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Binkowski v. State

June 24, 1999

GLORIA BINKOWSKI, HENRY FURST AND ROBERT KELMAN, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Before Judges Muir, Jr., Eichen and Coburn.

The opinion of the court was delivered by: Eichen, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 17, 1999

On appeal from Superior Court of New Jersey, Law Division, Hudson County.

In 1993, the New Jersey Legislature enacted a statute entitled "An Act concerning the taking of wildlife, and supplementing Title 23 of the Revised Statutes." L. 1993, c. 11 (codified at N.J.S.A. 23:7A-1 to -3). The Act is commonly referred to as the Hunter Harassment Statute (the Hunter Harassment Statute or the statute).*fn1 Section 2 is entitled "Hindering or preventing the lawful taking of wildlife prohibited; specified acts prohibited" and provides in part:

"No person may, for the purpose of hindering or preventing the lawful taking of wildlife: "a. block, obstruct, or impede, or attempt to block, obstruct, or impede, a person lawfully taking wildlife; "b. erect a barrier with the intent to deny ingress to or egress from areas where wildlife may be lawfully taken; "c. make, or attempt to make, unauthorized physical contact with a person lawfully taking wildlife; "d. engage in, or attempt to engage in, theft, vandalism, or destruction of personal or real property; "e. disturb or alter, or attempt to disturb or alter, the condition or authorized placement of personal or real property intended for use in the lawful taking of wildlife; "f. enter or remain upon public lands or waters, or upon private lands or waters without permission of the owner thereof or an agent of that landowner, where wildlife may be lawfully taken; "g. make or attempt to make loud noises or gestures, set out or attempt to set out animal baits, scents, or lures or human scent, use any other natural or artificial visual, aural, olfactory, or physical stimuli, or engage in or attempt to engage in any other similar action or activity, in order to disturb, alarm, drive, attract, or affect the behavior of wildlife or disturb, alarm, disrupt, or annoy a person lawfully taking wildlife; or "h. interject himself into the line of fire of a person lawfully taking wildlife." [N.J.S.A. 23:7A-2.]

The statute allows the State to seek injunctive relief and civil penalties against violators, authorizes a private cause of action for damages, and permits prosecutions for petty disorderly persons offenses. N.J.S.A. 23:7A-3.

On December 5, 1996, plaintiffs, who contend they are persons interested in the protection of animals in New Jersey,*fn2 filed a complaint against the State of New Jersey seeking a declaratory judgment declaring the statute unconstitutional on its face and enjoining the State from enforcing its provisions. The complaint alleges that the statute violates the state and federal constitutions because it is overbroad, vague and impermissibly content-based, impinging on their constitutional right to free speech and assembly. The complaint also alleges that the statute violates equal protection of the laws and interferes with plaintiff Gloria Binkowski's free exercise of religion.*fn3 At oral argument, plaintiffs conceded that their challenge to the statute is limited to subsections (a) and (g) of N.J.S.A. 23:7A-2.

On September 27, 1997, the Law Division heard oral argument on the parties' cross-motions for summary judgment and, on February 2, 1998, granted the State's motion to dismiss plaintiffs' complaint. In granting the State's motion, the Judge determined that, on its face, the statute does not regulate speech or expressive conduct but is directed at prohibiting physical interference with hunters by those who have the intent to interfere with the lawful taking of wildlife.

Accordingly, the Judge impliedly found the statute was not facially unconstitutional by its express terms. The Judge also determined that the statute was not unconstitutional on the grounds of vagueness or overbreadth. He further concluded that the statute did not violate the Equal Protection Clause or interfere with the free exercise of plaintiff Binkowski's religion.

On appeal, as below, plaintiffs acknowledge that they have not challenged the statute "as applied." Indeed, none of the plaintiffs have engaged in any conduct proscribed by the statute, nor have they been charged with its violation. Their argument is that, on its face, the statute is an unconstitutional restriction on speech because it has only one purpose in mind: to regulate viewpoint. Plaintiffs maintain that those who convey the anti-hunting message will be subject to punishment, while proponents of hunting will not. They therefore contend the statute is an impermissible content-based regulation of speech and "expressive conduct" in violation of the First Amendment and New Jersey's constitution.

Defendants counter that the statute on its face regulates intentionally harassing conduct, irrespective of viewpoint, not speech; but that even if the statute does incidentally burden plaintiffs' speech, the regulation should not be invalidated on a facial challenge. See United States v. O'Brien, 391 U.S. 367, 375, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672, 679 (1968).

I.

We begin our analysis by observing that "whenever a challenge is raised to the constitutionality of a statute, there is a strong presumption that the statute is constitutional." State v. Muhammad, 145 N.J. 23, 41 (1996). The party "challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998). Indeed, in analyzing the constitutionality of a statute "[o]ne of the basic guidelines ... is 'the presumption that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner.'" NYT Cable TV v. Homestead at Mansfield, Inc., 111 N.J. 21, 26 (1988) (quoting State v. Profaci, 56 N.J. 346, 349 (1970)).

II.

The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend I. This provision applies to the states under the Due Process Clause of the Fourteenth Amendment. E.g., Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84 L. Ed. 155, 164 (1939). Article I, paragraph 6 of the New Jersey Constitution states:

"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or ...


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