NO. 93-404 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

-. Plaintiff and Appellant, 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Joseph P. Mazurek, Attorney General, 

Chris Tweeten (argued), Chief Deputy Attorney 

General, Helena, Montana 

Mike Salvagni, Gallatin County Attorney, 

Bozeman, Montana 

For Respondent: 

Richard Ranney (argued) and Shelton Williams, 

Williams & Ranney, Missoula, Montana 

Noel K. Larrivee, Larrivee Law Offices, 

Missoula, Montana 

For Amicus Curiae: 

Lon J. Dale, Milodragovich, Dale & Dye, 

Missoula, Montana (Montana Shooting Sports 

Association, Inc., Western Montana Fish and 

Game Association, Inc., and Michigan 

United Conservation Clubs) 

Filed: 

Submitted: April 19, 1994 

Decided: June 9, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant John Lilburn was charged in the Gallatin County 

Justice Court with the offense of hunter harassment in violation of 

5 87-3-142(3), MCA. He was convicted of that charge following a 

jury trial and appealed his conviction to the District Court for 

the Eighteenth Judicial District in Gallatin County. The District 

Court held that 5 87-3-142, MCA, in its entirety, is facially 

unconstitutional in that it is both overbroad and vague, 

impermissibly infringing on the First Amendment right to free 

speech and the Fourteenth Amendment right to due process guaranteed 

by the United States Constitution, 

We reverse the District Court. 

The State raises the following issues on appeal: 

1. Is Montana's Hunter Harassment Law, found at 5 87-3-142, 

MCA, void because it is overbroad in violation of the First 

Amendment to the United States Constitution? 

2. Is 1 87-3-142, MCA, void because of vagueness in 

violation of the Fourteenth Amendment to the United States 

Constitution? 

In March 1990, the Department of Fish, Wildlife, and Parks 

(DFWP) allowed three persons whose names had been drawn from a 

permit pool to hunt bison which had migrated from Yellowstone 

National Park. One of the persons who received a permit was Hal 

Slemmer . 

On the morning of the hunt, when the DFWP personnel located 

the bison, a group of 11 persons on snowmobiles and cross-country 

skis were seen attempting to herd the bison back into the park. 
The demonstrators were warned that this was a legal hunt, and were 

told not to interfere with the hunters. The hunters were also 

warned about the presence of the demonstrators and were cautioned 

to conduct the hunt safely. 

Warden David Etzwiler of the DFWP accompanied Slemmer to a 

clearing where the bison were crossing. When one of the animals 

was in sight, Slemmer sighted his rifle and prepared to pull the 

trigger. At that time, John Lilburn, one of the protesters, moved 

in front of Slemmer, placing himself between Slemmer and the 

targeted bison at a distance of 10 to 12 feet from the muzzle of 

Slemmerls rifle. Slemmer lifted his rifle when he saw Lilburnls 

head and shoulders come into the scope of the gun. Warden Etzwiler 

approached Lilburn and told him that this was a lawful hunt and not 

to interfere. Slemmer moved about six feet to his left and 

selected another bison from the group. He raised his rifle and 

took aim through the scope. Lilburn again moved in front of 

Slemmer. Slemmer testified that when he saw Lilburn's face in his 

scope, he "jerked the gun up quickly because I had been squeezing 

on the trigger. '' 

Warden Etzwiler and Slemmer got on their snowmobiles and moved 

to a different area where Slemmer shot and killed a bison before 

Lilburn and the other protesters caught up with them. 

No arrests were made at that time. However, after DFWP 

officials conferred with the Gallatin County Attorney, Lilburn was 

charged with the offense of harassment, a misdemeanor, in violation 

of 5 87-3-142(3), MCA. The complaint filed against Lilburn in the 

Gallatin County Justice Court alleged that he disturbed a hunter 
with the intent to dissuade or prevent the taking of a bison when 

he placed himself between the bison and the hunter who was aiming 

a loaded rifle at the animal. 

None of the other protesters were charged with a violation of 

this same statute. 

Lilburn filed a declaratory judgment action in Federal 

District Court challenging the constitutionality of 5 87-3-142(3), 

MCA, on a First Amendment basis. The U.S. District Court dismissed 

Lilburn's complaint, holding that there were no special 

circumstances warranting federal intervention in an ongoing state 

criminal action, and therefore, Lilburn's case did not merit an 

exception to the abstention doctrine enunciated in Younger v. Harris 

(1971), 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669. AS a basis 

for its conclusion, the Federal Court concluded that the goal of 

the statute "is clearly reasonablen because "hunting is a 

legitimate activity which the state may protect in any reasonable 

and constitutionally permissible manner" and that this statute 

primarily Itproscribes behavior which interferes with an individual 

actually engaged in the lawful taking of a wild animal." 

The Ninth Circuit Court of Appeals subsequently affirmed the 

U.S. District Court's dismissal of Lilburn's constitutional 

challenge. Lilbumv. Racicot (9th Cir. July 13, 1992), No. 91-35310. 

Lilburn was convicted following a jury trial in Gallatin 

County Justice Court. He appealed his conviction to the District 

Court and alleged that the harassment statute was unconstitutionally overbroad and vague. By order dated June 24, 1993, the 

District Court reversed the conviction and dismissed the complaint 

4 
brought against Lilburn based on its determination that 5 87-3-142, 

MCA, is unconstitutional on its face, and therefore, is invalid. 

The State appeals. 

STANDARD OF REVIEW 

A legislative enactment is presumed to be constitutional and 

will be upheld on review except when proven to be unconstitutional 

beyond a reasonable doubt. Cily of Billings v. Laedeke (1991) , 247 Mont. 

151, 154, 805 P.2d 1348, 1349 (citing Fallon County v. State (1988), 231 

Mont. 443, 445-46, 753 P.2d 338, 339-40). 

ISSUE 1 

Is Montana's Hunter Harassment Law, found at 5 87-3-142, MCA, 

void because it is overbroad in violation of the First Amendment to 

the United States Constitution? 

The statute at issue in this appeal, commonly known as 

Montana's Hunter Harassment Law, provides as follows: 

87-3-142. Harassment prohibite&. (1) No person may 

intentionally interfere with the lawful taking of a wild 

animal by another. 

(2) No person may, with intent to prevent or hinder 

its lawful taking, disturb a wild animal or engage in an 

activity or place in its way any object or substance that 

will tend to disturb or otherwise affect the behavior of 

a wild animal. 

(3) No person may disturb an individual engaged in 

the lawful taking of a wild animal with intent to 

dissuade the individual or otherwise prevent the taking 

of the animal. 

(4) Nothing in this section prohibits a landowner 

or lessee from taking reasonable measures to prevent 

imminent danger to domestic livestock and equipment. 

Lilburn was convicted of violating subsection (3) of this 

statute because he twice disturbed Slemmer's attempt to lawfully 

shoot a bison when he placed his body between Slemmer and the 

animal. The District Court, in its analysis of subsection (3) for 
overbreadth, concluded that 5 87-3-142 (3) , MCA is "obviously 

content-based" because it "prohibits communication which is 

intended to dissuade a person from hunting, while allowing 

communication which encourages hunting." The court further 

concluded that the statute's prohibition would encompass "all 

verbal and expressive conduct which has the intention to dissuade 

from hunting," and therefore, such things as "prayer vigils at 

trailheads, the singing of protest songs or the burning of hunting 

maps, if done with the intent to dissuade a hunter, would be 

violations of the statute." Therefore, the court held that to the 

extent the statute "implicates constitutionally protected speech 

and expressive conduct, it is overbroad." 

On appeal, the State contends that the court erred when it 

invalidated 5 87-3-142 (3) , MCA, on the basis of overbreadth because 

the statute primarily proscribes conduct rather than speech, and to 

the extent that protected expression is reached, it regulates on a 

content-neutral basis only the time, place, and manner of 

expression. The State asserts that the statute is not overbroad 

because any potential unconstitutional applications are speculative 

and insubstantial when judged against the plainly legitimate scope 

of this statute which is to promote safety in sport hunting and 

protect those engaged in lawful activities from interference. We 

agree. 

We note first that Lilburn has raised a facial constitutional 

challenge and does not aver that the statute, as applied to him, 

unconstitutionally abridges his First Amendment guarantee of 

freedom of speech. Lilburn was not charged on the basis of any 
idea or view that he expressed, and he does not contend that his 

own conduct, which formed the basis of the charges brought against 

him, was constitutionally protected. Instead, he contends that the 

statute, as written, could potentially reach a substantial amount 

of protected speech or expressive conduct. 

A facial overbreadth challenge is an exception to the general 

rule that statutes are evaluated in light of the situation and 

facts before the court. RA.K v.St.PauI (1992), 120 'L. Ed. 2d 305, 

336, 112 S. Ct. 2538, 2558 (J. White, concurring) (citing Broadrick 

v. Oklahoma (1973), 413 U.S, 601, 610, 93 S. Ct. 2908, 2915, 37 

L. Ed. 2d 830, 838-39). This Court has similarly recognized that 

a statute which can be appliedto constitutionally protected speech 

and expression may be found to be invalid in its entirety, even if 

it could validly apply to the situation before the court. City of 

Wzitefihv. OgShaughnessy (1985), 216 Mont. 433, 704 P.2d 1021. 

In his overbreadth challenge, Lilburn disputes the State's 

assertion that the statute primarily regulates conduct but contends 

that it criminalizes a broad category of speech and expressive 

conduct based on its content. He claims that the law reaches 

primarily conduct which conveys an anti-hunting sentiment, while 

allowing, under exactly the same circumstances, conduct and speech 

which conveys any other message. Lilburn cites RAY v. St. Paul, 120 

L. Ed. 2d at 316, 112 S. Ct. at 2542, for the proposition that the 

statute is "facially unconstitutional in that it prohibits 

otherwise permitted speech solely on the basis of the subjects the 

speech addresses." 
Broadrick, 413 U.S. at 601, is the leading case addressing the 

First Amendment overbreadth doctrine. In Broadrick, the Supreme 

Court clarified that a statute or government regulation should be 

invalidated on the basis of facial overbreadth in only limited 

situations: 

In such cases, it has been the judgment of this Court 

that the possible harm to society in permitting some 

unprotected speech to go unpunished is outweighed by the 

possibility that protected speech of others may be muted 

and perceived grievances left to fester because of the 

possible inhibitory effects of overly broad statutes. . . . . . . Application of the overbreadth doctrine in 

this manner is, manifestly, strong medicine. It has been 

employed by the Court sparingly and only as a last 

resort. Facial overbreadth has not been invoked when a 

limiting construction has been or could be placed on the 

challenged statute. [Citations omitted]. 

Broadrick, 413 U.S. at 612-13. The Court in Broadrick adopted 

limitations on the overbreadth doctrine "particularly where conduct 

and not merely speech is invol~ed,~~ and held that a statute which 

has constitutional applications may be facially invalidated for 

overbreadth only if its overbreadth is "real, but substantial as 

well, judged in relation to the statute's plainly legitimate 

sweep." Broadrick, 413 U.S. at 615. The Court made clear that the 

existence of imaginary potential unlawful applications does not by 

itself render a statute facially overbroad. Broadrick, 413 U.S. at 

In Members of the City Council v. Taxpayers for fincent (1984) , 4 66 U. S. 789, 

800-01, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d 772, 783-84, the 
Supreme Court further explained the parameters of the overbreadth 

doctrine: 

It is clear . . . that the mere fact that one can 

conceive of some impermissible applications of a statute 

is not sufficient to render it susceptible to an 

overbreadth challenge. On the contrary, the requirement 

of substantial overbreadth stems from the underlying 

justification for the overbreadth exception itself--the 

interest in preventing an invalid statute from inhibiting 

the speech of third parties who are not before the Court. . . . In short, there must be a realistic danger that the 

statute itself will significantly compromise recognized 

First Amendment protections of parties not before the 

Court for it to be facially challenged on overbreadth 

grounds. 

After reviewing the statute in question and the arguments set 

forth by Lilburn, we conclude that this is precisely the type of 

situation where the limitations imposed by the Supreme Court on the 

overbreadth doctrine must be carefully applied. Before the hunter 

harassment statute can be invalidated on its face, there must be a 

clear showing that the potential invalid applications of the 

statute be both "real and substantial." For the reasons stated 

below, we conclude that no such showing has been made in this case. 

Under the tests articulated in Broadrick and Taxpayersfor Vincent, we 

must determine whether there is a real and substantial probability 

that 5 87-3-142 (3), MCA, will compromise recognized First Amendment 

protections when judged in relation to any "plainly legitimate 

sweep1' of the statute. 

The District Court based its holding regarding overbreadth on 

its determination that the statute is llobviously content-based1# and 

could potentially proscribe 

all verbal and emressive conduct which has the intention 

to dissuade from huntina. Conduct such as prayer vigils 

at trailheads, the singing of protest songs or the 
burning of hunting maps, if done with the intent to 

dissuade a hunter, would be violations of the statute. 

[Emphasis added]. 

It was the court's opinion that the statute prohibits 

communication which is intended to dissuade a person from hunting, 

while allowing a communication which encourages hunting, even if 

such communication prevents or distracts a hunter from taking the 

prey. While this analysis was not necessary to an overbreadth 

analysis under Broadrick, we also disagree with this interpretation 

of the statute. 

All statutes carry with them a presumption of 

constitutionality and it is a duty of the courts to construe 

statutes narrowlyto avoid constitutional difficulties if possible. 

Montana Automobile Association v. Greely (1981) , 193 Mont. 378, 382, 632 P. 2d 

300, 303; Statev. Ytterdahl (1986), 222 Mont. 258, 261, 721 P.2d 757, 

759. This Court made clear that, when construing a statute, it 

must be read as a whole, and terms used in the statute should not 

be isolated from the context in which they are used by the 

Legislature. McClanathan v. Smith (1980), 186 Mont. 56, 61, 606 P.2d 

507, 510. Furthermore, a statute must be construed according to 

the plain meaning of the language used therein. Norfolk Holdings, Inc. 

v. DepamentofRevenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461. 

Section 87-3-142(3), MCA, prohibits a person from disturbing 

another individual engaged in the lawful taking of a wild animal 

with intent to dissuade the individual or otherwise prevent the 

taking of the animal. The term "wild animal" is defined to mean 

"any game animal, fur-bearing animal, or predatory animal," and a 
''takingft is defined to include "pursuit, hunting, trapping, 

shooting, or killing of a wild animal on land upon which the 

affected person has the rigfit or privilege to pursue, hunt, trap, 

shoot, or kill the wild animal." Section 87-3-141, MCA. 

The plain language of the statute, considered in light of 

these limiting definitions, makes clear that the statute's 

proscriptions reach only activities which occur in the field during 

an otherwise lawful hunt. While the disturbance which is 

prohibited may, under other circumstances, result from a verbal 

utterance, it makes no difference what the content of the verbal 

utterance is. The language of the statute does not support the 

assertion that the statute is aimed primarily at pure speech and 

expressive conduct conveying only an anti-hunting sentiment. The 

disturbance could just as well be caused by shouting "fire!" 

Lilburn disagrees that the statute regulates primarily conduct 

and claims that the Legislature's inclusion of the word "dissuade" 

demonstrates that the intent of the statute is to proscribe only a 

very small class of expression which is uttered or carried out with 

the intent to dissuade a hunter from taking an animal. He contends 

it is the Legislature's use of the term "dissuade" that renders 

this a content-based regulation. 

The Supreme Court has provided clear guidelines for 

distinguishing a content-neutral regulation from one which is 

impermissibly content-based: 

The principal inquiry in determining content 

neutrality . . . is whether the government has adopted a 

regulation of speech because of disagreement with the 

message it conveys. The government's purpose is the 

controlling consideration. A regulation that serves 
purposes unrelated to the content of expression is deemed 

neutral, even if it has an incidental effect on some 

speakers or messages but not others. [citation omitted]. 

Wardv. RockAgainstRacism (1989), 491 U.S. 781, 791, 109 S. ct. 2746, 

2754, 105 L. Ed. 2d 661, 675. The determination of whether a 

regulation is content-based turns not on whether its incidental 

effects fall more heavily on expression of a certain viewpoint, but 

rather on whether the governmental purpose to be served by the 

regulation is not motivated by a desire to suppress the content of 

the communication. City of Renton v. Playtime Theatres, Znc. (1986) , 475 U. S. 

41, 106 S. Ct. 925, 89 L. Ed. 2d 29. Therefore, even if a statute 

has a discriminatory impact, it can be determined to be 

content-neutral if its objective neither advances nor inhibits a 

particular viewpoint. 

Neither of the parties dispute the fact that safety and an 

orderly regulation of hunting are legitimate state goals. This 

Court has made clear that "[i]n the area of wildlife regulation, it 

is sufficient to state the Legislature may impose such terms and 

conditions as it sees fit, as long as constitutional limitations 

are not infringed. Statev. Jack (l975), 167 Mont. 456, 460, 539 P.2d 

726, 728. 

Here, the legislative history demonstrates a motivation for 

adoption of this statute which is unrelated to the suppression of 

speech based on content. The Legislature was aware that 

confrontations between hunters and opponents of sport hunting, 

particularly with respect to the controversial bison hunts, could 

occur in the field when hunters were armed and actively pursuing 
their prey. It was recognized that this posed a- serious danger to 

both the hunters and those interfering with their activities. 

Contrary to the court s conclusion that the legislation was 

obviously content-based because it was prompted by past activities 

opposing the bison hunts, the legislative history supports a 

conclusion that the motivation was to prevent violent 

confrontations and to prevent interference with lawful activities. 

Moreover, we do not find any support in the legislative history for 

the contention that this was an attempt to silence the views of 

those opposed to the bison hunt or other types of sport hunting. 

It was recognized that persons opposed to sport hunting had the 

right to express their views, but that there were other forums more 

suited to political discourse. 

While Lilburn asserts that the use of the word udissuadel* 

relates the statute entirely to speech and expressive conduct, we 

note that the Legislature did not use the word "dissuade" in 

isolation. Reading the statute as a whole, it is clear that the 

conduct proscribed is the "dist~rbance~~ of a hunter engaged in a 

lawful activity, when it is dona with the intent to either dissuade 

the hunter or to prevent the taking of the animal. The fact that 

speech or actions may disturb a hunter is not dependent on the 

content of what is expressed, or whether it is prompted by an 

anti-hunting sentiment. A person could blurt out anything at the 

moment a hunter is trying to shoot, and this could l1disturbW the 

hunter by distracting him or her, or by scaring the animal away. 

The content of what was said would be irrelevant. Or, persons 

could attempt to prevent the taking of the animal for reasons other 
than opposition to hunting, such as a desire to shoot the animal 

themselves. Furthermore, in either of these instances, before the 

conduct would be culpable, the necessary scienter would have to be 

proven. 

We recognize that the consequences of this statute may fall 

more heavily on persons opposed to hunting than on those with 

different viewpoints, but this does not by itself render the 

statute content-based. The existence of a content-neutral 

motivation for the statute is all that is required under Ward and 

Renton to refute the characterization that the statute impermissibly 

regulates speech or conduct based on the message conveyed. We are 

satisfied that such a motivation exists in this instance. 

Therefore, we reject the District Court's conclusion that the 

statute is content-based. 

Even though we disagree with the District Court's rationale 

for a holding of overbreadth, we realize, as conceded by the State, 

that there may be instances where protected expression or pure 

speech may violate the statute. However, before invalidating the 

statute on the basis of overbreadth, we must consider the 

limitations set forth in Broadrick to determine if the possible 

unconstitutional applications are real and substantial when judged 

in relation to the plainly legitimate scope of the statute. 

Lilburn contends that there are a significant number of 

situations where the law could be applied in an unconstitutional 

manner and urges the Court to "use our imagination to think of the 

various ways the statute might be applied against speech or 
expressive conduct." However, the test is not whether 

hypothetical remote situations exist, but whether there is a 

significant possibility that the law will be unconstitutionally 

applied. Broadrick, 413 U.S. at 615. 

Based on our conclusion that the plain language of the statute 

is directed primarily at conduct and if at speech, then without 

regard to its content, we conclude, in the absence of evidence 

otherwise, that Lilburn has not shown that any overbreadth of the 

statute is "substantial . . . judged in relation to the statute's 

plainly legitimate sweep. I' Broadrick, 413 U. S. at 615. 

Finally, we address the District Court's comparison of the 

Montana statute to a Connecticut hunter harassment statute which 

was held unconstitutional on the basis of overbreadth. Dormanv. Satti 

(D. Conn. 1988), 678 F. Supp. 375, affpd, 862 F.2d 432 (2nd Cir. 

l988), cert. denied (1989), 490 U.S. 1099, 109 S. Ct. 2450, 104 

L. Ed. 2d 1005. 

The Federal District Court, when it rejected Lilburn's 

constitutional challenge, noted that Montana's hunter harassment 

statute is distinguishable from the Connecticut statute, and does 

not unconstitutionally interfere with free speech. In Dorman, the 

statute reached conduct which interfered with both the actual 

taking of game and with "acts in preparationn for the taking of 

game. The court held that the statute could legitimately proscribe 

interference with "lawful taking," but not "acts in preparation": 

So long as the legislature elects to permit hunters to 

pursue their activity on property, during times, and 

under circumstances set aside for that purpose, it may 
also regulate the conduct of nonhunters in those 

contexts. Considerations of safety, alone, would justify 

such regulation, even if it impinges incidentally upon 

protected speech. On the other hand, the propriety of 

hunting and taking wildlife is a fair subject for 

spirited debate. Once a hunter is outside the scope of 

his g*lawful hunt" he is no different from any other 

unreceptive listener who must, "in vindication of our 

liberties,Ir be Ifexposed to the onslaught of repugnant 

ideas." [Emphasis added]. 

Dorman, 678 I?. Supp. at 383. 

The statute at issue in this case, 5 87-3-142 (3), MCA, is 

clearly limited in scope to activities which interfere with persons 

actively engaged in the lawful taking of an animal and does not 

suffer from the same overbreadth as the statute in Dorman. 

We hold that 5 87-3-142 (3), MCA, is not unconstitutionally 

overbroad. To the extent that the statute may reach 

constitutionally protected expression, we conclude, as did the 

Supreme Court in Broadrick, 413 U.S. at 615-16, that whatever 

overbreadth may exist should be cured through case-by-case analysis 

of the fact situations where the statute is assertedly being 

applied unconstitutionally. 

ISSUE 2 

Is 5 87-3-142, MCA, void because of vagueness in violation of 

the Fourteenth Amendment to the United States Constitution? 

The District Court also invalidated the hunter harassment 

statute on the basis of vagueness. The court concluded that 

several key terms are left undefined, and that the statute 

impermissibly leaves to the discretion of law enforcement and the 

courts, without specific statutory guidance to law enforcement 
officers or the public at large, what type of conduct is 

prohibited. 

In VZage of Hoffman Estates v. Flipside, Hoffman Estates, Inc. ( 198 2 ) , 4 55 

U.S. 489, 497, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371, the 

Supreme Court set forth guidelines for analyzing a facial challenge 

on the basis of overbreadth and vagueness. When such a challenge 

is raised, a court must first determine whether the enactment 

reaches a substantial amount of constitutionally protected conduct. 

Here we have concluded that the statute does not, and that the 

overbreadth challenge must fail. The Supreme Court has also made 

clear that if the challenged statute is reasonably clear in its 

application to the conduct of the person bringing the challenge, it 

cannot be stricken on its face for vagueness. Hoffman Estates, 455 

U.S. at 494-95. "One to whose conduct a statute clearly applies 

may not successfully challenge it for vagueness. Parker v. Levy 

(1974), 417 U.S. 733, 756." Hoffman Estates, 455 U.S. at 495 n.7. 

In this instance, regardless of the hypothetical situations 

that may exist, Lilburnts conduct was unquestionably proscribed by 

the hunter harassment statute. Lilburn intentionally twice stood 

between Slemmer and the targeted bison, directly in the line of 

fire, in order to prevent the animal from being shot. It is 

difficult to conceive of an argument that Lilburn did not I1disturbtt 

Slemmer while Slemmer was engaged in the lawful taking of a wild 

animal with the intent to prevent or dissuade him from making the 

shot. 
We conclude that Lilburn does not have standing to raise a 

facial vagueness challenge. The court's order with respect to the 

issue of vagueness is reversed on this basis. 

We reverse the District Court's conclusion that the statute 

under which Lilburn was charged is impermissibly overbroad and 

vague, and vacate the court's dismissal of the charges brought 

against Lilburn. Furthermore, although Lilburn's constitutional 

challenge focused only on subsection (3) of the statute, the 

language of the District Court's order invalidated 5 87-3-142, MCA, 

in its entirety. We find no basis in the record for the court's 

determination that the remaining sections of the statute are 

constitutionally deficient. We, therefore, reverse the order of 

the District Court with regard to all parts of 5 87-3-142, MCA. 

This case is remanded to the District Court for further 

proceedings consistent with this opinion. 

June 9, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Hon. Joseph P. Mazurek, Attorney General 

Chris Tweeten, Deputy 

Justice Bldg. 

Helena, MT 59620 

Mike Salvagni 

Gallatin County Attorney 

615 S. 16th Ave., Rm. 100 

Bozeman, MT 59715 

Noel K. Larrivee 

hive Law Offices 

334 E. Broadway 

Missoula, MT 59802 

Richard Ranney 

WILLIAMS & RANNEY, P.C. 

P. 0. Box 9440 

Missoula, MT 59807 

Lon J. Dale, Esq. 

MILODRAGOVICH, DALE & DYE P.C. 

P.O. Box 4947 

Missoula, MT 598064947 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA