to his neighbor's hunting "too close to his property line."
In sum, we cannot say that the terms of the Hunter Harassment Statute themselves contain a constitutional infirmity that renders the statute facially invalid. Essentially, what plaintiffs argue, without expressly stating so, is that the Hunter Harassment Statute is unconstitutional in all of its applications. See Salerno, supra, 481 U.S. at 745, 107 S. Ct. at 2100, 95 L. Ed. 2d at 707. That position is not supported by the record and is rejected. Accordingly, we hold the statute is a valid regulation of conduct on its face.
B.
We next address plaintiffs' facial overbreadth challenge to the statute. This challenge presents somewhat similar, and yet slightly different concerns from those previously discussed.
Generally, the test for when a court can invalidate a statute on its face for overbreadth under the First Amendment and our State Constitution is whether the statute "reaches a substantial amount of constitutionally protected conduct." State v. Mortimer, 135 N.J. 517, 530 (quoting City of Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398, 410 (1987)), cert. deni
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