AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Erin Hartsock, Sam Clarke, Angelina Clarke, Jarrett Hines-Kay, Willy Lusk-Claiborne, Terry Cottle, Jamie Stout and Yvette Stout, Plaintiffs-Appellees and Cross-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellant and Cross-Appellee.
No. 24763.
Supreme Court of New Mexico.
Nov. 17, 1999.
1999-NMSC-044 | 992 P.2d 866
SERNA, Justice.
315
{26} For these reasons, we conclude that Gallup has been “defined out” of
III.
{27}
{28} IT IS SO ORDERED.
BACA, FRANCHINI, SERNA and MAES, JJ., concur.
Cates & Hammel, P.C., Kathryn Hammel, Los Lunas, Mark R. Horton, Clovis, Philip B. Davis, Albuquerque, for Appellees and Cross-Appellants.
OPINION
SERNA, Justice.
{1} The City of Albuquerque (City) appeals from the district court‘s order, entered in response to the parties’ cross-motions for summary judgment, holding that the City‘s juvenile Curfew Ordinance (Curfew) violates the
Facts and Background
Curfew Ordinance
{2} The City enacted the Curfew in order “to provide for the protection of minors from each other and from other persons, to provide for the enforcement of parental control over and responsibility for children, to protect the general public and reduce the incidence of juvenile criminal activities.” Albuquerque, N.M., Revised Ordinances § 12-5-9(A)(2) (1994). The Curfew mandates that it is unlawful for any person under seventeen years of age to remain in a public place or on the premises of an establishment within Albuquerque during curfew hours, for a parent or guardian of a minor to knowingly permit, or by insufficient controls allow, a minor to violate the curfew, and for the owner or employee of an establishment to knowingly allow a minor to remain upon the premises of the establishment during curfew hours. Section 12-5-9(C). Violation of the Curfew is punishable by a maximum fine of $500 and imprisonment of up to ninety days. Albuquerque, N.M., Revised Ordinances § 12-1-99(I) (1994).
STOP Program
{3} The parties stipulated to the following facts. The City implemented the STOP program, a pilot initiative, from July 19 to September 30, 1996, during which the Curfew was enforced Friday through Sunday nights. During this program, 616 children were taken into custody for alleged curfew violations. Eighty-three of the police reports contain no narrative summary explaining the basis for the stop, and of the remaining children, 106 reports indicate that the stop occurred because of some other suspected criminal violation, most often a traffic violation. The vast majority of children stopped and taken into custody for alleged curfew violations were “talking or walking with others.”
{4} Police officers took children into custody under Section 12-5-9 of the Curfew, handcuffed and patted them down at the scene of the curfew violation, and took them to Wells Park Community Center, where the handcuffs were removed. City personnel photographed the children, took physical descriptions, and questioned them. The officers also completed a police report. Information was noted on intake forms, and a copy of these forms was given to the Albu-
{5} The police officers did not inform the children of their constitutional right against self-incrimination prior to or after their arrival at Wells Park. Each child was then required to attend an educational session pertaining to the Curfew ordinance. Parents or guardians were invited, but not required, to attend this session.
Proceedings in the District Court
{6} Plaintiffs filed an action for declaratory and injunctive relief regarding the Curfew for facial constitutional violations in August of 1995, prior to the STOP program. None of the individual Plaintiffs were stopped, taken into custody, cited or prosecuted for violation of the Curfew. The district court held a hearing on the cross-motions for summary judgment in 1997, and issued its final order granting Plaintiffs’ motion on September 25, 1997. The court concluded that: (1) the Curfew Ordinance violates the guarantees of
{7} The City appeals, and Plaintiffs cross-appeal. The parties filed a joint motion under
Discussion
Standing
{8} Plaintiffs argue that they have standing to challenge the Curfew because their “previously-lawful activities during curfew hours [were] curtailed by the Curfew Ordinance.” Plaintiffs assert that their challenge to the Curfew includes the STOP program as an enforcement scheme. The City argues that Plaintiffs have no standing to challenge the STOP program, as none of them were arrested or charged during this program.
{9} We do not believe that our analysis of this case must be predicated upon the arrest and prosecution of the Plaintiffs before they may seek relief. See Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (holding that plaintiffs in an abortion case had “standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution“). As the United States Supreme Court stated in Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citations and internal quotation marks omitted):
When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself [or herself] to actual arrest or prosecution to be entitled to challenge [the] statute that he [or she] claims deters the exercise of his [or her] constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he [or she] should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.
We agree with Plaintiffs that the Curfew curtails their previously legitimate late-night activities, and that the STOP program dem-
Children‘s Code Preemption of the Curfew
{10} Under
{11} Included in the Legislature‘s stated purposes of the
{12} The City argues that the Curfew does not fall within the Delinquency Act of the
{14} The Curfew creates a penal offense by authorizing incarceration for up to ninety days and a fine of up to $500 for each occurrence of an individual under the age of seventeen who remains in any public place or on the premises of any establishment within Albuquerque during curfew hours. See Albuquerque, N.M., Revised Ordinances § 12-1-99(I) (“Each offense, upon conviction is punishable by a fine of not more than $500, or by imprisonment for not more than ninety days, or by both such fine and imprisonment.“). The Curfew ordinance also authorizes a police officer to arrest children sixteen years of age or younger for violating the curfew, see id., § 12-5-9(E), and the City has placed the curfew ordinance within its Criminal Code, see id., § 12-1-1 (“This chapter may be cited as ‘Criminal Code of Albuquerque.‘“). Thus, with its terminology of “arrest,” “conviction,” “punishment,” and “imprisonment,” the City has created a criminal offense that can only be committed by children. Due to this criminal nature of the Curfew, and the fact that it criminalizes only the behavior of people sixteen years of age or younger, it conflicts with the Delinquency Act. We conclude that the Legislature, through the plain language of
{15} The Curfew designates previously lawful behavior of young people as criminal in nature. See City of Roswell v. Gallegos, 77 N.M. 170, 172, 420 P.2d 438, 439 (1966) (noting that “prosecution for violation of a municipal ordinance is a quasi-criminal proceeding“); City of Santa Fe v. Baker, 95 N.M. 238, 241, 620 P.2d 892, 895 (Ct.App.1980) (same); City of Clovis v. Curry, 33 N.M. 222, 224-25, 264 P. 956, 957-58 (1928) (concluding that an ordinance in question authorized proceedings which were criminal in nature); State v. Melendrez, 91 N.M. 259, 261, 572 P.2d 1267, 1269 (Ct.App.1977) (noting that the “violation of a municipal ordinance prohibiting shoplifting comes within the meaning of ‘crime’ “). Although the Curfew criminalizes this behavior for children, it is lawful for those seventeen and older. Again, the Legislature, through the Delinquency Act, exhaustively addresses the acts of children which would be unlawful if committed by an adult, and, instead of defining these acts as criminal for children, the Legislature designates these acts as delinquent. We believe that the Legislature has clearly expressed the view that behavior by children which could be considered criminal is encom-
{16} The City argues that the Delinquency Act does not preempt the Curfew because other provisions of the
{17} The Children‘s Shelter Care Act,
finds and declares that appropriate and distinct programs of supervision and care for children are required to fulfill the purposes of the Children‘s Code ...; that many children are needlessly detained in secured facilities on charges for acts that would not be criminal if they were committed by an adult; that these children would benefit from either immediate return to the family or placement in sheltercare homes or nonsecured shelter-care facilities....
{18} The Legislature has clearly expressed that acts committed by children which would not be unlawful if committed by adults are not delinquent. We believe that the Legislature has balanced the need to control the behavior of minors against the serious label of “delinquent” and the harsh sanction of incarceration, and chosen to reserve these penalties for behavior which is unlawful when committed by adults. The Legislature clearly wishes to treat children differently than delinquent offenders when they engage in misbehavior that is not unlawful for adults. The stated purposes of the
{19} We hold that the Curfew is preempted. However, this holding does not leave the City without other remedies to alleviate perceived and actual problems with juvenile misbehavior. Regardless of the time of day at which they occur, the specific examples of juvenile misbehavior which the City cites in its brief, such as unsupervised children under the influence of drugs or alcohol, and young girls at a motel in the company of unrelated adult men, seem to be illustrative of what is meant by “children endangered by their surroundings” under
The STOP Program and Protective Custody
{20} Plaintiffs argue that, under the STOP program, the children were arrested, questioned, and “punished” through mandatory re-education, without warnings of their constitutional right against self-incrimination, and without legal representation, a hearing, or a chance to present evidence. The City stresses that the children were not arrested during the STOP program, but simply taken into protective custody. The City declares that the STOP program falls under a different section of the
{21} The Delinquency Act includes the serious conduct of children which is criminal in nature for all citizens, while other sections of the
{22} In order to take children into protective custody, the Family in Need of Services article requires, among other circumstances, that the officer has reasonable grounds to believe that “the child is endangered by his [or her] surroundings and removal from those surroundings is necessary to ensure the child‘s safety.”
{23} We conclude that the City cannot take children into protective custody without a fact-specific showing that one or more of the specific statutory conditions within
{24} Further, although the City argues that it acted under the authority of
{25} We conclude that the
Plaintiffs’ Expenses and Attorney Fees
{26} Finally, Plaintiffs request attorney fees. Generally, absent statutory or other authority, each party is responsible for their own attorney fees. See Montoya v. Villa Linda Mall, Ltd., 110 N.M. 128, 129, 793 P.2d 258, 259 (1990) (“New Mexico adheres to the so-called American rule that, absent statutory or other authority, litigants are responsible for their own attorney‘s fees.“); Martinez v. Martinez, 101 N.M. 88, 93, 678 P.2d 1163, 1168 (1984) (stating that the rule for the award of attorney fees is “that each party to litigation must pay his [or her] own counsel fees“); Norton v. Board of Educ., 89 N.M. 470, 472, 553 P.2d 1277, 1279 (1976) (denying attorneys fees in a claim challenging constitutionality of fee collection for public school students).
{27} Plaintiffs request this Court to award them discovery sanctions, relying on Rule 1-037 NMRA 1999 (failure to make discovery, allowing reasonable expenses, including attorney‘s fees), because Plaintiffs’ “counsel and paralegal volunteers invested a large amount of time in discovery attempting to make sense of the City‘s raw data on juvenile crime and victimization, struggling with the numerous errors in the data which the City could not explain.” The City contends that discovery rules compelled it to provide the requested data, but did not require the City to expend additional time and money “analyzing, compiling and creating new statistical reports solely for the benefit of the recipient.” We agree with the City. We review whether the district court erred in denying attorney fees for an abuse of discretion. See Gardner v. Gholson (In re Estate of Gardner), 114 N.M. 793, 845 P.2d 1247, 1258 (Ct.App.1992). We conclude that the district court‘s decision was not contrary to logic and reason, and thus was not an abuse of discretion. See New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 16, 127 N.M. 654, 986 P.2d 450.
{29} Plaintiffs request this Court to recognize the “private attorneys general doctrine, which permits an award of expenses and attorneys fees in cases where private enforcement has become necessary and the magnitude of the resulting burden is therefore borne by private litigants whose efforts vindicate important public policies.” Similarly, Plaintiffs request this Court to recognize the substantial benefit doctrine, based on the principle that where a successful suit confers a substantial benefit on the members of an ascertainable class, the costs of the litigation should be borne proportionately by all those benefitted. Plaintiffs’ argument is unsupported by New Mexico law. See Johnson, 1999-NMSC-028, ¶¶ 28-32, 127 N.M. 654, 986 P.2d 450, (rejecting similar arguments, and concluding that “application of the private attorney general doctrine would require the Court to look beyond the proceedings before it to determine which rights are of more societal importance than others, which classes of litigants have protected such rights, and which classes of people have benefitted from such protection“). We decline Plaintiffs’ invitation in this case to expand the award of attorney fees.
Conclusion
{30} We affirm the district court. We conclude that the
{31} IT IS SO ORDERED.
MINZNER, C.J., BACA and FRANCHINI, JJ., concur.
MAES, J. (specially concurring).
MAES, Justice (Special Concurrence).
{32} I am in agreement with the majority opinion that the STOP program is inconsistent with the
{33} I would offer an alternative approach to that taken in the majority opinion. That is, I would address the issue on constitutional grounds. The analysis used by many courts begins with the proposition that the United States Supreme Court “has extolled the right to move about freely, not only as a necessary means to the exercise of other protected activities, but also as an end in itself.” Note, Assessing the Scope of Minors’ Fundamental Rights: Curfews and the Constitution, 97 Harvard L.Rev. 1163, 1174-75 (1984) (Note) citing Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).
Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it makes all other rights meaningful—knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.
Aptheker v. Secretary of State, 378 U.S. 500, 520, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). The freedom of movement encompasses all artificial barriers to personal mobility. Note at 1174 citing Laurence Tribe, American Constitutional Law § 15-15 at 953-58 and n. 20 (1978). See also Tribe, § 15-14 at 1382-82 & n 23 (2d ed.1988). Government restrictions that inhibit the fundamental rights of minors are valid only if the restrictions serve a “significant state interest ... that is not present in the case of an adult.” Planned Parenthood v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) The test is less rigorous than the compelling state interest test applied to restrictions on the fundamental rights of adults, Carey v. Population Serv. Int‘l, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and the test that is usually used is drawn from Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). See Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. 1981); Gaffney v. City of Allentown, 1997 WL 597989 *4 (E.D.Pa.); In re Spagnoletti, 122 Ohio App.3d 683, 702 N.E.2d 917, 919 (1997); State v. J.D., 86 Wash.App. 501, 937 P.2d 630, 634 (1997); Matter of Appeal in Maricopa County, 181 Ariz. 69, 887 P.2d 599 (Ariz.App.1994). Under Bellotti, there are three factors in determining whether a significant state interest exists: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child-rearing.”
{34} There is heated debate among the cases in the application of the three factors to curfews. The majority seem to hold, as to the first factor, that the lack of evidence, as in this case, that minors tend to be the victims of nighttime crimes more than others belies the position that they are peculiarly vulnerable in the case of a curfew. Johnson, 658 F.2d at 1073; Gaffney at *4; Hutchins v. District of Columbia, 942 F.Supp. 665, 673 (D.D.C.1996); J.D., 937 P.2d at 634. But see Maricopa County, 887 P.2d at 606 (plague of crime and drugs, “while not peculiar to minors, is more damaging to them because they are more vulnerable“). As to the second factor, Bellotti concerned a minor‘s right to an abortion, and it was said by the court in Gaffney at *4 “that the decision to either stay inside or roam at night simply does not present the type of profound decision which Bellotti would leave to the state.” Quoting Waters v. Barry, 711 F.Supp. 1125, 1137 (D.D.C.1989).
{35} The third Bellotti factor not only demonstrates that there is a fundamental right at stake, but is also a substantive basis for holding the curfew unconstitutional. “A long line of cases has established the Court‘s view that child-rearing is the role of parents, not impersonal political institutions.” Note at 1178. In McCollester v. City of Keene, 586 F.Supp. 1381, 1386 (D.N.H.1984), it was held a curfew worked unconstitutionally “by usurping parental discretion in supervising a
{36} Thus, because the curfew burdens fundamental rights, it must be narrowly tailored to serve compelling state interests. Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The instant ordinance is purportedly narrowly drawn because a defense to violation is that the defendant was “[e]xercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech, and the right of assembly.” Alb. City Ords., § 12-5-9(D)(1)(h). While this may be a way around overbreadth on First Amendment grounds, this ordinance is impermissibly vague, as I believe is intuitively obvious. The Court of Appeals said in Old Abe Co. v. New Mexico Mining Comm‘n, 121 N.M. 83, 91, 908 P.2d 776 (Ct.App.1995):
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, [408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)]
{37} Under a curfew with such wording, “what are First Amendment rights? What is considered to be free speech? ... What of expressive conduct that does not involve oral or written communication? ... What types of speech are protected by ‘free speech‘? ... And what of the ‘right of assembly‘? Do two friends have the right to assemble at a coffeehouse?” Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843, 871 (4th Cir.1998) (Michael, J, dissenting). These questions are
difficult enough for courts, Congress, and constitutional scholars, let alone for someone with no legal training. And when the answers are given, they are often imprecise and turn on the specifics of a case and a balancing of many factors. Furthermore, First Amendment jurisprudence is a vast and complicated body of law that grows with each passing day. As a result, criminal conduct cannot be defined by simply referring to the title (First Amendment) or subtitle (speech or assembly) of a particular right.
Id. But see Ramos v. Town of Vernon, 1999 WL 304694 *5-*7 (D.Conn.) (ordinance not
{38} In sum, I believe this ordinance is both overbroad in the encroachment on parental rights, and vague in the attempt to define conduct by generalized reference to the First Amendment.