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Binkowski v. State6/24/1999
fringe upon an individual's "constitutional rights to free speech, expressive conduct, and assembly." We decline to do so.The United States Supreme Court "has ... repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied." Parker v. Levy, 417 U.S. 733, 760, 94 S. Ct. 2547, 2563, 41 L. Ed. 2d 439, 460 (1974) (quoting CSC v. Letter Carriers, 413 U.S. 548, 580-81, 923 S. Ct. 2880, 2897-98, 37 L. Ed. 2d 796, 817 (1973)). Lest we forget, the statute on its face does not inhibit the exposition of ideas; it simply bans physical conduct which may or may not be protected by the First Amendment. " ven if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the 'remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct....'" Ibid. (ellipses in original).
Additionally, the statute is not overbroad because we construe it to prohibit harassment of the hunter (1) only in places where wildlife may be found or in immediate proximity thereto, and (2) where the actor's intent is to interfere with the lawful taking of wildlife. Indeed, the trial court construed the statute limiting its scope to periods and places where persons are actually hunting and fishing. We agree with that construction and apply the definition of "hunting" formulated in State v. Meinken, 10 N.J. 348 (1952).
In Meinken, the Court construed N.J.S.A. 23:4-44 which regulates the types of weapons allowed for hunting deer. It stated that " enerally speaking the term 'hunting' means the act of searching for, pursuing or chasing game." 10 N.J. at 353. The Meinken Court held that a person was "hunting" within the meaning of N.J.S.A. 23:4-44 when three factors are met: "(1) physical presence in an area where game is believed to be or may be expected to be found; (2) possession of the necessary equipment with which to capture or kill game; and (3) the intention of capturing or killing game if and when the opportunity presents itself." Ibid. Because we read the sections of Title 23 in pari materia, we apply the same definition of "hunting" to the Hunter Harassment Statute. See Mimkon v. Ford, 66 N.J. 426, 433 (1975) (" tatutes which deal with the same matter or subject, and which seek to achieve the same overall legislative purpose, ... should and must be read in pari materia." (citations omitted)). This construction places a reasonable limitation on the reach of the Hunter Harassment Statute in that it circumscribes the area where protestors may not be free to express their anti-hunting ideas, while preserving areas outside the immediate proximity of the hunting grounds for that purpose.
"In appropriate cases, a court has the power to engage in 'judicial surgery' or the narrow construction of a statute to free it from constitutional doubt or defect." New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, supra, 82 N.J. at 75; accord Hamilton Amusement Ctr., supra, 156 N.J. at 280. " narrow and discriminate construction of the key terms of the legislation serves to overcome its major overbreadth objections." New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, supra, 82 N.J. at 81. By narrowing construction of the statute in this way we avoid the possibility of ensnaring a substantial amount of constitutionally protected conduct within the scope of the statute.
Numerous other jurisdictions have considered the constitutionality of their hunter harassment laws. In some instances they have upheld the laws after narrowly construing th
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