Sale Ex Rel. Sale v. Goldman

nоthing pre- ingly, requested prohibition writ of spondent, see which would we being assets from used reim- denied.6 vent these petitioner.

burse the Denied. Writ consider, in an Another issue which we Justice dissents. McGRAW analysis Syllabus Point 4 of ex under State Berger, the circuit rel Hoover v. is whether error,” repeated order is an “oft and

court’s important whether the order raises “new impres- of first problems or issues of law has, Legislature through sion.” The the en- S.E.2d W.Va.Code, 48-2-13(a)(l), actment re- SALE, By Through Anna Her Next to circuit courts the served Parents, Friend and June and William temporary alimony during pen- award SALE; Katelyn Kimmons, By Genevieve dency of a action —we therefore can- divorce Through Her Next Friend and Par circuit action to not consider the court’s ent, Kimmons; Freas, Rebecca Carol repeated “problem an “oft error” or a M.D.; By Pollack, Through Furthermore, Lealah perceive issue law.” we Parent, Her Next Friend and Carol Legislature preserve that the intended Freas; and the American Liberties degree Civil of discretion the circuit substantial Virginia, Be court, Union West Petitioners and to allow the circuit court to be the low, Appellants, primary considering question for forum temporary alimony during pendency of proceedings. divorce Mayor Jay GOLDMAN, Mayor City of the While we are concerned that the circuit Charleston; Jerry Riffe, Chief specific court’s not contain find- order does Chief of Police for the of Charles fact, ings of we do not believe that ton; City Charleston, Respon and the prohibi- writ of technical error mandates a Below, Appellees, dents tion. Not is such an error correctable Community Center For Interest And West appeal, upon upon but our examination of the Neighborhood Association, Side Interve appears in this it record case the circuit Below, Appellees. nors court did consider the financial needs and petitioner required by income of the No. 27315. 48-2-13(b). W.Va.Code, We therefore do not Appeals Court of find that the circuit court abused its discre- Virginia. West particularly to a level exceeds the tion — legitimate powers of a circuit court. Submitted June 2000. July Decided 2000. III. Dissenting Opinion of Justice upon Based our consideration of the fac July Starcher Syllabus tors set forth in Point 4 of ex State Berger, say that rel Hoover v. we cannot legitimate powers

circuit court exceeded its issuing January 2000 order. Accord- Procedure review. Rule 28 of the Rules master's recommendations within 10 review within 30 petition was submitted for decision. cuit court to rule on expiration that a W.Va.Code, circuit for judge 48A-4— Family days period must rule on 20(e) Law objections of the date for ^{[1999] [1993]} filing petition any to a requires makes on which Practice and petitions days family of the a cir- clear law for direct that the circuit court endeavor to rule on forth stant petitions In the instant parties’ petitions for petition above, circuit for review due to the we for a writ of court case, deny review forthwith. parties delayed ruling requested prohibition. filing have indicated of the in- writ, on the setAs

PER CURIAM: Sale, appeal brought by was Arma through parents, her next friend and Sale, petitioners below/ap- June William 1 (hereinafter pellants collectively referred Sales”), as “the from a final order of the County Circuit Court of Kanawha finding a promulgated curfew ordinance and enforced Charleston, al., respondents et 2 (hereinafter below/appellees collectively re- “City”), ferred as the constitutional and valid under the laws of this State.3 After a careful review the briefs and record in this case, we affirm circuit the court’s order.

I. AND

FACTUAL PROCEDURAL HISTORY underlying appeal gen- The facts are erally disputed by parties. the On De- City, through cember City Huber, Crane, L.C., E. Forman Jason & Council, adopted a “Youth Protection Ordi- Charleston, Virginia, Attorney for West purpose nance.” in- ordinance Appellants. protection cludes the of minors from criminal Teare, Jr., Dellinger, R. H. John Mark exposure victimization and to criminal activi- Love, PLLC, Bowles Rice MeDavid Graff & ty.5 purpose The ordinance out its carries Charleston, Virginia, Attorney for West by imposing juveniles a curfew on under the Appellees, Mayor of and Chief of Police for age eighteen. The curfew becomes effec- Charleston, City City and of Charleston. p.m. Sunday, Monday, at 10:00 on tive Tues- Carey, Carey Douglas, day, Wednesday, Thursday nights, W. Hill Michael & and and PLLC, Charleston, Virginia, Attorney following mornings. West lasts until 6:00 a.m. the Appellees, Saturday ie., Community Sunday mornings, for the for On and Fri- Center day Neighborhoоd Saturday respectively, Interest and West Side Asso- and nights, operates ciation. curfew from 12:01 a.m. until 6:00 parties petitioners 1. 4. The other named as below The terms of the ordinance were scheduled to appellants Katelyn implemented April and herein were: Genevieve on as a Kimmons, by through proceedings underlying and her next friend and result of the the instant Kimmons; Freas, M.D.; Charleston, order, parent, appeal, City by agreed Rebecca Carol Pollock, by through postponed implementation pend- Lealah and her next friend the ordinance's Freas; parent, and Carol and the American Civil the circuit court’s resolution of this matter. Virginia. Liberties Union of West purpose 5. The of the ordinance as set out 18-17(a) provides: § parties respondents 2. Other named as below and Goldman, Mayor Jay appellees herein were: purpose protect of this ordinance is to Charleston, Mayor Riffe, City Jerry of the and Chief juveniles exposure from victimization and City Chief of Police for the of Charleston. activity by establishing criminal a curfew for Additionally, there were two intervenors below juveniles age years eighteen under the in the Community appellees City and herein: for Inter- City of Charleston. The Youth Protection Or- Neighborhood est and West Side Association. promote dinance is intended to reinforce and parent raising guiding role of the and children, health, body pointed opinion, promote safety, 3. As out in the and by creating provision juveniles circuit court found one of the ordi- welfare of both and adults provided offering protection nance to be unconstitutional and rem- an environment better security edy provision. for all concerned. n .m. Numerous abrogated her constitutional ordinance time exceptions to these parental privacy.7 emergency situations limits include emancipated, employed, youngsters who are discovery, court Following the circuit held engaged in parents, or accompanied their July on hearing in this matter Further parents’ direction. errands at their Thereafter, 20,1999, May circuit court curfew restriction are from the excluded decision, ordering: issued its exercising consti- who are those minors City § 18- 1. That Charleston Code religion, speeсh, right to freedom tutional 17(d)(ll) as the is unconstitutional insofar participat- who assembly youth delegated City Charleston Council church, school, sponsored ing in activities legislative to cre- police chief its organizations. community, government or prohibitions of exceptions to ate Finally, allows affected individ- the ordinance ordinance, giving unbridled discretion exempt apply permit for a them uals to permits without police chief issue special cir- limits for from the curfew’s time meaningful providing any standards provided for there- not otherwise cumstances police chief exercise his which the in, par- long applicant as the so his/her authority. her engage in permission participate or ent’s § 18- 2. That Code Charleston activity which has necessitated the stated 17(d)(ll) interpreted must so as to elim- exemption. any part on of the chief inate discretion subject to de- of the curfew Violators police, by requiring him or her to issue a of authorities and tention law enforcement guardian or permit parent when a makes According may adjudicated delinquent. is a determination that there reasonable Sales, may violators be trans- to the curfew necessity child or ward to be for his or her holding facility ported or to a to their homes hours; public place during in a pick up. In parents until can them their juve- 3. ordinance does not violate The individuals, addition, who assist or ac- those laws, equal protection of even niles’ disregard quiesce in minor’s of the stated subjected scrutiny, and is guilty found of this time limits and who are vague; impermissibly not overbroad guilty of a misdemeanor and infraction are 4. The ordinance does interfere subject to a fíne not to exceed $500 and/or parents’ right to raise their children thirty days. jail of not more than sentence fit, they from undue interfer- as see free Perceiving imposition of a curfew to State; by the ence infringement impermissible an of their 5. ordinance is not invalid because The rights, instituted the Sales provide protocol; for an it does not arrest Ka- in the Circuit Court of this civil action par- 6. does not make The ordinance 24, 1998, County seeking nawha on March criminally actions of ents liable for the enjoin of ordinance. enforcement children; oper- alleged that the ordinance Sales ordinance does not violate the deprive of their constitutional ates to them Fourth to be free from Amendment of equal protection, freedom seizure; unreasonable search association, process, and speech and due not violate the 8. The ordinance does searches and freedom from unreasonable 49-5-8(b). § provisions of W. Va.Code Furthermore, com- the Sales seizures. Subsequent of circuit Va. to the issuance plained that the ordinance violates W. 24, addition, order, 1999, 49-5r8(b) May court's the Sales § [1997].6 Code stay circuit court to continue the parent/appellant complained that moved the least one rewrote W. Va.Code 49-5-8. See § without satisfaction der which "warrant or court order” Shortly 49— rise to the instant 5—8(b) after the occurrence juvenile ^[1998] (changing § of appeal, statutory be taken into to "court order” circumstances of the events criteria from W. Va.Code Legislature custody only). giv un 7. The- person, tion individually caption Carol Freas, on the parent. as pleadings bringing reveal a cause of one ac- operation permit differently, of an the ordinance’s have decided the case and it appeal finding of the circuit court’s decision to this must affirm a if the circuit court’s 2, 1999, By order plausible light Court. entered June account of in the evidence stay circuit court motion for a entirety. denied the the record viewed implementation. As a curfew’s result 1, S., Syl. pt. part, Tiffany In re Marie rulings, the circuit court’s adverse the Sales (1996). 223, W.Va. 470 S.E.2d 177 See also similarly requested stay this Court the ordi- Educ., County Woo v. Putnam Bd. pending appeal nance’s institution an of the W.Va. 504 S.E.2d circuit By court’s decision on the merits. (“Reversal finding of a factual under the 9, 1999, order entered June we denied the ‘clearly standard erroneous’ should not be stay. requested The Sales then filed this lightly.”). done appeal. assignments nowWe consider the This Court is also reminded error. constitutionality “[w]hen a statute is questioned every reasonable construction of II. the statute must be resorted a court in STANDARD OF REVIEW constitutionality, any order to sustain presents appeal This case from a final doubt must be resolved in favor of the consti injunctive tutiоnality denying legislative Syl. order of the circuit court enactment.” O’Brien, Sales, pt. v. statutory relief to the Willis 151 W.Va. raises one Syl. pt. challenges Donley issue and several constitutional to S.E.2d Accord Bracken, question. the curfew ordinance W.Va. S.E.2d (1994). Further, Phillip Syllabus Court indicated in Leon M. v. as was Green held Education, County point part, Appalachian brier Board W.Va. State ex rel. Gainer, (1996), Power S.E.2d Co. W.Va. “[bjecause (1965), interpretations Virgi “[c]ourts S.E.2d 351 are not con the West Constitution, questions relating along interpretations legislative nia with cerned with rules, policy. general powers primarily questions legisla statutes and law, ture, limits, apply we a de novo within constitutional review.” See also are almost Syl. A.L., pt. Chrystal plenary. considering constitutionality In R.M. v. Charlie the (1995) (‘Where legislature, negation of an act of W.Va. S.E.2d 415 the legislative appeal power appear beyond must the issue on an from the circuit court rea Syl. pt. clearly question involving Tony is sonable doubt.” Accord P. law statute, interpretation Caryl, apply of a Sellitti Constr. Co. v. 185 W.Va. we a de review.”). (1991). However, when, novo standard of It is with S.E.2d the above- here, an action in mind that judge is tried before a mentioned standards we review jury, without a circuit findings the trial court’s court’s order. clearly

fact “shall not be set aside unless 52(a). R. P. erroneous[.]” W. Va. Civ. We III. have also held that when, finding clearly [A] al- DISCUSSION erroneous though support there is evidence Statutory Challenge A. Under finding, reviewing court on the entire § 49-5-8 W. Va.Code evidence is and firm left the definite conviction that a mistake has been commit- The Sales first contend the cur reviewing may § ted. court not few ordinance violates W. Va.Code 49-5- 8(b) [1997],8 very specific finding simply overturn a it which establishes because would W. may ment official tions an adult in identical [a]bsent a warrant or court Va.Code be taken exist: § (1) only 49-5-8(b) into Grounds exist for if one of the custody by circumstances; (2) ^[1997] order, following provides law-enforce- arrest of juvenile condi- emer- that the gency parents, of the officer health, the official has reasonable conditions exist which in the safety juvenile guardian and welfare of the pose has left the care of his or her or custodian without imminent grounds danger juvenile; judgment believe to the (3) part; form a it is intended to of law of which a law enforce- instances which and limited legislators who being custody presumed it may a minor into official take ment with all passed it familiar were having or court order. drafted without a warrant matter, subject law, existing applicable to the court found that the ordinance The circuit common, constitutional, statutory or whether not violate this statute. did harmonize com- statute to intended the error, support assignment of In of this aid the effectua- pletely with the same and au- argue that the ordinance Sales design general purpose and there- tion of the City Police officers thorizes Charleston therewith.”). of, if its terms are consistent juveniles custody of who violate the take thorough of W. Va.Code examination After ordinance, clear it contravenes the statute’s 49-5-8(b) statutes, pertinent we § and other in which a minor intent to limit the instances not violate ordinance does conclude that the custody a warrant taken into without 49-5-8(b) § for two reasons. W. Va.Code response, or court order. In asserts does not violate the stat- that the ordinance First, municipalities have we believe pro- pertains ute because the statute ordinances to create curfew juvenile petition has been ceedings in which a 8-12-5(44) § [1989].9 pursuant W. Va.Code apply to other does filed general au grants municipalities This statute proceedings involving minors. protect and thority “[t]o to create ordinances Emergency plish pt. fect must be primary us that over, Syl. pt. and to tion principle that “[t]he effect struing a Code called S.E.2d Legislature.” Comm’r, the “[i]n § Additionally, Smith to the intent of the the statute 49-5-8(b), 2, Smith, “[statutes goal is to general purpose In this upon statute is ascertaining legislative Servs. also Wriston v. given State Workmen’s to construe a Court’s (citation omitted)). W.Va. Auth., as a whole so as to accom we are give to each which relate our case primary to ascertain and W.Va. effect 205 W.Va. analysis guided by Legislature.” Syl. (“When part of the statute Raleigh County law admonishes to the 219 S.E.2d object to statute, our legislation.” Compensa 219 S.E.2d of W. Va. intent, the same intent in con More legal give ef welfare few promote ate curfew ordinances. W. specific violate prevail. niсipality, whenever lishes a curfew hereunder years person under authorized, commissions, ord, duties ^[1988] authority of ordinances is [i]n statutory authority of counties to cre now conferred addition to states, any ordinance: adopt age. the good conflicts the public such municipalities to It shall be unlawful an ordinance which estab- municipal ordinance shall county ordinance enacted order eighteen years of for implicitly recognized relevant order.” Id. commissions are persons morals, all other with that duly part: law Va.Code Provided, That entered of rec- under safety, upon powers create any mu- addition, eighteen age hereby health, § 7-1- county cur any to added). Furthermore, pro- subject applied (Emphasis should be read and matter juveniles, Legislature ceedings involving the Legislature’s together so that the intention granted municipal courts au- specifically gathered can from the whole of the enact has be 3, Smith, thority prosecute of curfew ordi- Syl. pt. Syl. to violations id. See also ments.” § juveniles. 49-5- by W. Va.Code pt. Snyder, v. 63 S.E. nances State W.Va. (1908) (“A statute should be so read 2(d) ^[1998] directs that, “[no]twithstanding article, municipal any provision of this spirit, with the other applied as to make accord jurisdiction juvenile objects concurrent purposes general system courts have the consent the or commitment lieve the (5) the official has reasonable juvenile welfare of such juvenile is a the fugitive from a lawful person, order of a to have been juvenile and the juvenile endangered; driving grounds to be- health, court; a motor custody safety (4) or 9. W. Va.Code 8-12-5 ed, language 12-5 her blood. vehicle with but these [1999], at issue herein. changes § any amount of alcohol do not ^[1989] See'W. Va.Code 8- affect the has been amend- in his or statutory § (1974) (“A municipal for 203 S.E.2d circuit court a violation municipal police authority, which no at common any ordinance officer has curfew added).10 (Emphasis statute, by enforceable.” to or make a warrantless law person for a of a who arrest misdemeanor legislative recognition that In view the pres- commit such an in his does not offense ordinances, may municipalities create curfew ence.”). Similarly, subjudice, in the case Legislature not believe the intended we do prevent enforcing police authorizes the to take into municipalities from such ordinance ordinances, order, necessary custody, which would without a warrant court or adopt City’s interpreta were we any juvenile result who violates the ordinance 49-5-8(b). § tion of Va.Code It is the W. presence. This in- is not officer’s possi “duty 49-5-8(b). of this Court avoid whenever § consistent with W. Va.Code construction of a ble a statute which leads Therefore, we find circuit court was inconsistent, absurd, unjust or unreasonable finding correct the ordinance did vio- Kerns, results.” State 183 W.Va. late the statute. 532, 537 394 S.E.2d Equal B. Due Process and Second, we believe that the enforcement Challenge Protection in this the curfew ease is consistent with the argue next ordinance The Sales 49-5-8(b). § restrictions W. Va.Code guarantees the constitutional of due violates juvenile a into statute authorizes to be taken process equal protection. urged areWe custody a without warrant or court order analyze consti- the Sales both of these only specified under certain conditions. One guarantees tutional “strict scruti- under the “[gjrounds conditions is exist these ny” requests standard. The this Court for the arrest of an adult in eircum- identical apply “rational In the basis” test.13 Syl. pt. stances[.]”11 See v. Ells State underlying worth, proceedings appeal, this the trial 175 W.Va. S.E.2d - (“Under 49-5-8(a) Va.Code, court resolved both constitutional issues both W. 8(b), juvenile grounds against by utilizing scrutiny for into taking the Sales a strict juvenile custody allegedly analysis. where the a criminal act as for committed are the same matter, preliminary As a we note adult.”). provi an

the arrest of Under test, “[i]f under the sion, juvenile may custody into taken challenged of a [law] affects the exercise without a warrant or court for commit order upon or is a consti officer, fundamental based ting presence an offense of an criterion, tutionally suspect law will not an adult be arrested without can [government] unless committing order an be sustained warrant court prove necessary presence police that the classification is offense of a officer.12 Thomas, Syl. pt. compelling accomplishment State 157 W.Va. state prior provision applies 10. versiоn of likewise We are aware that this this statute juvenile, of an granted municipal jurisdiction to the commission offense courts mu- over which, adult, permit would if committed nicipal § violations. See W. Va.Code 49- of the adult. the ordinance [1996], the arrest 5-2(d) this creates a satisfies even criterion because it any applicable offense adult misdemeanor to 49-5-8(b) provision § 11. This of W. is Va.Code juvenile’s participates in a who violation nothing recognition right moré than a of a of ordinance. custody, police officer to take a into without order, committing anyone warrant or court a level review 13. There is a third of constitutional felony presence or misdemeanor offense in the of by presented involved in that is not the issues Farmer, 84, See State v. 193 W.Va. the officer. 3, Syl. George pt. Shelby v. this case. See J.S. 7, 378, ("[A] (1994) 154, 89 n. 454 S.E.2d 383 n. 7 L.H., (1989) 181 W.Va. 381 S.E.2d 269 peace arrest a warrant if ("Under officer without equal protection principles, a statute grounds illegitimacy there are reasonable for him to believe or which discriminates based on sex committed; however, felony substantially a has been a important an must be related to may only peace objective. officer a warrant governmental arrest without one of inter- This test is scrutiny pres- if ence.”). is which the 'ration- a misdemeanor committed his mediate rests between test.”). scrutiny’ and the al basis’ review 'strict Appalachian requirement interest.” Power infringe upon Co. v. State did not the federal 573, 594, Dep't travel). Tax 195 W.Va. right S.E.2d constitutional to (1995) (citations omitted). Pursuant Supreme While the United States Court test, to the rational basis a law “will be recognized general right has a to freedom long rationally sustained so as it ‘is related to adults, movement for it specifically has not legitimate (quoting state interest.’” Id. right juveniles. City extended this to City Ctr., Living Cleburne v. Cleburne correctly acknowledges that the United Inc., 432, 440, 3249, 3254, 473 U.S. Supreme specifically States has Court indi- (1985)). sepa 87 L.Ed.2d We will right cated that the of freedom of movement rately determine whether strict or juveniles subject is to a different stan- appropriate rational basis is the test for each applicable dard than that to adults. In ad- challenges. the two constitutional dressing juvenile’s interest in the freedom process detention, challengе. during pretrial 1. Due of movement The Sales contend that United States the ordinance in Court made the fol- fringes upon lowing right their “fundamental observation: free movement and association is [and] therefore But qualified by that interest must be subject scrutiny.”14 to strict This is a due recognition juveniles, adults, unlike process argument. The United States Su always in custody.... some form of preme interpreted Court “the Fifth and Children, definition, are not assumed guarantee Fourteenth Amendments’ of ‘due capacity have the to take care them- process of law’ include com substantive They subject selves. are assumed to be ponent, government which forbids the to in parents, parental the control of their and if fringe liberty certain ‘fundamental’ interests falters, control play part the State must all, process provided, no matter what parens patriae_ In respect, this infringement narrowly unless the tailored juvenile’s liberty may, ap- interest compelling to serve a state interest.” Reno circumstances, propriate be subordinated Flores, 292, 301-02, v. 507 U.S. “parens patriae to the State’s interest 1439, 1447, 123 (1993) (citations 1,16 L.Ed.2d preserving promoting the welfare of omitted). It has also been held that “consti the child.” concepts personal liberty tutional unite Martin, 253, 265, 104 Schall v. 467 U.S. S.Ct. require that all citizens be free to travel 2403, 2410, (1984) 81 L.Ed.2d 217-18 throughout length breadth our (quoting Kramer, Santosky v. 455 U.S. statutes, rules, land regula uninhibited 766, 102 1388, 1401, S.Ct. 71 L.Ed.2d unreasonably tions which burden or restrict (1982))(internal omitted). citations Shapiro this movement.” Thompson, 618, 629, Nevertheless, L.Ed.2d urge the Sales (1969), part recognize overruled in juveniles on other have fundamental grounds Jordan, by Edelman v. right to freedom of support movement. argument, 39 L.Ed.2d 662 the Sales cite the decision in Hutchinson, ‍‌​‌‌​‌​‌​‌‌‌​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌​​‌‌‌‌​‌‌​‌‌‌‌‌‍Spradling W.Va. Johnson v. Opelousas, 658 F.2d 1065 (5th Cir.1981). (finding 253 S.E.2d 371 employ not, however, an We do inter- residency requirement ment pret unconstitutional recognizing juveniles Johnson as infringed upon the federal consti right have to freedom of travel). tutional Morgan Johnson, But see v. movement. invalidated the curfew City Wheeling, 205 case, W.Va. S.E.2d ordinance at in that applying issue (1999) (finding employment residency the “overbreadth doctrine.” Although provide "[a]ssignments the Sales a statement in held that argued of error that are not they right their brief that have a appeal may fundamental to in the briefs on bе deemed association, this issue was Syl. pt. not briefed. In a this Court to be waived.” Addair v. brief, acknowledge Bryant, footnote in their the Sales 168 W.Va. 284 S.E.2d 374 entirely simply Consequently, "[i]t that is not clear if associa- we will not address the of issue purely purposes constitutionally tion for social right is whether a fundamental to association exists protected right.” infringed by as a fundamental We have or is the ordinance. hand, City requests right? they right Do On the other stantive have the freely night? follow in Hutchins v. wander the streets —even Court to the decision (D.C.Cir. Columbia, District 188 F.3d 531 of 1999), juveniles do a tó find that not have juveniles think We that do not have a right of freedom move- right to fundamental be on the streets Hutchins, district court night supervision. ment. federal without adult The Su- preme found that a ordinance already rejected violated the the idea juveniles appellees’ right right of that go fundamental freedom have a and “come “juveniles, adults, appeal, appellate at will” movement. On court unlike acknowledged juveniles always if custody,” had a consti- are in some form of ... movement, right why no tutional of then we see reason the asserted freedom right “government any would fare That impingement on a substan- here better. rights juveniles necessarily of are not coex- right tive fundamental to free movement undisputed, tensive with of those adults is would be measured a strict under “unemancipated minors lack of justified some only standard and would if rights the most fundamental of infringement narrowly self-deter- tailored to serve a including right even the of liber- compelling state interest.... But does mination — sense, ie., ty in right its narrow Hutchins, right such a substantive exist?” (internal go appellees at will.” ... omitted). come While 188 F.3d at 536 citations claim reasoning that this dif- obscures the appeals The court of in Hutchins answered parental custody gov- ference between question by finding juve- its rhetorical custody, appellees necessarily ernmental niles did not have fundamental constitution- juveniles always concede that in are some right al to freedom of movement. custody. form of Not it anomalous We are rather doubtful that substantive say juveniles right have a to be process, due those constitutional unsupervised they always in from stem basic notions of ordered custody, recognition form some but the liberty “deeply in history rooted [our] right fly of such a would the face tradition,” lightly ... can be so extended. powers parens state’s well-established hand, recognize On the other we that a patriae promoting in preserving and hypothetical municipal restriction on the welfare of children. The state’s citizens, example, movement of its unquestionably over children’s activities is curfew, might bring play draconian into than that broader over like actions of concept process. of substantive due adults.... And it would inconsistent may, important Be that as it is an there here, right to find a fundamental when the considering caveat to bear mind when [Supreme] Court has concluded that potential extensions of substantive due upon state intrude the “freedom” of process, which “has at times been a treach- juveniles variety in a of similar circum- ... erous field.” Court has implicating stances without fundamental analysis begin us that our warned must rights.... description

with a careful of the asserted right Neither does the asserted here right general right’s for the more is the “history deep have roots in our and tradi- ie., description, peo- the free movement of noted, juve- tion.” District [Court] As the ple, the easier is the extension of substan- early in nile curfews were not uncommon process.... tive due And the “doctrine history, they our ... nor are uncommon judicial requires self-restraint us to exer- juvenile now.... That com- curfews are course, cise the utmost care is, whenever we are mon not conclusive deter- ground asked to break new in this field.” mining they comport with due whether ... For that reason must ask not process, prevalence we but the historical enjoy general right whether Americans “plainly considering” such laws is worth movement, determining free but rather whatever are practice whether “‘of- scope justice deeply and dimensions of such a principle fends some so (if exists), do minors have such sub- rooted the traditions and conscience Ctr., Living (quoting at 445 people as to be ranked as fundamen- S.E.2d Cleburne

our sum, history 3254, Inc., 440, ”... nor tal.’ neither 473 U.S. at 105 S.Ct. at supports of a fun- precedent 320). the existence that L.Ed.2d at The Sales concede juveniles right to be in a damental City legitimate has interest the welfare supervision public place without adult dur- juveniles. аssert the Sales hours, recog- and we decline to juve- “evidentiary there is no nexus between nize one here. goals purported and the of re- nile curfews (internal omit- F.3d at 538-39 citations juvenile ducing victimization[.]” crime and ted)(footnote omitted). differently. During The record shows reasoning persua- in Hutchins We find the proceedings, City presented lower court Therefore, juve- we decline to rule sive. justify infringing upon sufficient evidence to a constitutional to freedom of niles have juveniles during specific the movement of Accordingly, rational basis movement. periods City’s of time. The evidence estab- proper determining wheth- is the tool for test was a 27.40% lishes there increase infringes upon ordinance the Sales’ er the juvenile drug violent crimes and offenses freedom movement.15 City during period 1993-1996. also provided the trial court with statistical evi- test, rational basis a law Under the “ showing summary dence the number rationally long as it ‘is will be sustained so ” by juveniles arrested16 victimized legitimate Ap state interest.’ related to Power, 594, palachian crime17 of Charleston for each W.Va. 15. Longwell Hodge, v. ruling court.’’). limited circuit Court, on the ord, West personal jurisdiction W.Va. decision on the circuit court’s ferent reasons tiran those legal ground disclosed point also court committed error lower court as the basis for its of lack of Buckeye appears that such affirm the different reasons. As this (2000) ("Although we have found that the circuit S.E.2d 466 court to ultimate conclusion as Smallridge, Although NUMBER OF JUVENILE ARRESTS IN equal this Court Easterling v. American Virginia 168-69 3 of Barnett v. ground, and affirm its on the insufficiency 123, 133-34, court, to the THE CITY OF CHARLESTON adequate support.”); apply must 369 S.E.2d subject protections (1982) (“We judgment (1965): any we find it was error (1996) ("An appellate Human nevertheless be dismissed because but legal grounds ground reason or may uphold the circuit court’s independently matter ruling in this matter was based W.Va. 171 W.Va. judgment "This Court Wolfolk, of the evidence of the lower court grounds, Rights decision, may affirm or reverse a claims, 529 S.E.2d by we have cited the trial agree with the Circuit jurisdiction.”); Murphy expressed theory assigned by dismissing 35, 36-37, Court held in Comm’n, 149 W.Va. relied Optical Corp., we reach the same to the due is correct on record, McJunkin the claim sufficient although for dif- judgment.” may, court, upon for the trial court Buckeye on the rec- 468 S.E.2d 297 S.E.2d ("Although on 179 W.Va. regardless the lower above.”); Syllabus Corp. process but for 598-99 appeal, ground against is not any it Time of 01:00 a.m. —01:59 a.m. 04:00 a.m. —04:59 a.m. 02:00 a.m. —02:59 a.m. 03:00 a.m. —03:59 a.m. 12:00 a.m. —12:59 a.m. Time of NUMBER OF JUVENILE CRIME VICTIMS JULY 1995 —OCTOBER JULY 1995 —OCTOBER day day IN THE CITY OF CHARLESTON Number of Victims Number of Arrests 31, ^{[06] [1] [2] [8] [7] [2]}

197 race, 1,1995, categories origin, national day, July to October these include from hour alienage, gender illegitimacy, also was evidence demon- none of 1997. There (citation omitted)); juvenile present and which here.” strating in arrests are a reduction Virginia im- Secondary which had Israel Israel v. West victimization in selected cities Comm’n, 454, 461, pre- 182 juvenile Sales Sch. Activities W.Va. plemented curfews. The (1989) (“Classifications testimony disputing the effec- 388 S.E.2d 487 expert sented race, juvenile relating alienage, origin crimes and or national of curfews tiveness always subject judicial juvenile the trial have been to strict victimization. scrutiny[.]”). Although testimony persuasive. the Sales this court did not find such invite suspect do we. extend the realm classifi Neither “youth,” cations to include we do decline to sum, in- although curfew ordinance Thus, prop so. the rational basis test fringes upon freedom of movement legal principle determining er for whether juveniles, rationally City’s it is related unfairly against the ordinance discriminates in legitimate interest their welfare. the Sales.19 challenge. Equal protection 2. While we have determined that the juveniles suggest that The Sales further applies rational to a claim basis test of dis unfairly against by discriminated the curfew upon youth, crimination based we need not Therefore, ages. ordinance because of their apply claim the test the Sales’ because we examining scrutiny used in should be deem waived. The sum total of the Sales’ protection equal is an the ordinance. This purported equal protection argument that is concept claim. held that “[t]he We have contained the brief as follows: “The equal protection of the laws is inherent all minors ordinance treats the same even three, Virginia of the West article section ten exceedingly though percentage an small com Syl. part, pt. Robertson Constitution^]” [E]qual mit crimes. The Protection Clause Goldman, 453, 369 888 179 W.Va. S.E.2d grouping forbids such a crude when funda (1988). recognized equal While we have stake, limiting mental are at guarantee state consti protection under the providing exceptions curfew’s hours and does tution, recognized this Court has never shortcoming.” pur not diminish this “youth” suspect as a classification for the ported legal argument is unac scrutiny analysis. As purpose of a strict we ceptable purpose for the review noted, suspect previously “[t]he list have appeal not raised on or Court. “Issues race, origin, national criteria includes merely passing mentioned are deemed applied alienage, and to be Tiernan v. Area Med. waived.” Charleston engage distinctions is the laws that such Ctr., Inc., 140 n. 506 203 W.Va. exacting.” Appalachian most Power Co. 578, 583 n. 10 S.E.2d 573, 594, Dep't, Tax 195 466 State W.Va. (1995) (citation omitted).18 S.E.2d 445 Vagueness Challenge C. City Wheeling, Morgan v. 205 See also (1999) (“Con additionally 516 57 The Sales contend W.Va. S.E.2d criteria, is unconstitutional cerning suspect quasi-suspect that the curfew ordinance or 05:00 a.m.—05:59 a.m. 06:00 a.m.—06:59 a.m. 08:00 a.m.—08:59 a.m. 07:00 a.m.—07:59 09:00 01:00 —01:59 03:00 —03:59 02:00 —02:59 05:00 —05:59 04:00 —04:59 06:00 —06:59 10:00 a.m.—10:59 a.m. 11:00 a.m.—11:59 12:00 —12:59 a.m.—09:59 a.m. p.m. p.m. p.m. p.m. p.m. p.m. p.m. a.m. a.m. p.m. p.m. p.m. p.m. p.m. p.m. p.m. 28 14 11 07:00 08:00 —08:59 09:00 —09:59 19. See 10:00 —10:59 11:00 aged 40 been made a 3(k) age of Rights We note that under the West p.m. p.m. p.m. p.m. p.m. ^[1998] forty supra Act, —07:59 —11:59 years W. Va.Code (defining note suspect or older. See W. Va.Code 5-11- above”). p.m. p.m. p.m. p.m. p.m. "[t]he criterion § 5-11-1, term Virginia 'age' et seq., age 224 211 190 ... § persons Human [as] stated, any exception a curfew Simply provide ade ly vague20 it does not protect attempts that to First ordinance constitutes an offense quate notice as to what going is to be some- Amendment terms.21 it contains undefined and because First Flinn, vague, what because the Amendment case State v. In the seminal through general in terms. It is (1974), is stated 111, this Court W.Va. 208 S.E.2d that limits of of the courts decisions applicable when the standard articulated constitutional freedoms and limits re- being unconstitutionally challenged as law is on those freedoms is determined. strictions 1, held, Syllabus point in vague. We simply ordi- The cannot declare the with must be set out criminal statute “[a] some, or nance unconstitutional because give person of sufficient definiteness all, juveniles may by who be affected even that his con ordinary intelligence fair notice of all of limits and it are unaware by prohibited is statute templated conduct restrictions, by court as determined deci- adju provide adequаte standards for and to differently, the fact that the sions. Stated Flinn, 158 W.Va. 208 S.E.2d dication.” may vague because there are ordinance Syllabus point 2 we stated 538. In of Flinn gray not it uncon- some areas does render penal involving criminal “[statutes further entirety. stitutional its ty, govern potential which First Amendment similarly sensitive consti or other freedoms supported reasoning The circuit court certainty and rights, tutional are tested for by by relying on the decision Schleifer by meaning interpreting their definiteness Charlottesville, City 159 F.3d v. Schleifer Id. from the face of the statute.” (4th denied, Cir.1998), cert. ex Schleifer Charlottesville, City v. rel. Schleifer argued judice, the In the case sub Sales 143 L.Ed.2d 349 vague ordinance was the trial court vagueness involved a chal Schleifer impinged upon guarantees under lenge a First to an ordinance that had constitution, First Amendment the federal exception pro “identical” to that Amendment juveniles not have a clear “because would by City’s ordinance in the instant vided encompassed concept of what activities are rejection vagueness In its of the chal case. exception and what ac- [ordinance’s] lenge, appellate court held: Schleifer encompassed by the tivities would not be punish for its We decline exception.” respect First Amend- laudable effort question ordinance in contains exception The curfew A broad from the ment.... exceptions application, fortifies, includ- various to its for such activities rather weakens, activity being for First Amendment than First Amendment val- one juveniles. engaged circuit court .... If councils draft an ordinance ues exceptions, exceptions ordinance was not unconstitu- with those are sub- found that the ject vagueness challenge. they If tionally vague respect First to a exceptions, neglect provide the or- exception: then Amendment thereto, City correctly points argument in their brief out that this 20. The Sales couch this "vagueness chal presented in terms of a and overbreadth” issue was not to the trial court. Con- However, lenge. does not articulate an brief sequently, we will not address this issue for the argument. In a footnote "overbreadth doctrine” appeal. first time on See v. Acme Lime- Shaffer brief, "[vjagueness to their the Sales state Co., Inc., 206 W.Va. 349 n. stone While and overbreadth are related doctrines.” (1999) ("Our general rule S.E.2d n. true, independent this the doctrines nonjurisdictional questions not raised at is that independent analyses. require of each other and level, but the circuit court raised for first provide separate Because the Sales failed to considered.”). appeal, time on will not be doctrine, legal argument under overbreadth appeal. we will not address that issue We note that the Sales contend under also Ctr., Inc., 203 v. Charleston Area Med. Tiernan vagueness challenge application n. 10 W.Va. at 140 n. 506 S.E.2d at 583 discriminatory enforcement.” ordinance "invites (refusing arguments that were not to address argument inappropriate and will not be briefed). challenge made to the considered because challenge. the Sales is a "facial” ordinance assign the ordinance’s 21. The Sales also error to response requirement. lack of a mens rea adequately recognized parent’s pro- for has been “that dinanee attacked tecting govern- First freedoms. It rear Amendment their children without undue however, hardly for fitting, compo- courts to mental seems interference is a fundamental Qutb protecting Strauss, process[.]” chastise elected bodies ex- nent due Cir.1993) pressive (5th activity. Charlottesville ordi- (citing Ginsberg F.3d stronger York, constitutionally nance is with that New (1968)).

protection than without. L.Ed.2d 195 it has been equally recognized every that: “Not state (internal Schleifer, 159 F.3d at 853 citation derivatively restriction of a child’s freedom omitted) (footnote omitted). abridges rights parents. the fundamental of agree reasoning We with circuit court’s the The [United States] Court has re- exception and its reliance on The Schleifer. jected possess parents the view that an un- of complained in the ordinance states that it qualified right trumps to children that raise applicable juveniles not “[ejxercising is any governmental regulation of their chil- protected rights by First Amendment the Schleifer, dren’s conduct.” 159 F.3d at 852. such States Constitution as the United free religion, speech, of of upon exercise freedom The circuit court relied decisions right Qutb assembly.” Undoubtedly of there v. in Strauss and v. Char Schleifer gray exception, areas in this attested to find that the lottesville ordinance’s intru by legion judicial opinions Anglo- upon of in parental rights sion Dr. Freas’ were jurisprudence American that have addressed minimal. The circuit court found rights. First Amendment The circuit court permits ju- [t]he Charleston ordinance was, therefore, finding in correct that it is in public place venile to be or remain judicial through case-by-case evaluations parent, accompanied by guardian that the contours of the ordinance’s First years or pge, an adult who is 18 of or exception Amendment to be is tested and older, parent who is authorized or refined. guardian parent’s guardian’s to take the or place juvenile accompanying in for a many The of Sales also contend designated period purpose. of time and undefined, in the terms the ordinance are regard, gives the Charleston ordinance is therefore the ordinance unconstitu parents grater guardians or tionally vague. Some of the terms com permit public remain in children “errand,” route,” plained of “direct include: Qutb than did [the ordinance “establishment,” “owner/operator,” “public ], virtually Strauss and is identical to the place,” and “remain.” circuit court [ordinance Schleifer Schleifer many challenged by found terms Further, when inter- Charlottesville]. were, fact, expressly the Sales defined preted police to eliminate the chiefs unbri- For terms the ordinance. those that were permits allowing dled to issue discretion defined, not in fact circuit court found juveniles places during public to be in cur- vague. Upon the terms were not review hours, parents guard- few and to allow of the terms that the ordinance does not ians to reasonable determine when necessi- define, agree trial we with the court that ty juveniles in exists for their care to be in persons ordinary intelligence know what hours, public places during curfew the or- terms mean. parental not with dinance does interfere rights. Rights Challenge D. Parental Lastly, argued by finding appellant agree is We (hereinafter Qutb Freas court

Carol referred as “Dr. circuit and the decisions Freas”), that, unconstitutionally im the ordinance while the ordinance does Schleifer infringes upon parental rights, im right privacy, pact parental on Dr. Freas’ her is too an unconsti pact which includes the rear her child minimal to constitute rights.22 governmental infringement upon without undue It such influence. tutional prohibition Sales raise as a final issue that the ordi- nance violates the constitutional Virginians including those rights of all West IV. — “magic yet Virginians who are West CONCLUSION age” of 18. judgment foregoing, In view of the Fortunately, majority opinion because the County is af- Court Kanawha the Circuit curiam, ap- majority’s chosen per firmed. jurispru- firmest of proach is not set in the hope that the future cement. I dential Affirmed. recognize will that strict this Court rights young people to as- applies to the participate. did not Justice SCOTT semble, just to the as it does etc.— sitting by Judge THORNSBURY other citizens. assignment. temporary regard question whether to the With sustainable, constitutionally a curfew such STARCHER, Justice, dissenting: majority inis legal reasoning of the clear 2000) (Filed July enlightened progres- and with a tension more years as working for than 20 After more legal approach. sive judge, effectively on circuit where I focused not to find a definitive need look far We abuse, problems juvenile responding to of and enlightened pro of expression such an victimization, crime, delinquency, I am and merely approach. if substi gressive For we major- that the of which the confident curfew “Charlottesville,” what tute “Charleston” for ity opinion approves unconstitu- is Judge Blaine of the United States Michael political simply is also tional —it ineffectual Circuit, Appeals Fourth of for the expense posturing pandering and of —at distinguished Virginian, wrote in his West young people civil of and their Charlottesville, City in dissent Schleifer of parents. (4th Cir.1998) in set forth 159 F.3d —as stigmatize urge scapegoat to and The Appendix full in the to this dissent —is one someone, anyone larger shortcom- per applicable to the instant hundred cent —for society, ings especially our how of and we case. expression regular our kids —finds in treat improve Judge Michael’s I cannot on writ- justice system, just juvenile as it does in our (and to job what a it would be even Hence, justice larger system. criminal our it!). forth I set and summarize therefore youth curfews. stating reasoning why his I subscribe disagree Judge King’s ulti- I reasoning While with to the of the dissent conclusion, in that we mate per majority opinion. сuriam decision reviewing, uphold the Charleston curfew— police they use Finally, the will make what very qual- appreciate I much breadth and approved. have will of the curfew that we King’s thorough ity Judge thoughtful and of while, gather probably it dust in After will legal opinion. brought He a remarkable lev- hope that happens, I that until a drawer. jurisprudence scholarship to of and his el restrained, and that police will be we will fully this decision that issue elevated application dispropor- not see the curfew’s importance. proper hope tionately minority youth. I also people parents particularly appreciate agree young and their will take full

I and scrutiny” advantage provi- Amendment” Judge’s King’s application “strict “First question. protections of curfew —because majority in For the sions and to the curfew Court, then, Judge passive-media-driven cul- of this to retreat from I think ture, conclusion, actively right of scrutiny” asserting freedom King’s “strict inex- derogation expression best kinds of plicable unnecessary and one footnote, larger against However, and should deemed unreasonable and than searches seizures. assigned Area v. Charleston Med. is terse and waived.” Tiernan error lacks Ctr., Inc., We, therefore, authority agree any support 140 n. 506 S.E.2d at W.Va. at it. arguments City 'argument' (refusing Appellants’ n. 10 address with the "the briefed). assignment support error is not much were not of this citizenship that our practical education can have. I

children targets all un- Charlottesville’s APPENDIX emaneipated persons under seventeen MICHAEL, Judge, dissenting in Circuit the hours of 12:01 a.m. applies between Charlottesville, City 159 F.3d Schleifer nights on and 1:00 a.m. and 5:00 a.m. week Cir.1998). (4th Friday Saturday nights 5:00 a.m. majority relegates Today, kids sec- mornings). (Saturday Sunday See Char- citizenship by upholding Char- ond-class (b) (hereinaf- Va., 17-7(a), lottesville, § Code nighttime curfew for minors. lottesville’s Code). it ordinance makes ter go night Forbidding children to out affects minors to “remain” unlawful for these rights, and such a restric- their fundamental (including private property open to the public only if it withstands strict can valid tion public) during curfew hours unless one scrutiny. curfew ordi- The Charlottesville exceptions id. eight are met. See curfew’s sweeps too fails test because nance exceptions a minоr to allows One these supports pa- than broadly usurps rather public minor is exercis- when “the remain rearing. child The or- over rental rights protected ing First Amendment constitutional defect as dinance has another Constitution, such as the free United States Although it is a crime to violate the well. speech and religion, freedom of exercise ordinance, only vaguely defined. the crime is 17-7(b)(8). assembly.” § A right of Id. apply minors are curfew does not exempted if minor is also from the curfew he rights.” This “exercising First Amendment running documentation that he is has written unconstitutionally vague, leaving exception is parent and as directed his “errand” children, parents, police and statutory criteria. document meets nine this particular punisha- conduct is guess whether 7(b)(6). § Minors who vio- [FN1] id. See 17— respectfully I dissent. ble as crime. subject pun- to criminal the curfew are late attempts majority ishment, to brush this dis- parents “knowingly and so are who claiming my ap- that under encourage” sent aside permit, or their children allow pass 17-7(c). proach “no curfew would constitu- § ever defy curfew. id. See muster,” I ante at 854-55. can as tional must con- written document FN1. The easily say majority’s approach that under the (1) following information: tain the mus- no would ever fail constitutional curfew (2) name; authorizing par- minor’s my proven that claim will ter. I’m afraid be (3) (4) address, name, signature, ent’s long majority’s standard is As as the true. (6) (5) number; telephone the tele- law, pass juvenile city can council parent be phone number where this as a routine measure because the curfew pendency during of the er- reached justification easy so to articulate. This is (7) rand; description of the a “brief’ the Constitution. should not stand under (8) errand; the minor’s destination up quarter popula- of our make Children destinations; mi- hours the “the tion, rights ignored. must not A and their be engaged nor is authorized city large seg- such a council cannot order 17-7(b)(6). § City Code errand.” See community stay ment of the home Schleifer every March Daniel thirty-three hours of week unless On minors, of these parents two adult scrutiny. Subjecting four other satisfies strict curfew minors, adult eighteen-year-old and an ordinance to this test does Charlottesville’s against City authority” brought suit Charlottes- not subvert the “democratic judgment that the Council, seeking deсlaratory City see ante at 854-55. On the ville In dis- is unconstitutional. authority must curfew ordinance contrary, the Council’s plaintiffs argued their minor bounds. The trict court the within constitutional exercised pro- rule, equal cannot, Fourteenth Amendment majority case as a the name Council funda- implicates their rights minority, violation that away of a tection take rights, including First Amendment in this all children under seventeen. mental case process rights right due and the intra- cates First Amendment liberties and “consti- movement”); plaintiffs parent state movement. The ar- tutional to freedom of City Diego, gued impermis- Nunez 114 F.3d the curfew’s restrictions San (9th Cir.1997) sibly process right (holding 944-45 burdened their due infringed parental rights). minors’ fundamental Nor- exercise discretion and control over mally, require City rearing would making of their children demon- strate that the ordinance satisfies scru- illegal. of this and control exercise discretion tiny. because this case involves Finally, plaintiffs challenged all the statute minors, the fundamental and not being vagueness as void for under the Due adults, majority those of concludes Process The district court Clause.[FN2] equal protection requires only intermediate for the claims ruled these after a scrutiny. disagree. See ante at 846-47. I trial on I the merits. would reverse on the Circuits, Like the Fifth and Ninth I would grounds Equal that the curfew violates the Equal hold that the Protection Clause sub- vagueness. Protection Clause is void for jects governmental to strict all clas- majority, plain- FN2. Like the I read the impact sifications that fundamental constitu- equal protection process tiffs’ and due Nunez, rights. tional F.3d at 945- arising claims as under the Fourteenth 46; Qutb Strauss, 11 F.3d n.& 6 Amendment, rather than Fifth (5th Cir.1993). Under this standard the alleged Amendment their com- Charlottesville curfew is unconstitutional. plaint. A. II. unique mention of Some status of chil Because the curfew criminalizes conduct of society necessary dren our to set the seventeen, persons age under the stage explanation why for the strict scruti City’s age-based use of this classification is ny necessary. Court has subject to the limitations of the Fourteenth “ ‘[ejhildren long recognized very have a Equal Amendment’s Protection Clause. place special in life which the law should Generally, making age-based laws classifica- Baird, 622, reflect.’” Bellotti v. 443 U.S. subject review, tions аre to rational basis see 633, 3035, 99 S.Ct. 61 L.Ed.2d 797 452, 470, Gregory Ashcroft, v. 501 U.S. 111 (Bellotti II) ‍‌​‌‌​‌​‌​‌‌‌​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌​​‌‌‌‌​‌‌​‌‌‌‌‌‍(plurality opinion). Accordingly, 2395, (1991); S.Ct. 115 L.Ed.2d 410 Massa- plurality the Bellotti II identified certain fac Murgia, chusetts Bd. Retirement v. 427 of tors that justify the Court has used to situa 307, 313-14, 2562, 96 U.S. S.Ct. 49 L.Ed.2d tions rights where “the constitutional of chil (1976), upheld 520 and thus if there is a equated cannot dren with of those adults.” relationship rational that ties the use of the 634, (identifying Id. at 99 3035 S.Ct. legitimate governmental classification to a peculiar vulnerability factors as “the of chil Doe, purpose, 312, Heller see v. 509 U.S. dren; inability their to make critical deci 319-21, 2637, 113 125 S.Ct. L.Ed.2d 257 informed, manner; sions in an mature (1993). However, age-based when an classi- importance parental of the role in child rights, fication affects fundamental a court rearing.”). These factors reflect the view must review the classification with “the most unique society “[t]he role in our Jeter, exacting scrutiny.” See Clark v. 486 family ... requires princi that constitutional 456, 461, 1910, U.S. 108 100 S.Ct. L.Ed.2d ples applied sensitivity flexibility with (1988) (unanimous decision); 465 also see special parents to the needs of and children.” Michigan Commerce, v. Austin Chamber of 633-34, See id. at 99 S.Ct. 3035. This focus 652, 666, 1391, 494 U.S. 110 S.Ct. 108 family on parent-child and the relation (1990). L.Ed.2d 652 ship is central in the Court’s decisions and The Charlottesville curfew ordinance does must be examined to understand when there implicate rights. justification fundamental Cf. Kolender concluding for that a minor’s Lawson, 352, 358, 1855, v. 461 U.S. 103 rights S.Ct. constitutional are not coextensive (1983) (loitering 75 L.Ed.2d 903 impli- statute of an those adult.

203 consistently authority parental ence to is linked to the re duty parents’ protect to raise and their chil- concept of flected the traditional Western Robertson, 248, v. dren. See Lehr 463 U.S. family parental as a “unit with broad authori 257-58, 2985, L.Ed.2d 614 103 S.Ct. 77 ty minor Parham v. over children.” See 390, (1983); Nebraska, Meyer v. 262 U.S. J.R., 584, 602, 2493, 442 99 S.Ct. 61 U.S. (1923). 400, 625, 67 This 43 S.Ct. L.Ed. 1042 (1979). Indeed, L.Ed.2d 101 “ the Court’s parents strong deference rests on the interpretation ‘constitutional has consistent presumptions that “natural bonds of affection ly recognized parents’ claim to authori [that] parents lead to act in the best interests ty in own household to their direct rear “parents possess children” and that ing of their children is basic in the structure maturity, experience, what a child lacks in. ” II, 638, society.’ of our Bellotti 443 at U.S. capacity judgment required for for mak- York, Ginsberg (quoting 3035 v. New S.Ct. Parham, ing life’s difficult decisions.” See 639, 1274, 629, 390 U.S. 88 S.Ct. 20 L.Ed.2d 602, 603, 2493; 442 U.S. at 99 S.Ct. see also (1968)). authority undoubtedly II, 3035; Bellotti 443 U.S. at 99 S.Ct. parental broad. control comes into When Yoder, 406 U.S. at S.Ct. play, “unemancipated minors lack some Only in able limited instances is the state most fundamental self-determi parent’s power to assert a broad to control including right liberty even the nation — example, the activities minors. For sense, i.e., its narrow to come and legal guardian the state acts as the for a go at will.” Dist. Vernonia Sch. Ac 47J child, much, all, it will assume if not of a ton, 646, 654, U.S. parent’s Similarly, prerogatives. traditional L.Ed.2d 564 public the teachers and administrators of a parentis” “in school will act loco while chil parent’s authority broad does custody physical dren are in their generally carry “[O]ur over the state. “ ” parents ‘delegate part [their] rejected system long ago any by placing to the school under their children notion that a child is ‘the mere creature Vernonia, its instruction. See 515 U.S. at and, contrary, the State’ on the asserted 655, 115 Blackstone, (quoting W. parents generally right, coupled ‘have the England Commentaries the Laws high duty, recognize prepare with the Fraser, (1769)); Bethel Sch. Dist. No. obligations.’” [their children] additional 478 U.S. 106 S.Ct. 92 L.Ed.2d Parham, (quot at 99 S.Ct. 2493 U.S. (Bren (1986); id. S.Ct. 3159 Sisters, Society Pierce v. nan, J., concurring judgment). [FN3] (1925)); 69 L.Ed. 1070 see majority FN3. The overlooks Vemonia’s II, also Bellotti by quoting suggest that real thrust it to 3035; Yoder, 205, 232, 406 Wisconsin U.S. rights a minor’s constitutional with re (1972) (“This 1526, 92 S.Ct. 32 L.Ed.2d 15 subject “cus spect to the state are primary parents upbringing role of the in the limitations,” 847, tomary at that ante beyond of their children is now established liberty right of in its “inelud[e] even the tradition.”). enduring debate as an American sense, i.e., right narrow the to come repeatedly that The Court said it is will,” Vernonia, go (quoting at 515 id. “ custody, ‘cardinal with us that the care 2386). 654, Had U.S. at 115 S.Ct. the par nurture of the child reside first in the majority quoted very in the next line ents, primary whose function and freedom Vernonia, it that would be obvious the preparation obligations include the state that minors lack some case makes clear ” supply can neither nor hinder.’ See Bellot rights of of the most fundamental self- (altera II, 638, ti 443 at 99 3035 U.S. S.Ct. par respect with to their determination original) in (quoting tion Prince v. Massa ents, 654, not 515 at the state. See U.S. chusetts, 158, 166, 438, 321 64 88 U.S. S.Ct. (“They subject, even 115 S.Ct. 2386 (1944)). recognition L.Ed. 645 This broad freedom, physical as to to the con their parents’ right upbringing the to control the parents guardians.”). trol of or repеatedly emphasized that a of their children and of constitutional defer- Vernonia 204 603, may Id. at 99 2493 rights officer of the state.” S.Ct.

minor’s “vis-a-vis State added). Thus, except special (emphasis legal depend on the individual’s relation circumstances, normally state must defer ship with and that “central” the State” degree parental to the exercise of broad was fact that to the Court’s decision discretion. claiming children a constitutional privacy had “been committed It is also clear that while the state does custody temporary of the State as independent in the welfare have interest at 115 schoolmaster.” See id. S.Ct. children, superseded this interest 2386; 655, 656, see also id. at parents’ right to broad dis exercise 2386; Nunez, cf. 114 F.3d at See, raising e.g., their children. cretion (rejecting 944-45 as “out of context” the Yoder, 229-30, 1526; 406 at 92 U.S. S.Ct. majority quotation 534-35, uses from Pierce, 571; same 268 at U.S. Vernonia). Meyer, 262 at 43 U.S. S.Ct. Conse quently, rights of minors in relation to (as way, parens In a similar the state analyzed to the state must be consider occasionally patriae) may displace par- minor and the interests the state rearing primary role child in order to ents’ parents. Par but also the interests Cf. Thus, protect a child’s welfare. the state (minor’s ham, 442 at 99 2493 U.S. S.Ct. may trump parental delinquency discretion inextricably par “interest is linked (because proceedings parental control has al- obligation ents’ interest in and for the wel Martin, faltered), ready see 467 Schall child”). Thus, fare and health of the 253, 265, 104 81 L.Ed.2d 207 U.S. S.Ct. analysis complicated by of a minor’s (1984); Gault, 1, 17, In re U.S. S.Ct. (a party parent) the addition of this third (1967), or in situations L.Ed.2d can claim of who bolster either the state’s “physical a child’s or mental health is where rights. the minor’s assertion Parham, jeopardized,” at see U.S. Yoder, at Cf. U.S. S.Ct. 1526 2493; Yoder, 233-34, S.Ct. U.S. (recognizing “competing par that interests of circumstances, In these ents, children, requires and the State” addi strong presumption parents are able and analysis). tional [FN4] willing to act in the best interests of their ACLU, Recently, FN4. in Reno v. Parham, may be children rebutted. See 2329, 2348, U.S. power 99 S.Ct. 2493. The state’s (1997), recog- L.Ed.2d 874 the Court limited, displace parental discretion strength nized that it is “clear that the however, justified case-by- and must be on a government’s protect- interest in case basis. equally strong” in minors is not all “mаy acting parents That at times be some applications of the Communications De- ... against the interests of their children” cency Specifically, Act. the Court indi- caution, hardly a basis for but is creates government’s cated interest pages reason to discard wholesale those protecting minors from indecent materi- experience parents human teach greatly al would be diminished where “a generally do act in the child’s best inter- parent 17-year-old allow[s] her to use governmental ests. The statist notion that family computer to obtain informa- authority power supersede parental should she, tion on the Internet that her parents in all cases because some abuse parental judgment, appropriate.” deems neglect repugnant children Amer- added). (emphasis id. See ican tradition. Although language in the Court’s Prince (citations 602-03, Id. at 99 2493 omit- S.Ct. Massachusetts, 438, 321 64 S.Ct. 88 U.S. ted). Indeed, “[sjimply (1944), because the decision L.Ed. 645 at “taken broadest agreeable parent of a is not to a child or sweep” support majority’s would lend to the because it involves risks does not automati- expansive power, view of state Prince has cally power beyond to make that deci- application transfer the limited its facts. See Yo der, agency parents from 406 U.S. at 92 S.Ct. 1526. Prince sion some under a are defined as minors under state law differ challenge to a conviction involved ent from those of adults? The answer is that for that made it criminal child labor law rights basically a minor’s constitutional are age of parents boys allow under the twelve adults, as those of but in same certain eighteen to news- girls younger than sell may “significant situations there state in Prince, 321 papers and similar items. See present ... that terest[s] [are] 160-61, 438. The Court at 64 S.Ct. U.S. support case of an adult” that will a broader conviction of Mrs. Prince sustained the authority regulate minors. See Planned (and niece), nine-year-old taking ward her 52, 75, Danforth, Parenthood v. selling religious girl, with her to assist (1976).[FN5] L.Ed.2d 788 S.Ct. during evening hours. id. literature See justify regulation, they When these interests 161-62, 438; at 64 S.Ct. id at S.Ct. do so not a minor’s constitutional J., also (Murphy, dissenting); see Gins- rights always are inferior to those of an adult 638-39, 1274. berg, 390 at 88 S.Ct. U.S. government’s specific but rather because the pro- state’s interests Court rulеd regards minors interests as are sometimes nine-year-old psychological from tecting the regulation allow sufficient to to survive physical might result from harms scrutiny. Accordingly, strict I would hold justify sufficient to Prince’s activities were rights” that the “fundamental of minors are 169-70, 64 conviction. 321 U.S. at See and, no less than of adults fundamental those state, 438. The was careful to S.Ct. thus, protected vigor must be with the same however, that its decision did “not extend Nunez, scrutiny analysis. under See beyond presents.” facts See id. the case 114 F.3d at 945. Accordingly, at the Court S.Ct. FN5. There are limited differences im- application to situ- has since limited Prince’s bedded in our Constitution. For in- “ ” is a ations where there ‘substantial threat’ stance, Twenty-Sixth Amendment “physical of harm to or mental health of guarantees to vote order, public safety, peace, the child or to the eighteen and those older. See U.S. Const, Yoder, or welfare.” See U.S. amend. XXVI. light 1526. In of Yoder and the facts of Prince, I Prince to allow a state to read parental the exer-

override discretion when is drawn from This conclusion the Su this a substantial cise of discretion creates analyzing preme general approach to Court’s safety of children. threat the health of minors. The Court makes it threat, “[mjinors, adults, assessing suggests In as well as are this Prince clear possess protected by the Constitution and very young particularly vulnera- children are rights.” Danforth, 428 See to harm. ble 2831; see also Tinker v. U.S. This discussion underscores the Dist., Indep. Community Des Moines Sch. recognition special of the status of Court’s 503, 511, L.Ed.2d U.S. family predominance children (1969) (“[sjtudents ‘persons’ ... are un particular, unit. underscores possessed of [who] der our Constitution traditional Court’s deference to the rights which must fundamental the State re parents of their chil- over the activities Gault, 1, 13, spect”); In re background, I now turn to dren. With this (1967) (“whatever 18 L.Ed.2d proper standard of that must be precise impact, Four be their neither the applied in this case. Rights nor the Bill of teenth Amendment alone”). Indeed, simple fact of for adults B. justify age minority cannot itself a dilu challenge in equal protection minors’ protection. Bellotti tion of constitutional analyzed must be under strict scru- case Baird, 61 443 U.S. S.Ct. (Bellotti II) tiny. (1979) (four-vote conclusion flows from the basic This L.Ed.2d 797 (“A child, majority Why merely question ignores. plurality opinion) are the on ac the beyond minority, pro- rights persons who count of his is the constitutional federal above, Constitution.”)- of what has been said with Because “much the tection consent], applies respect [spousal to rights do not mature “[e]onstitutional equal [parental consent].” to 428 U.S. force magically only one being come into explained The at 96 S.Ct. 2831. Court majority,” age of attains the state-defined “[m]inors, adults, protect- as are well (em- at Danforth, 428 U.S. S.Ct. by possess constitu- ed Constitution added), age, persons, regardless of phasis all rights.” it acknowl- tional Id. system. rights under our Cf. possess these edged that “the State has somewhat broader II, at 99 S.Ct. Bellotti U.S. authority regulate of children to the activities (“children by generally protected Consequently, id. than of adults.” See guarantees against gov- constitutional same remains, then, explained: “It to exam- Court (em- adults” deprivations as are ernmental any significant is state ine whether there added)). phasis conditioning in an abortion on the interest generally possess the same minors While ... in parent present a that is not consent of rights governmental deprivations as against at the case of an adult.” See id. S.Ct. adults, unique to minors can considerations added). analysis (emphasis dem- weight government’s to inter- lend more that the Court did not assume onstrates Nunez, 114 regulating this class. See est authority always possesses the state broader 945; Qutb, 11 F.3d at 492 n. 6. F.3d at contrary, To it regulate to children. four-justice plurality noted that Bellotti II a significant in- there were looked whether Supreme three reasons used justified specific to minors that terests differently “justify[ treating minors from law, ]” indicating that the law would be uncon- peculiar provide under Constitution: “the adults stitutional if these interests did not children; inability vulnerability support for broader sufficient examining informed, regulate minors. After the inter- in an ma- make critical decisions state, by struck ests advanced the Court manner; importance pa- and the ture parental law down the consent rearing.” at in child 443 U.S. rental role justification.” id. at lacked “sufficient 3035. If minors are to be accorded S.Ct. 75, 96 S.Ct. rights unequal to adults regulation, particular of a these fac- reason applied reasoning it The Court the same support gоvernment’s subsequent parental assertion to its tors must used Danforth “ authority. only upon In Bellotti II con greater ‘It is such consent cases. the Court judicial bypass requirement structed its premise deprive a ... that a State permit undertaking apply only the consent depri- ... [when children of similar justifiably who could those minors constitutionally vation] would be intolerable ” Thus, differently by treated from adults. II, 443 at 635 n. for adults.’ Bellotti U.S. pass procedure allow a must minor to demon Ginsberg, (quoting 390 U.S. 99 S.Ct. 3035 (1) and in strate that either she is mature (Stewart, J., concurring at 88 S.Ct. enough to abortion formed make the decision added). result)) (emphasis in the herself or the abortion is her best principle illustrated v. Akron Re- interests. See Ohio Ctr. for forbidding a of statutes Court’s treatment Health, prod. U.S. parental an abortion without minor to obtain (1990) (Akron II); 2972, 111 L.Ed.2d 405 steadfastly consent. The Court has insisted 647-48, II, at Bellotti judicial by- that such statutes must have First, justification that minors the state’s II, See, pass procedure. e.g., Bellotti 443 generally “to critical are not able make deci (consent 647-48, stat- U.S. at 99 S.Ct. 3035 informed, manner,” Bel sions mature 72-75, ute); Danforth, 428 at U.S. II, 443 is lost lotti U.S. (same). analysis used the Court adjudged and in when a minor is mature particularly instructive. After justifica immaturity formed. Without Danforth ruling spousal provision was tion, to, consent state has little reason and indeed unconstitutional, cannot, parent’s Dan require the Court addressed consent. Cf. (parent’s saying forth, 428 96 S.Ct. 2831 parental provision, consent statute’s in outweighed by interest abortion decision is cal to regulating its interest in adults. Yet rights privacy right). Similarly, mature minor’s of minors could still be treated differently consideration, greater final their Bellotti’s “fundamental” re rights protected not scrutiny are with strict imposed strictions on minors rein ranging implications. review. This has far “importance parental force the in role Legislative pass many regu- bodies can laws II, rearing,” child Bellotti at lating pass conduct that would intermediate premised is presumption on the scrutiny scrutiny. but fail strict Under the parents discharge “responsibil will their majority’s approach, ap- such laws could be ity for well-being.” [their] children’s See id. plied to all minors applied but could not be 638-39, minor When a can (whose any rights adults fundamental are demonstrate to a court that an abortion inis protected by scrutiny), though even interests, her best the state’s interest in in government regulate had no reason mi- volving parents is reduced so much that any nors more than it did adults. The ma- longer require the state can no a minor to jority’s therefore, holding, allows a minor to parental Therefore, obtain consent. when deprived rights when a minor is or an mature abortion is in her best deprivation similar constitutionally would be interests, parental requirements consent are adults, though intolerable for even the state unconstitutional because the state’s interests any lacks reason for different treatment. minors) (specific to justify do not a restric justified essentially result cannot be tion that applied could not be to adults. creates a citizenship per- second-class for all parental example The consent demon- age majority. sons under the For these sometimes, government may strates that the persons, rights federal constitutional will always, but not protecting have interests in being magically only “mature come into minors that impose special will allow it to [they] age ] state-defined attaint restrictions that narrow a minor’s constitu- majority,” Danforth, 428 U.S. at rights. tional It follows that courts must 2831.[FN6] regulation look at in question to deter- Although disagree FN6. I with the de- if justification mine the state has sufficient approach tails of the taken dis- claim that rights a minor’s equal court, are analysis trict properly its . focused Only of an through process adult’s. can on the existence absence of interests age majority any specific state-defined justify have to minors that would “ac- significance cord[ing] regulatory insofar rights as constitutional the state more lati- governing tude children certain concerned. circumstances.” Schleifer Charlottesville, F.Supp. know that special We we must evaluate the (W.D.Va.1997) injunction (preliminary may justify greater degree interests that analysis adopted ruling) that was in final governmental authority over minors in the added). (emphasis approach, Under Still, specific regulation. context of the only “[w]hen the Bellotti factors ... cut question scrutiny remains as to which level of oversight” favor of increased state will appropriate involving is in eases constitution- intermediate, strict, scrutiny than rather rights. Logie compels al that strict apply. See id. 541-42. apply. Moreovеr, majority’s approach com is It is clear from the discussion above pletely inconsistent with the majority’s categorical approach wrong. parental Court’s decisions consent majority apply would intermediate scru- above, abortion context. As discussed tiny minors, involving in all eases even those constitutionally regulate state cannot a mi government justification in which the no rights by requiring parental nor’s abortion specific infringing upon to minors for regulation provides judi consent unless the rights. fundamental In the latter situation bypass. majority’s holding, cial howev governmental er, regulating interest mi- regulate mi would allow the state to majority’s approach nors under regulation nor’s abortion if identi- the state’s 208 “ justifying greater restric- substantially gov compelling to interest ‘important’ ‘is related’ adults”); Qutb, 11 tions on minors than interests,” at ante 847. Such ernmental (same). approach This F.3d at 492 n. 6 Supreme clearly at odds with result is the principled approach for provides therefore always state approach, as the has Court’s deciding children be treated dif- when important regulating interest abortions. pur- ferently for constitutional from adults Wade, 113, 93 Beginning with Roe v. 410 U.S. poses. [FN7] 705, (1973), L.Ed.2d 147 Su S.Ct. 35 majority plurali- relies on the FN7. The preme repeatedly recognized Carey Population ty opinion Ser- legitimate “important and interest state’s International, 691- vices U.S. protecting potentiality of life.” human (1977), 2010, L.Ed.2d 97 S.Ct. Id. Planned at 93 S.Ct. See also argument support the Char- Casey, 505 Parenthood v. U.S. subjected to should be lottesville curfew (1992); 2791, 120 L.Ed.2d 674 Harris v. S.Ct. scrutiny. at less than strict See ante 324-25, McRae, 448 U.S. Carey is a slender reed for this it L.Ed.2d interest First, Carey’s plurality proposition. self state abortion statutes would enable II, opinion was decided before Bellotti Therefore, scrutiny. meet intermediate followed reason- and later cases have scrutiny majority’s holding that intermediate Second, ing Carey II. itself of Bellotti regulation apply to of minors sim should recognition best as a read ply squared with cannot significant unique and interests in state’s require that a state cannot Court’s insistence make it regulating children will easier ‍‌​‌‌​‌​‌​‌‌‌​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌​​‌‌‌‌​‌‌​‌‌‌‌‌‍parental minor to obtain consent mature on minors justify greater restrictions Indeed, majority if was an abortion. Carey, at than on adults. Seе 431 U.S. correct, completely the state could ban abor (plurality opinion). age eighteen. under the tions for women adopt and Ninth Circuits this The Fifth fallacy of applying This confirms the inter analyze equal approach protec- minors’ scrutiny involving to cases the fun mediate scrutiny strict fun- challenges tion with when rights of minors. damental Nunez, implicated. rights damental are See by applying I would avoid these difficulties 945-46; Qutb, 11 F.3d 114 F.3d at 492 & equal scrutiny protection to all chal- strict 6; Columbia, cf. n. Hutchins v. District of lenges involving rights, regard- fundamental (D.C.Cir.1998) (opinion 144 F.3d 805-10 less of minors adults are involved. whether J.) (intermediate Rogers, scrutiny); id. at minors approach, must be treated Under J., (Tatel, concurring judg- 825-27 government as adults whenever same ment) (strict (Silberman, scrutiny); id. at 828 specific support

lacks interests minors to J., (finding no dissenting) fundamental regulatory authority over more restrictive was affected therefore II, them. Cf. Bellotti at 635 n. U.S. applying age-based review to rational basis 74-75, 3035; Danforth, protection challenge). I equal would [FN8] when S.Ct. 2831. circumstances join Equal hold that circuits and these trigger governmental par- that are interests subjects governmental all Protection Clause minors, interests, ticular to these when cou- impacting on the fundamental classifications interests, pled government’s with the other minors to rights strict scru- government’s greater can make the claim for tiny. If stronger.

restrictions on minors much Flores, 301- FN8. Reno v. compel- interests taken as whole are (1993), these 1439, 123 L.Ed.2d 1 (if ling, government’s regulation narrowly scrutiny ap- that strict should indicates tailored) will survive with re- ply mi- the fundamental minors, spect though even fail the would In Flores nors involved. a class Nunez, test in of adults. challenged regulation the ease an INS minors (“the juvenile placed requires F.3d at 945 Bellotti framework enables aliens group care dur- has a facilities courts to determine whether the state institutional other, ways goals deportation proceed- reasonable achieve those pendency of constitutionally pro burden on lesser guardian or adult relative is not ings if a activity, government] may not [the tected custody. to take The Court available way greater If it choose the interference. scrutiny applies recognized that strict all, drastic acts at it must choose ‘less involved,” rights are “when fundamental ” Blumstein, v. means.’ Dunn 302, 305, 113 but it id. at S.Ct. see (1972) 31 L.Ed.2d 274 92 S.Ct. rejected process claim minors’ due Tucker, 479, 488, (quoting v. 364 U.S. Shelton that no fundamental because it found (1960)). 5 L.Ed.2d 231 S.Ct. right existed under the circumstances 1439; By restricting id. at of minors dur- the case. See the freedom hours, 304,113 (stating ing that the ordinance treats all cf. id. at curfew age of as a minors under the seventeen rights must not “the child’s fundamental society protect INS). threat order approach impaired” The be community juvenile from crime. This broad adopted by Fifth and Ninth Circuits narrowly is not tailored meet restriction im- is therefore consistent with Flores’ objective prevention. ordi- of crime The scrutiny plication applies strict though nance treats all minors the same even rights are when a minor’s fundamental exceedingly percentage small commit an in the balance. Equal forbids crimes. The Protection Clause grouping fundamental such crude C. stake, rights limiting and the curfew’s are can- The Charlottesville curfew ordinance exceptions providing hours and does not di- scrutiny not withstand strict and should be shortcoming. minish this Equal struck down. The Protection Clause emergency say This is not to curfews rights by requir- protects our constitutional broadly applicable and limited in that are high ing government that the clear a hurdle circuit duration are unconstitutional. Our regulating in before the realm of fundamen- previously, properly, and that such ruled review, rights. tal Under strict emergency proper exercise of measures are “statutory impinging on fun- [a classifications See, power. e.g., police United the state’s narrowly right must be tailored to damental] (4th Chalk, 441 F.2d 1280-83 States compelling governmental serve interest.” Cir.1971). Here, however, have a curfew we Commerce, Michigan Austin v. Chamber of provision with no sunset curfew —a 652, 666, 494 U.S. class, sweeps in all minors under a vast (1990); L.Ed.2d 652 see also Memorial seventeen, law-abiding. whom most of Hosp. Maricopa County, permit Equal Clause does not The Protection 39 L.Ed.2d 306 The society kept segment of to be such a broad fails strict Charlottesville ordinance scru- every night simple off streets -with the (and test, tiny notwithstanding its stated prevent crime.” generalization, “We want (1) juvenile worthy) objectives reducing tailoring requires something less Narrow (2) crime, wellbeing promoting safety and drastic. juveniles, fostering strength- ening parental responsibility. objective promoting City’s second juveniles well-being also safety and quite agree majority pro I with the scrutiny. strict This inter- falls short under tecting community from serious crime is compelling in this case because est is governmental compelling interest. See Indeed, parental authority. displaces problem is that ante 847-48. The says only has a majority that the narrowly tai curfew is not Charlottesville youngest “strong” protecting interest goal. affect lored to forward this “Statutes society from harm. ante at See members must be drawn with not sufficient “Strong” interests are 847-48. compelling satisfy scrutiny. Only ‘precision,’ and must be ‘tailored’ serve objectives.... suffice. legitimate [I]f there are interests City’s protecting resulting gradual development stated interest fits from the maturity judgment age that is minors under the of seventeen is not needed preparation responsible for a adult life. This compelling was not here because the curfew parental impossible exercise of discretion is designed supportive parental under the ordinance. [FN9] recognized Bellotti II that “restrictions role. exception FN9. The curfew’s sixth allows minors, especially supportive of those a minor par- to run an “errand” his role, parental important to the child’s signed ent if he carries a document growth ... maturity” chances for full meeting statutory nine criteria. justify gov- can therefore increased 7(b)(6). City § rigid Code This ex- 17— authority regulate protect- ernmental the ception, with its bureaucratic demand ed activities of minors. at 638- See U.S. detail, parents for not does afford added). (emphasis This oper- discretion to allow their children to authority present govern- can be when the any degree independence. ate with of regulation complements mental interest supra (listing require- See note nine authority parent. By the traditional of the ments). supporting parental the exercise of discre- Indeed, purposefully the ordinance was de- tion, aligns regulatory power the state signed displace parental discretion with parents of the interests who have broad day the will of the Council. On the discretion to control the of activities them enacted, agenda curfew was the Council’s parents children. The cоmbined interests of following said pur- about the curfew’s justifi- strengthen and the state therefore pose: “parental responsibility for the where- governmental regulation. cation for Gins- abouts of their children is norm and berg, example, prohibited for the direct sale exist, legal where that does not then the pornographic magazines to minors in or- responsibility. sanction should enforce such strengthen parents’ der to control over them Further, well communicated curfew ordi- children’s access to such material. See 390 ... impose community-wide nances stan- at U.S. S.Ct. 1274. The Court parents dard on who unwilling are unable or note, however, gov- was careful to that the added). (Emphasis to set such limits.” displace parental did not authority: ernment role, supporting than parental Rather prohibition against “the sales to minors does supersedes this curfew it. It reflects the parents purchas- not bar who so desire from governmental “statist power notion that magazines for their children.” See supersede parental authority should in all 1274; at id. see also Reno v. parents” cases because some fail to exercise ACLU, 117 S.Ct. at 2346-48. Laws like the Parham, control over their children. See Ginsberg may justified one thus be be- at govern- U.S. S.Ct. 2493. This they parental authority cause defer to paternalism “repugnant mental to Ameri- decisionmaking. can tradition.” Consequently, Id. attempts the curfew to achieve its stated ordinance, however, The Charlottesville purpose promoting safety and well- patemalistieally displaces pa- exercise being by displacing parental of minors au- by making illegal rental par- discretion for children, thority upbringing over the ents to allow their children to move about not a compelling govern- curfew does serve independently night. parents Yet are bet- mental interest. maturity ter able to assess their children’s capacity judgment city than a council. may legitimately Parents decide that the best It follows that the ordinance’s third stated way permit to raise their children is to them purpose fostering strengthening pa- midnight be out on their own after responsibility rental also falls short. Gins- Nunez, occasion. F.3d at 952. In berg recognize “sup- and Bellotti II that laws words, parents may legitimately other con- role,” рortive II, parental Bellotti granting risk of clude added), children some (emphasis U.S. independence compared is small justify to the bene- some limitation on the constitu- process unacceptable. As rights minors. when laws of law makes this tional recognized long time displace primacy parental discretion ago, norms, by imposing community-wide the tra- certainly dangerous “It if parents over child rear- would be

ditional legislature large enough to longer support any could set a net ing is no available offenders, possible catch all it to and leave cur- limitation on the of minors. The step say the courts to inside and who could paren- attempt strengthen to foster and few’s detained, rightfully should who responsibility by displacing parental au- tal would, extent, large. set at to some thority support compelling state does judicial legislative substitute the for the interest. department government.” reasons, For I would hold that these Kolender, at 358 n. satisfy curfew fails to Charlottesville Reese, (quoting United States v. Equal and thus violates the Protec- (1875)). 23 L.Ed. 563 other tion Clause. words, prosecutors “[w]ell-intentioned judicial safeguards do not' neutralize the vice III. Bullitt, vague Baggett law.” of v. 377 U.S. I that Even if could conclude Charlottes- 360, 373, 1316, 84 12 L.Ed.2d 377 S.Ct. scrutiny, passed curfew I would ville’s law must draw a sufficient- The itself adopted hold that the ordinance as is void for ly illegal legal and the clear line between vagueness under the Due Process Clause. police both our our citizens. specifically, I More would hold that the ordi- “exception” im- nance’s First Amendment is B. permissibly vague. brought Vagueness challenges against regard a statute “on its face” without A. conduct, specific applied” plain- “as to the vagueness doctrine of the Due Process conduct, grounds. tiffs or on both Facial “requires penal that a Clause statute define statute, challenges strike at the heart of the the criminal offense sufficient definite- and, successful, any ap- if and all invalidate ordinary people can ness that understand plication challenged provision of until it is prohibited what conduct is and in a manner given sufficiently that a construction clarifies encourage arbitrary that not and dis- does 452, Thompson, v. it. See U.S. Steffel criminatory enforcement.” Kolender v. Lаw- (1974); 474, 1209, 39 L.Ed.2d 505 cf. 94 S.Ct. son, 352, 357, 1855, U.S. S.Ct. 371, 379, Connecticut, Boddie v. 401 U.S. (1983). Although process L.Ed.2d 903 due (1971) (as 780, applied). 28 L.Ed.2d 113 S.Ct. satisfy requires require- that a both statute agree majority that fa- I therefore with the ments, special importance: is of the second strong invalidity vagueness grounds on is cial “ legislature [must] ‘a establish minimal is to be administered infre- medicine guidelines govern law enforcement’” disagree, how- quently. ante at 853. I See arbitrary prevent enforcement. See id. at ever, majority’s apparent belief with the (citation omitted). 357-58, 103 S.Ct. invalidating a to avoid courts have discretion statutory language lacks sufficient When (“It facially statute. id. unconstitutional Cf. certainty expression,” or id. “definiteness preferable re- is for courts to demonstrate 1855, 357,103 S.Ct. enforcement of the law entertaining challenges applica- straint subjective purely decisions of is left arise”). challenges tions of a law as those juries. police, prosecutors, and id. at See rarely a law for facial Courts invalidate 358, 1855; Village Es- S.Ct. vagueness. courts exer- This is of Hoffman Estates, Inc., Flipside, tates v. discretionary restraint but because few cise Hoffman 489, 498, 71 L.Ed.2d 362 challenges satisfy high S.Ct. nor- facial burden (1982) rule, (citing Grayned Rockford, law is mally imposed. general As a “only impermissibly if vague 408 U.S. 92 S.Ct. 33 L.Ed.2d on its face is [it] (1972)). vague applications.” guarantee of in all of its Our Constitution’s due Hoff- (1967) (“The Estates, at 495 & n. 17 L.Ed.2d 629 dan-

man 455 U.S. ger chilling upon [a] effect the exercise S.Ct. guard- rights vital First Amendment must be majority ignores exception What the is the against by clearly ed sensitive tools which general “a to this rule: when law reaches ‘a being pro- inform what is [individuals] constitutionally pro amount of substantial scribed.”); Kolender, 461 U.S. at 358 n. ” conduct,’ vagueness challenges tected facial (citing Keyishian 103 S.Ct. 1855 Button and “permitted]” plaintiff may and a attack rule). support exception general Espe- “ being applied vague law ‘as to con then, cially, chilling effects are a dan- Kolender, than duct other his own.’” See ger protected a “substantial amount” (cita 461 U.S. at 358 & n. 103 S.Ct. 1855 activity implicated, challenges facial must omitted) (First tions Amendment words, permitted. other we do not by regulation freedom movement affected judicial case-by-case to wait for have review loitering wandering); see also Hoff particular applications of the law. Estatеs, 494-95, 102 man 455 U.S. at City’s regulates Because the a sub- (recognizing general applies rule protected activity, stantial amount of I would “implicate to statutes that no consti [ ] subject challenge. hold it is to a facial tutionally protected (emphasis conduct” add Court’s decision in Kolender all ed)); Wilson, Gooding v. 405 U.S. but mandates this conclusion. In Kolender (1972); Ap 31 L.Ed.2d loitering the Court held that a California State, Secretary theker unconstitutionally vague statute was on its 1659, 12 L.Ed.2d 992 persons face. The law made it crime for (facial challenge restricting to law interna who “loiter wander the streets” to fail travel). exception “logically tional provide “credible and reliable” identifica- similar” related and to the doctrine of sub peace requests tion when officer it under overbreadth, Kolender, stantial see 461 U.S. justify Terry circumstances that would 8, 1855, at 358 n. in that 103 S.Ct. is 353, 357, stop. See 461 at U.S. 103 S.Ct. chilling vague necessitated effect that Ohio, generally Terry 1855. See v. 392 U.S. protected laws can have on the exercise 1868, (1968), 88 S.Ct. 20 L.Ed.2d 889 and As freedoms. ex permitted later cases. The Court a facial plained, challenge it found that “law because objectionable quality vagueness The and reache[d] a substantial amount of constitu- conduct,” tionally Kolender, protected depend upon see overbreadth does not absence (internal 461 at 358 n. 103 U.S. S.Ct. 1855 criminally of fair notice to a accused omitted), quotation notwithstanding marks upon delegation legislative unchanneled dissenting argument that law was powers, upon danger tolerating, but “impermissibly vague applica- in all of its freedoms, in the area of First Amendment facially tions” and could not be attacked be- penal susceptible the existence of a statute cause it had an “unmistakable core that a sweeping improper application. forbidden,” person reasonable would know is These freedoms are delicate vulnera- 370, 371-72, id. at (emphasis 103 S.Ct. 1855 ble, supremely precious as as in well our added). The that concern led the Court to society. may The threat of sanctions deter “ challenge ‘po- allow the facial was the law’s potently exercise almost as as arbitrarily suppressing tential First application actual of sanctions. Because ” Amendment and the liberties’ “constitution- First Amendment freedoms need breath- al to freedom of movement.” id. at survive, ing space government may reg- (quoting 103 S.Ct. 1855 Shuttlesworth v. only in specific- ulate the area with narrow ‍‌​‌‌​‌​‌​‌‌‌​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌​​‌‌‌‌​‌‌​‌‌‌‌‌‍87, 90, Birmingham, 382 U.S. 86 S.Ct. ity. (1965)). 15 L.Ed.2d 176 The same concerns Button, 415, 432-33, NAACP v. 371 U.S. underlie the curfew this The main case. (1963) (citations 9 L.Ed.2d 405 difference is First Charlottesville’s Amend- omitted); Keyishian but, below, and footnote see also “exception,” explain ment as I 589, 604, 609, Regents, exception impermissibly vague Board 385 this U.S. is itself majority’s cannot save statute from a FN10. therefore citations to Hoff- Indeed, support man Estates do not challenge. in this the conclu- facial the need may sion that federal courts wait for as- stronger case for facial review is even than applied cases,” challenges “marginal that Kolender because the curfew ordi see ante at 854. Estates clear- Hoffman lawabiding applies nance to all minors under ly analysis limits its to those cases Kolender, age of seventeen. The law which constitutionally protected “no con- contrast, required credible reliable implicated by duct” is challenged only peace had identification officers 494-95, 497, law. See 455 U.S. is, already justifiable Terry stop, made a 1186; Kolender, S.Ct. 461 U.S. at 358 n. they temporarily after had detained a sus 8, 103 S.Ct. 1859. A wait-and-see pect of “a reasonable articulable approach justified is when there is suspicion person en [wa]s seized chilling no risk of a substantial amount gaged activity,” Georgia, in criminal Reid v. protected activity. 438, 440, 100 65 L.Ed.2d U.S. S.Ct. (1980) curiam) (per (following Terry). C. Accordingly, Kolender makes clear that a “A law is [unconstitutionally] considered challenge appropriate facial in this ease. vague person if ‘a intelligence of normal must guess meaning at its and differ as to its majority asserting errs in that be- ” application.’ Administrator, Elliott v. Ani cause “core First Amendment activities” are Inspection Serv., mal & Plant Health ordinance, protected by “marginal cases” (4th Cir.1993) 140,145 F.2d (quoting Connal challenged applied, the statute Constr., ly 385, 391, v. General 269 U.S. assuming see at 854. ante Even “core” L.Ed.„ (1926)); see also protected, argument ap- activities are this Lanier, United States U.S. pears parallel dissenting rejected view 1219, 1225, 137 L.Ed.2d 432 proper inquiry Kolender. Thе is not (unanimous decision); Roberts v. United protected whether some core values but Jaycees, States whether curfew “reaches ‘a substantial Athough L.Ed.2d 462 constitutionally amount of protected applies generally vagueness con- standard chal ” lenges, duct,’ Kolender, degree vagueness “[t]he at 358 n. depends ... part Constitution tolerates (quoting Hoffman, S.Ct. 1855 455 at U.S. enactment,” the nature of the Es 1186). 494, 102 S.Ct. The First Amendment Hoffman tates, 498, 455 U.S. at 102 S.Ct. 1186. When protects a substantial amount of conduct in regulation” a statute involves the “economic “political protest religious addition to business, “subject of it is a to less strict 854, worship,” vagueness ante at and the 498, vagueness test.” Id. at 102 S.Ct. 1186. applied protect doctrine must be these Similarly, if a law a require includes scienter rights. Deferring as-ap- for [FN10] review ment, degree clarity this too will relax the of plied challenges impermissibly chilling risks required “mitigate because can scienter of a the exercise substantial amount of con- 499, vagueness.” law’s id. See at stitutionally protected activity. Cf. 11126 hand, 1186. On the other “the standard of Blvd., George’s Baltimore Inc. v. Prince certainty higher” is impose for statutes that (4th Cir.1995) County, 58 F.3d 993-94 criminal, civil, opposed as sanctions. See (en banc) (ruling permit” that “courts must Kolender, 461 at 358 n. U.S. challenge significant facial when there is risk 1855; Estates, 498-99, 102 supra at Hoffman chilling speech of First Amendment important S.Ct. The last and “most “ effectively chill ‘can be alleviated affecting [degree clarity factor of] ” through challenge’ (quoting City a facial of of a Constitution demands law is whether Co., Publishing Lakewood v. Plain Dealer it to inhibit threatens the exercise of consti 750, 757, 108 100 U.S. S.Ct. tutionally protected rights.” at Id. (1988))). why I does, L.Ed.2d now turn to If stringent S.Ct. 1186. it “a more vagueness. vagueness apply” protect Charlottesville’s curfew is void for should so that test id.; D. see activity ed mil not be chilled. See Goguen, also U.S. Smith eight statutory curfew’s The last of the (1974) (“Where S.Ct. 39 L.Ed.2d exceptions public minor to allows a remain scope, by unaided a narrow during statute’s literal hours when “the minor is ex- curfew interpretation, capable of ercising rights protected court is state First Amendment Constitution, the First as reaching expression sheltered the United States such religion, of Amendment, the free of freedom [vagueness] doctrine de exercise speеch assembly.” and the specificity than in greater degree of mands a 17-7(b)(8). § exception Because this Code contexts.”); Grayned, other conduct, operates protected it in an area (“[W]here vague statute satisfy vagueness must a strict standard so upon areas of basic First sensitive ‘abut[s] as not to chill the exercise freedoms,’ ‘operates inhibit Amendment ” standard, rights. curfew’s Under (second freedoms.’ [those] the exercise “exception” First the or- Amendment makes Button, original)); and third alterations vague. By defining impermissibly dinance (standard is 83 S.Ct. 328 U.S. terms, ambiguous exception vague expression”). of free “strict the area impermissibly persons the ordinance forces point to all the conclusion These factors intelligence guess of normal as to what must evaluated Charlottesville provide illegal conduct and fails to minimal is vagueness under a strict standard. Un guidelines for law enforcement. standard, I would der that hold vagueness of the First Amendment vio exception First Amendment ordinance’s Indeed, exception intuitively plain. is its lan- lates Due Clause. [FN11] Process guage anything but clear. are What simply courts do look FN11. Federal rights”? “First Amendment What is consid- statutory language if to determine “speech”? ered to Does it include written vague. If a law is federal statute expressive What of conduct communication? involved, court construe federal that does not involve oral or commu- written disputed provision to remove types speech “protect- nication? What vagueness. United v. 12 States speech”? ed” Is “freedom commercial Film, Super Reels 8mm. 200-ft. so, speech If protected? what extent? 130 n. religion? What is exercise” of And the “free (1973); cf. L.Ed.2d CISPES assembly”? “right what of Do two Cir.1985) (5th FBI, 468, 473-75 770 F.2d “right” friends have the “assemble” (construing statute federal to avoid over- says nothing meet at a coffeehouse? breadth). Likewise, provi- when a state general rights (e.g., First Amendment face, challenged vague sion is on its association, press, petition) City’s “ any court must limit- federal ‘consider exception ques- unmentioned. leaves ing construction that court or state courts, enough tions are difficult above ” agency proffered.’ enforcement Congress, scholars, constitutional and let Racism, Against v. Rock 491 See Ward legal training. no alone for someone with 795-96, 781, 2746, given, 109 105 And they U.S. S.Ct. answers are are often (1989) imprecise (quoting specifics turn on the L.Ed.2d 661 and of a case Hoffman Estates, 5, balancing many and a factors. of Further- at 494 n. 102 U.S. S.Ct. more, 1186). jurisprudence First Amendment is a narrowing interpretation If no body complicated grows vast and of law state, however, provided by the a federal result, day. with each As a criminal passing power remedy court is “without to by conduct simply cannot be defined refer- by giving constitu- [statute’s] [it] defects (First Amendment) ring to the title or subti- tionally precise Hynes content.” v. See (speech assembly) particular right. tle or of a Oradell, Mayor U.S. of 1755, (1976); 48 L.Ed.2d 243 see S.Ct. Although Supreme Court ad- has not 575, 566, Goguen, 415 also Smith U.S. dressed First Amendment issue before 1242, us, involving its statutes that L.Ed.2d 605 decisions define terms, by referring princi- general to many criminal conduct and turns particular times on of a ples process” of the facts constitutional “due and case. protection” Accordingly, argued body it is that such a “equal are instructive. Like the legal principles of specifici- lacks the basic principles of First Amendment “freedom of ty necessary for criminal statutes under speech” religion,” and the of “free exercise system our government. Congress did process equal protection compli- due punish to define what it desired but concepts cated nuanced constitutional comprehensive referred the to a citizen law susceptible general are not to definition. library in to ascertain order what acts existence of likewise these de- prohibited. were To enforce such a stat- pends specifics case and a of a balanc- sanctioning practice ute would be like show, ing of the interests As I will involved. Caligula law, “published who but it opinions Court’s Screws v. hand, very was written small States, United U.S. corner, posted up in a so that no one could opinion), (plurality L.Ed. 1495 United copy make a of it.” Guest, 753-55, States U.S. Suetonius, (1966), (quoting Id. at 65 S.Ct. 1031 16 L.Ed.2d 239 and later 278). Indeed, Lives the Twelve Caesars cases demonstrate that constitutional “due justices § seven indicated that 20’s use process” “equal protection” are inherent- process” “due to criminal define conduct vague ly to to too be used define criminal unconstitutionally have vague would been сarefully conduct without a defined scienter something mitigate ambig- without else requirement. applies at least as incorporation princi- uous of constitutional much, more, if not force to Charlottesville’s (§ ples. See id. at S.Ct. 1031 mention First Amendment define must be construed with narrow scienter re- by way exception. criminal conduct grave quirement to “avoid upheld In Screws the statute un- 149-50, questions”); id. at 65 S.Ct. 1031 which several der law enforcement officers (“[a]ll (Roberts, J., dissenting) jus- but two” illegally been depriving had convicted of issue). agreed tices on this prisoner process” of his life without “due of plurality concluded that the statute could be law. See 325 S.Ct. 1031. by construing “willfully” require saved prosecuted The defendants under 18 were deprive specific purposefully intent to anoth- § illegal [FN12] U.S.C. “ which made it specific of a federal made definite er ” “ ‘willfully’ deprive any rights, ‘of another express the Constitution terms of privileges, protect- or or immunities secured laws the United the decisions States by ed Constitution and laws the Unit- interpreting 100-05, them. id. at ” ed States’ under the color state law. See Thus, “recognized Screws They argued pro- id. that this the Court expansive language process of due vague impermissibly applied vision was is, judicial provides a basis for review when depriving convictions for the deceased incorporated § gener- into reference process” provided of “due the law ally far different task ill-suited guilt.” “no ascertainable standard of See id. giving warning scope fair of crimi- about 94-95, Douglas, 65 S.Ct. 1031. Justice (unan- Lanier, liability,” nal 117 S.Ct. at 1225 writing four-justice for a plurality, said that decision), imous the use of a but that sufficiently requirement could miti- predeces- § FN12. 18 was scienter U.S.C. infra, gate ambiguity. this § sor to 18 discussed U.S.C. are, sure, the decisions of to the courts in relied on to Court Guest Screws .The ascertaining of a source reference for the reject challenge a to vagueness similar a specific concept pro- of content the due conspiracy deprive for to black prosecution incorpo- But even so Act would cess. the rights protected by Equal citizens of the body large changing rate a again empha- reference Protection Clause. The always specific requirement and uncertain law. That law is not sized the intent rules, § § sрecific expressible to that of reducible 18 U.S.C. like removed as, example, for in rights, vagueness. of constitutional problem of the statute’s See Lanier, the defen- 1170; where 753-54, United States Guest, at id. 383 U.S. (in dant, judge, sexually assaulted his a state (Brennan, J., concurring at office) had and others who employees several provi (incorporation part) in of constitutional Lanier, 117 S.Ct. before him. business danger § “brings 241 close to the line sions far outside conduct lies 1222-23. Such vagueness” “stringent for but being void action, constitutionally protected realm condem requirement saves from [it] scienter §§ 242 do not 241 and have and therefore nation”); also v. Kozmin see United States ap- vagueness standard that meet 931, 941, 108 487 U.S. ski activity protected is involved. plies when (1988) (tension require between L.Ed.2d 788 curfew, however, Consequently, does. The guilt” and standard of “in- ment of “definite a under ordinance must survive large body a eorporat[ion] reference much more strict than vagueness standard evolving potentially law” is resolved federal applied and Guest. Under Screws requirement). with strict scienter light of a and in of the absence that standard Recently, Court in unanimous saving ordi- capable element scienter principles reiterated established Lanier nance, Ffrst Amend- I would hold that the again and The Court rec- Screws Guest. void exception and the ordinance are ment describing specific ognized that “in lieu of vagueness. [FN13] forbids, general [of it terms [the] conduct majority misses the mark FN13. incorporate §§ 241 242] and says requirement that a scienter when is that law reference.... The result expand, and nar- necessarily not would many row, good the statutes nor a of their cur- neither the breadth of Charlottesville’s (b)(8) “provides range few because subsection constitutional referents delineate exception liability” and not from does particularity.” conduct of forbidden Id. affirmatively criminal conduct. define Consequently, “affront to at 1224. curfew ante at 853 n. *. The ordi- See process] requirement” of fair notice is [due (b) eight its ex- nance uses section permissible only “willful made when viola- illegal. ceptions to what conduct define (or deprive conspire deprive) tors” others 7(b). respect § Code With See 17— specific’ by fights that “have ‘made been (b)(8) рarticular, the or- to subsection interpretations.” the text or settled See id. it a crime for minors to dinance makes Screws, (quoting at 1225 public exercising not remain 1031). ‘certainly “[W]illfulviolators rights. §id. 17- Ffrst Amendment say they no position in no had ade- (b)(8) (b)(8). 7(b), plain- thus Subsection quate notice’” advance of the definition of incorporates Ffrst ly Amendment Screws, (quoting crime. Id. 325 U.S. at scope of criminal conduct. define 1031). 105, 65 S.Ct. law is drafted include Even when a Screws, Guest, Like the statutes in crime, defining exceptions in scien- Lanier, curfew’s First the Charlottesville applied to the crimi- ter element that is exception incorporates large Amendment (and just provision nal as a whole body of growing law that is not reducible objectionable exceptions) can reduce the specific balancing on a rules that turn vagueness of the law. of numerous factors. Unlike the federal testimony Chief of of Charlottesville’s however, statutes, City’s ordi- ambiguity. proves the statute’s When Police requirement no nance has scienter could fifteen-year-olds violate asked whether two mitigate vagueness the inherent of Ffrst by discussing politics in a cof- the ordinance jurisprudence. important, Most Amendment curfew, said, shop during the Chief fee though, regulates the curfew areas involv- location, indoors, ... public I “You’re it’s constitutionally activity, protected while technically under the ordinance it think fact, §§ 241 242 do those not. sec- we a violation. I doubt whether would designed punish Similarly, those who will- when asked if tions are with it.” deal in a band local fifteen-year-old plays who a fully deprive conspire deprive to others grounds”). hours stitutional on substantive restaurant after curfew violates the muster “[Legislative draftsmanship obvi- paid for bodies perfor- not curfew when he is ously difficulty have same as do answered, mance, “I think that the Chief judicial in interpretation. Nevertheless de- technically possibl[y] minor] viola- [the difficulties, spite the courts must do their tion of the ordinance.” “the officer vague- to or not the best determine whether obviously to make a would have decision is of a ‘that ness such character men they’re in violation about or not. whether necessarily intelligence guess common must IAnd there’s some discretion al- believe ” York, meaning.’ at its v. New Wintеrs lowed.” It is this discretion combined with 507, 518, 665, 92 U.S. L.Ed. 840 specificity with to define what failure (1948); Kingsley see Int’l also Pictures illegal conduct is that makes the statute un- Univ., Corp. Regents 360 U.S. danger of chilling constitutional. 3 L.Ed.2d 1512 constitutionally protected activity exercise (Frankfurter, J., concurring).. Although we uncertainty arises associated may “appreciate of drafting the difficulties exception. with the First Amendment laws,” require precise must that all stat- we [FN14] for utes meet constitutional standards clari- FN14.. It is of no constitutional conse- Hill, City ty. See Houston v. 482 U.S. quence “if that the Chief testified that 96 L.Ed.2d question to [as there’s whether otherwise, forgo If we would did we exception First applied,] Amendment we duty our enforce the mandates the Due go side would down that it was [FN15] Process Clause. activity” valid kind of Constitutional disagree majori- FN15. I with the also “would consult with the Commonwealth ty’s claim that the First Amendment city attorney’s Attorney or the office “fortifies, exception than rather weak- see or not.” whether was “Well-inten- ens, First Amendment values.” See judicial prosecutors tioned safe- First ante 853-54. Because Amend- guards do neutralize vice of ment can never be diminished Const, vague Baggett, ordinance, VI, city law.” 377 U.S. at art. see City’s exception nothing el. does S.Ct. 1316. but restate a well-settled constitutional majority supporting errs its rea- regulatory restriction on its substantive soning city appear with fact that councils Indeed, authority. majority’s cita- placed “between rock and a hard FBI, tion to 770 F.2d 468 CISPES place,” 853-54. it is ante at While true (5th Cir.1985), position. contradicts its exceptions curfews without will almost al- recognized ante Cf. at 853-54. CISPES ways infringe upon impermissibly substan- provision that “such a cannot substan- rights and tive constitutional that curfews tively operate to save otherwise inval- subject exceptions may to vagueness id 770 F.2d at 474. A statute.” See challenges, of this invalidation ordinance is First statement similar Amend- still our Constitution. mandated “Our case, however, exception in this ment designed Constitution is individ- maximize Fifth was used Circuit deter- ual freedoms within a framework of ordered guide Congressional mine intent and liberty. Statutory limitations on those free- provision to avoid construction of the authority doms are for substantive examined Here, id. substantial overbreadth. as well as content definiteness local, though, with a not a we аre faced Kolender, certainty expression.” federal, statute, and therefore we added); (emphasis see provide a limit- without the Diego, also Nunez v. San F.3d might construction that save the or- (9th Cir.1997) (recognizing 943-44 Hynes, 425 U.S. at dinance. See vagueness interpreting prob- curfew to avoid The First Amendment ex- S.Ct. 1755. “may ception lems under Due Process Clause make to advance First thus does little to pass it more difficult for the statute con- values. Amendment

539 S.E.2d 478 conclusion, logical majori- Taken ROBERTS; Steven M. Deborah S. Rob ty’s reasoning would immunize all statutes erts, Wife; His and Jennifer M. Roberts regulating involving conduct the exercise of Roberts, Jr., and Steven Michael His rights they First Amendment whenever con- Children, Below, Appellants, Plaintiffs “exception.” tain First Amendment Be- provisions impermis- cause such would not be sibly vague majority’s analysis, under the COMPANY, CONSOLIDATION COAL A statutes would be from immune both sub- Corporation; Delaware and the Hem vagueness challenges. stantive and Substan- Corporation, Corpo scheidt A New York cannot,

tively according the statute to its own ration; Through and John Does One terms, fact, violate the constitution. In Ten, Below, Appellees. Defendants incorporates protections. the Constitution’s No. 26850. upshot is that facial attacks could never brought containing and that statutes these Supreme Appeals Court of exceptions challenged only they could be Virginia. West applied. squarely conflicts with the longstanding Court’s concern with Submitted June potential constitutionally protect- chill of July Decided activity ed created the mere existence of vague potential criminal statutes and the arbitrary enforcement. reasons,

For I these would hold that the “exception” curfew’s First Amendment ren- impermissibly vague ders the ordinance its face. Until the ordinance is amended given Council or a construction sufficiently

state courts that reduces its un- vagueness, its enforcement conflicts with guarantee the constitutional process of

due law.

IV. sum, equal protection I would hold that challenges by regulate minors to laws the area of fundamental must be sub- ject scrutiny. opinion to strict In my

Charlottesville ordinance fails this standard. Even if the equal ordinance survived the however, protection challenge, it would be present ‍‌​‌‌​‌​‌​‌‌‌​‌​​‌​​​‌‌‌‌​‌‌‌​‌​‌‌​​‌‌‌‌​‌‌​‌‌‌‌‌‍unconstitutional in its form. The exception curfew’s First Amendment is im- permissibly vague in violation of the Due reasons,

Process Clause. For these I re- spectfully dissent.

Case Details

Case Name: Sale Ex Rel. Sale v. Goldman

Court Name: West Virginia Supreme Court

Date Published: Jul 20, 2000

Citation: 539 S.E.2d 446

Docket Number: 27315

Court Abbreviation: W. Va.