dissenting.
I find Idaho Code § 18-7008(8) unconstitutionally overbroad as applied to defendant Korsen. Therefore, I respectfully dissent.
ANALYSIS
This Court determines whether a person’s constitutional rights have been violated independently of the lower court. Willie v. Bd. of Trustees, 138 Idaho 131, 59 P.3d 302 (2002) (citing Bradbury v. Idaho Judicial Council, 136 Idaho 63, 67-68, 28 P.3d 1006, 1010-11 (2001)). A statute that prohibits legitimately regulated conduct, but also prohibits constitutionally protected conduct, may be subject to invalidation under the overbreadth doctrine. State v. Leferink, 133 Idaho 780, 784, 992 P.2d 775, 779 (1999). The first step in applying the overbreadth doctrine requires a determination of whether the statute in question regulates constitutionally protected conduct. State v. Bitt, 118 Idaho 584, 587-88, 798 P.2d 43, 46—47 (1990). If that question is answered affirmatively, the second step in applying the overbreadth doctrine requires one to determine whether the statute precludes significantly more protected conduct than is necessary. Id. In a situation where a statute is purportedly overbroad as applied, this Court need only consider whether the statute precluded a significant amount of the defendant’s protected conduct. See State v. Hammersley, 134 Idaho 816, 820-21, 10 P.3d 1285, 1288 (2000).
Under I.C. § 17-7008(8), a person willfully commits trespass, a crime punishable as a misdemeanor, when he/she is notified by the owner, or an authorized agent, of real property to immediately depart and refuses to do so upon notification. The statute makes no attempt to distinguish between privately or publicly owned real property. The statute, while not directly implicating protected conduct, clearly may regulate protected conduct, freedom of speech occurring on publicly owned property, in particular.
Having answered the question whether the trespass statute regulates protected conduct in the affirmative, the next question in an “as applied” analysis is whether the trespass statute precluded significantly more of Korsen’s protected conduct than necessary. The record shows Korsen went to the office of the Idaho Department of Health and Welfare (Health and Welfare), a publicly owned building located on public property, in order to discuss a government imposed child support obligation. Korsen informed a- security guard he might get loud. As predicted, Korsen became loud while discussing his case with a Health and Welfare employee after he was informed only a court could modify his child support obligation. At some point, the security guard asked if he should call the police, to which Korsen replied it would be a good idea to call the police. Korsen refused to wait for the police outside the building. When the police arrived, the Health and Welfare Director at the building was informed he must first ask Korsen to leave the building before the police could arrest him. *719The Director discussed Korsen’s support obligations with him, but advised Korsen only a court could modify his support obligation as he requested. Korsen stated he refused to leave the building until someone at Health and Welfare did something to help him. Though he raised his voice, Korsen never used profanity or offensive language, nor did he threaten anyone, physically or verbally. The Director eventually asked Korsen to leave and when he refused, the officer arrested him for trespassing.
The majority states Korsen went to the Health and Welfare building to conduct legitimate business, but when that legitimate business ended and Korsen refused to leave, he was in violation of I.C. § 18-7008(8). The majority correctly states the Health and Welfare building is not a traditional public forum. However, it is a public building located on public property and Korsen did have a clear right to be there to discuss a state imposed support obligation. Korsen, in exercising his First Amendment rights in a public building to public personnel, reacted to what is undoubtedly a very emotional issue for him. I.C. § 18-7008(8) is a criminal statute meant to penalize criminal behavior. The facts in the record simply do not support the idea that Korsen’s behavior rose to the level of criminal conduct. The trespass statute, in providing a legal means for Health and Welfare to rid itself of Korsen, a citizen occupying its building, precluded significantly more of Korsen’s protected speech than necessary.
It is arguable that the decisions of the magistrate and district courts take the same position as this dissent. Both courts found I.C. § 18-7008(8) vague and/or overbroad as applied to public property. Rather than engaging in a “hybrid” analysis that confused the “as applied” and “facially” vague and/or overbroad analyses as the majority finds, it seems both lower courts were stating I.C. § 18-7008(8) was vague and/or overbroad as applied to Korsen’s exercise of his First Amendment rights on public property.
For these reasons, I would affirm the judgment of the magistrate court.