IN 'I`HE SUPREME COUR'I` OF THE STA'I`E OF I})AH()
l)ocket No. 36606
STATE OF IDAI~I(), )
) .
Plaintiff_~}.`{espondent, ) Bolse, February 2010 Term
v g 2010 Opinion No. 37
) - .
JOHN DOE’ ) Flled. Mareh 26, 2010
)
Defendant_Appellant_ ) Stephen W. Kenyon, Clerk
)
Appeal from the District Court of the Fifth Judicial District of the State of ldaho,
Gooding County. Honorable Barry Wood, District Judge; Honora‘ole Marl< A.
Ingram, Magistrate Judge.
District court’s affirmance of the magistrate court’s decision, is afiirmed.
Capitol Law Group, PLLC, Boise, for appellant David A. Heida argued
Honorable Lawrence G. Wasden, Attorney Gerreral, Boise, for respondent.
Kenneth K. jorgensen argued
J. IONES, Justice.
John Doe appeals the district court’s holding that Wendell City Ordinance No. 442 is not
facially unconstitutional We afilrm.
I.
Facts and Procedural History
john Doe, a miuor, was a passenger in a vehicle stopped at l:30 a.m. for a traffic
violation Doe was supposed to be staying at a friend’s house, but sneald at 71 i.
6
constitutional power of the Government; [2] it furthers an important or substantial governmental
interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4]
the incidental restriction on alleged First Amendrnent freedoms is no greater than is essential to
the furtherance of that interest." Um'red Staz‘es v. O’Brien, 39l U.S. 367, 376~7’7 (1968). When a
government regulation satisfies the O’Brien test, it constitutes a reasonable time, place, and
manner restriction and wili not be invalidated for its incidental effects on protected conduct
Taxpayers for Vincenr, 466 U.S. at 808. The Ordinance will be analyzed according to the ~ -- -
O 'Brz'en test.
a.
The City of Wendell is empowered to enact ordinances by article XII, section 2 of the
idaho Constitution. Under that provision, "[a]ny county or incorporated city or town may make
and enforce, within its limits, ali such local police, sanitary and other regulations as are not in
conflict with its charter or with the general law." idaho Const. art. XII, § 2. This Court has found
that there are three general restrictions that must be met by an ordinance enacted under this
provision: (l) it must be confined to the territorial limits of the enacting body; (2) it must not
conflict with the general laws of the State; and (3) it must not be an unreasonable or arbitrary
enactment. Hobbs v. Abrams, 104 idaho 205, 207, 657 P.Zd 1973, 1075 (1983).
fn this case, Doe does not argue, nor does the Ordinance indicate, that it extends beyond
the territorial limits of the City of Wendell. In fact, the plain language of the Ordinance provides
that it is only in effect in the city. In addition, Doe has pointed to no other laws of the State of
Idaho that conflict with the Ordinance. in fact, juvenile curfew ordinances are specifically
contemplated by legislative enactment idaho Code section 32~13()1 empowers municipalities to
impose criminal sanctions on parents for failure to supervise their chiidren. l.C. § 32~1301.
Section 32~1301(2)(0) provides that a parent automatically commits the offense of failure to
supervise a child under sixteen if that child violates a curfew ordinance enacted under locai iaw.
I.C. § 32-1361. This provision indicates that the City of Wendell not only has the power to enact
curfew ordinances, but is expected to do so by the legislature
Doe has in fact recognized that municipalities have a legitimate interest in enacting a
juvenile curfew ordinance in order to promote the safety and welfare of their citizens and prevent
juvenile criminal activity and victimization. Doe’s chalienge to the Ordinance is focused on the
fact that it does not provide exceptions for protected conduct that may fall within its ainbit. This,
without more, is insufficient to show that the Ordinance is unreasonable or arbitrary As such, the
Ordinance is a valid enactment within the power of the City of Wendell, meeting the first prong
of the O ’Brz'en test.
b.
l\/Iunicipalities have a substantial interest in preventing juvenile crime and victimization.
See, e.g., Nunez ex rel. Nunez v. City of.$'an Diego, lift F.3d 935, 947 (9th Cir. 1997); Srczre v.
` J.`P., 907 So.2d ll{}l, lllS (Fla. 2004). There has been no showing that the Grdinance does not
further those interests. Also, as pointed out in Doe’s brief, the U.S. Supreme Court has
recognized that the physical and psychological well~being of minors is a compelling government
interest See Sable Commc’ns v. Feci. Commc’n Comm’n, 492 U.S. ll$, 126 (3989). While the
stated purpose of the Ordinance is not specific to these particular interests, such interests are
encompassed within its stated purpose, which is to promote the welfare and safety of the public.3
'l`here is no requirement that a substantial interest sufficient to support the constitutionality or
validity of an ordinance must appear on the face of the enactment Consequently, the Ordinance
serves a substantial government interest.
c.
A ban on the means of expression is not a suppression of the expression itself for the
purpose of the O ’Brien standard Cz'ly ofErz`e v. Pap ’s A.M, 529 U.S. 277, 292 (2000). in Pcip’s
A.]l/[., the U.S. Supreme Court found that a ban on public nudity, even though likely directed at
nude dancing, had a valid, content-neutral purpose in prohibiting the secondary effects of nude
dancing. Id. at 29l The purpose was content neutral, despite the fact that nude dancing is a
protected form of expression Id. The Court found that the ban was not directed at expression
because it harmed all public nudity, not simply nude dancing [d.
Although the Ordinance is quite different from the nudity ban in Pap ’s A.M , the rationale
behind them is the sarne. 'l`he Ordinance bans all juveniles from being in public between the
hours of 11:00 p.m. to 5:0() a.rn., unless they fall within one of the exceptions to the statute
While this curfew may have the practical effect of preventing certain forms of expression during
curfew hours, the Ordinance, much like the ban in Pap’s A.M'., cannot be said to directly target
that expression because it is targeted at all juvenile activity, both protected and nonprotected. As
3 One of the stated purposes of the Ordinance is “to provide order and promote the safety and welfare of the
residents of the City of Wendell, Idalto."
such, the government interest in keeping juveniles off the streets is likewise unrelated to the
suppression of expression.
d.
Where a restriction incidentally impacts protected conduct rather than speech, and the
restriction is content neutral, there is no requirement that the restriction be enacted through the
least restrictive means. Id. at 3()1-02. However, the restriction must be no greater than necessary
to carry out the governmental interest Id. at 301. In conducting the subjective inquiry into
whether the Ordinance meets that requirernent, it is instructive to view other cases where the
U.S. Supreme Court has applied the O ’Brien test, as well as cases from other jurisdictions where
the test has been applied to curfew ordinances similar to the one in this case.
in Pap ’s A.M, the Court found that the ban on appearing nude in public was no greater
than necessary to carry out the city’s interest in preventing the harmful secondary effects of
public nudity because it only regulated conduct and had a de minimis effect on the dancers’
ability to convey their erotic message because they were still allowed to dance in minimal attire.
Id. at 301. A similar result was reached in Gmyned v. Ciljy ofRoc/g"ord, where the Court upheld a
city anti-noise ordinance that prohibited a person from willfully making a noise or diversion that
disturbs or tends to disturb the peace or good order of the school session while on grounds
adjacent to a building in which a school was in session 408 U.S. 104, 110~»~12 (1972). The
Court’s holding was based on the city’s important interest in preventing the disruption of school
activities Id. at ll$-el 9. The Court found that even though the ordinance prohibited speech, it
only prohibited speech necessary to preserve the integrity of the educational environment by
tirniting the prohibition to "conduct which disrupts or is about to disrupt nonnal school
activities." Id. at il9. The same result was reached in Clark v. Communz'zy for Creative Non-
Vic)lence, where the Court found that the incidental impact of a public park’s overnight sleeping
ban on a planned demonstration did not render the statute overbroad 468 U.S. 288, 296-97
(¥984) ("it is also apparent to us that the regulation narrowly focuses on the Governrnent's
substantial interest in maintaining the parks . . . . The sleeping ban, if enforced, would thus
effectively limit the nature, extent, and duration of the demonstration and to that extent ease the
pressure on the parks . . . {I]t is evident from our cases that the validity of this regulation need
not be judged solely by reference to the demonstration at hand.").é
The Suprerne Court invalidated a local ordinance regulating the screening of drive-in
movies on overbreadth grounds in Erznoznik v. Citj) of .]ac/\:sonvz`lle. 422 U.S. 205, 213 (1975).
ln that case, a local ordinance banned the screening of drive-in movies within view of a public
street or area if the movie contained nudity. Id. at 206-07. The stated interest behind the
ordinance was to protect minors from public displays of nudity. Id. at 207. The Court found the
ordinance was not limited to that interest because it prohibited the display of all nudity and not
simply sexually explicit or obscene nudity and noted that the First Ainendment did not allow the
limitation of information to minors in that manner. Id. at 2l3. Apart from Erznoznik, however, it
is difficult to find cases where the Court has invalidated statutes and ordinances that do not have
speech~content regulation as their purpose 'l`his is explained by the Court’s statements in Texas
v. johnson concerning the "reiatively lenient" or "less dernanding" standards of review under the
O’Brien test. 491 U.S. 397, 407 (l989).5 Consequently, given this statement, it appears that the
Ordinance must be substantially far afield from its stated purpose in order to be invalid under
O’Brz'en.
'l`he fifth Circuit Court of Appeals invalidated a curfew ordinance on overbreadth
grounds in johnson v. Ct`ly of Opelousas. 658 F.Zd 1065, l07l-»74 (Sth Cir. 1981). In that case,
an ordinance substantially similar to the ordinance at issue here was declared unconstitutionally
overbroad because the ordinance had a substantial effect on a number of constitutionally
protected activities Id. However, a few characteristics of johnson should be noted to determine
its persuasive authority First, although sirnilar, the ordinance in johnson did not allow parents or
other child custodians to authorize a child’s presence in public after hours with a perrnission slip
or some similar documentation Id. at 1071. Second, the court in johnson used some amalgam of
the O’Brien test, neither specifically analyzing all of its factors nor focusing on the state’s
interest in enforcing the ordinance Io.'. at 1071-74. P`inally, the court impermissibly considered
the right to interstate travel as part of the overbreadth balancing even though overbreadth is
4 The holding of Clark also disposes of one of the elements of time, place, and manner review, not dealt with by
0 ’Brz`en`, which is a requirement that the regulation leave open alternative channels of communication. Doe argues
that, because the Ordinaitce prohibits all juvenile speech for one~quarter of the day, it fails to meet this requirement
This argument is foreclosed by the rationale of Clark in which the Court found a complete nighttime ban on
conduct, which prohibited expressive conduct, left open alternative channels of communication. Id. at 293.
5 The Court makes sinu'lar comments about the review of time, place, and manner restrictions, noting that the tests
are essentially one and the same. Id.
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limited to speech concerns [d.é
Sirnilar infirmities are presented by the anaiysis in Nunez. in that case, the Ninth Circuit
found a San Diego juvenile curfew ordinance invalid on several grounds, including overbreadth
114 F.3d at 949-51. The ordinance was also similar to the one at issue here, the key difference
being the "legitiniate business” exception of the Ordinance, which was not included in the San
Diego ordinance Id. at 938. Y`urther, although the Ninth Circuit articulates the factors of the
O’Brierz test, it does not apply O ’Brz'en. Id. at 949-51. The court simply declares the ordinance
unconstitutionally overbroad because of its findings that the ordinance restricts any and all
access to a public forum Id. at 951. in fact, it seems that the Ninth Circnit’s finding of
overbreadth is based on a finding that the ordinance was directed at expression rather than
having an incidental effect on expression that is broader than necessary in order to carry out the
governmental interest in question. See z'd. ("[T]he San Diego ordinance ‘is directed narrowiy and
specifically at expression or conduct commonly associated with expression."’). This finding
seems contradictory to the obvious and stated purpose of such an ordinance, to keep children off
the street at night for their own well~being and for the health and safety of the populous at large
There is no indication from the evidence considered in the Nnnez opinion that the San Diego City
Council had the prevention of juvenile speech in mind when it enacted its ordinance
Accordingly, the Nnnez opinion is of questionable persuasive value, despite Doe’s extensive
reliance on it.
The Ordinance does not reach an amount of conduct that is greater than necessary to
further the City of Wendell’s interests As noted above, the City of Wendell has an interest in the
physical and psychological weli~heing of rninors, which is a compelling government interest, and
the Ordinance appears to further that interest.7 Further, the City has a compelling interest in
ensuring the health and safety of its citizens The Ordinance, as opposed to those presented in
Nanez and .fohnson, contains a provision allowing a child to be in public without the presence of
a parent or custodian so long as the child has some form of documented authorization Doe has
6 This iirnitation was recognized by the Ninth Circuit in Nunez. 114 l?`.$d at 949 n.ll (citing Um`i‘ed States v. Salerno,
481 U.S. 739, 745 (1987)).
? The U.S. Supreme Court has afsc noted that where the following three factors are in play, the analysis of the
constitutional rights of minors may not be as stringent as the analysis of the constitutional rights of adults Bellotri v.
Baird, 443 U.S. 622, 634 (1979). The factors include: (l) the pecuiiar vulnerabiiity of children; (2) their inability to
make critical decisions in an infonned, mature manner; and (3) the importance of the parental role in child rearing.
Id.
ll
not shown that this authorization would not allow children to assert their First Amendinent
rights. Doe has also failed to show that the Ordinance would reach constitutionally protected
conduct in a substantial portion of the cases where it would apply in many instances, a juvenile
cited under the Ordinance, like Doe, would he out iool<:ing for a party or engaging in some other
nonprotected activity, which is clearly prohibited.
Y`urthennore, although Doe argues that the Ordinance must have a First Ameiidment
exception, given the U.S. Supreme Court’s statements concerning the laxity of the O’Brz'en test,
the Ordinance does not have to be enacted through the least restrictive means necessary to
further the compelling governmental interest Although an ordinance rnay prohibit some forms of
First Amendment expression, that prohibition is insufficient to render it unconstitutionally
overbroad The Ordinance seeks to keep children off the streets during the late hours of the night,
presumably to allow increased parental supervision and to prevent juvenile crime and other
dangers the juvenile may encounter. Allowing too many exceptions to the Ordinance, even
though allowing greater freedom to exercise protected rights, would potentially undermine the
purpose of the Ordinance. Accordingiy, the Ordinance is not overbroad in relation to the interest
it furthers
In addition, the Ordinance vests parents with the right to control whether their children
engage in protected conduct through the authorized legitimate business or emergency errand
exception The exception allows a parent to authorize a child to engage in virtually any legal
activity, so long as the authorization is documented in some form. As such, the limitation on
conduct largely comes from the parent rather than a state actor, meaning that any burden on
protected rights are derived from an unchaliengeable source Finally, Doe’s arguments for
overbreadth are largely based on a few hypotheticals without any actual showing of infringement
of rights or the danger of infringement of rights. As this Court noted in Korsen, showing some
hypothetical situation where First Amendrnent rights could be infringed is insufficient support
for an overbreadth argument As such, we find that the Ordinance does not impact more conduct
than necessary to carry out its purpose
e.
Because the Ordinance satisfies all prongs of the O’Brz'en test, it is a reasonable time,
place, and manner restriction under Pap’s A.M in addition, Doe has failed to show that it
impacts a substantial amount of protected conduct. As a result, we find that the Ordinance is not
12
unconstitutionally overbroad
el
Vagueness
in order to comply with due process, a criminal statute must define behavior that
constitutes a violation of that statute “with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Another concern
articulated by the Supreme Court is that "where a vague statute ‘abut(s) upon sensitive areas of
basic First Amendment i`reedoms,"’ it may chill the exercise of constitutionally protected
activity Gruyned, 408 U.S. at lO9 (quoting Bagge),‘t v. Bullitt, 377 U.S. 36(), 372 (1964)). The
Court has recognized that the more important concern is the provision of concrete guidelines to
police officers and prosecutors in order to avoid arbitrary and discriminatory enforcement of
penal laws. Id. The Court notes that "lawmaking [should not be entrusted] ‘to the moment-to~
moment judgment of the policeman on his beat."’ Kolender', 461 U.S. at 360 (quoting Smith v.
Goguen, 4 l 5 U.S. 566, 575 (1974)). Where it is clear what an ordinance prohibits, "mathematical
certainty" or "meticulous speciiicity” of language is not required, allowing for "tlexibility and
reasonable breadth.” Grayned, 408 U.S. at llO.
'l`o succeed on a facial vagueness challenge, the challenged ordinance must he shown to
be "impermissibly vague in all its applications." Hojj”rnan E.s'tates, 455 U.S. at 49’7. if the law
interferes with the rights of speech or association, a more stringent vagueness test should be
applied Id. at 499. The test for vagueness is also more stringent in a case where criminal
sanctions are imposed for violation of the ordinance Id. at 500. We previously adopted a similar
standard in Korsen, noting that "in a facial challenge to a legislative enactment [on vagueness
grounds], ‘the challenger must establish that no set of circumstances exists under which the Act
would be valiant 13a idaho a 712, 69 aaa ii 132 (qa@ring sara»n@, 4a1 u.s. a 745).9
3 The Korsen standard, although adopted from Hoyj"man Estares, seems directly contradictory to the statement in
Hojj'”man Estcztes that a facial challenge cannot succeed where the party bringing the challenge engaged in conduct
clearly proscribed by the ordinance. 455 U.S. at 494»~95. Construing the two statements together, a facial challenge
could never succeed where the party bringing the challenge has been charged under the statute and cannot make an
as applied challenge. U:ider that standard, no facial challenge could succeed in this case.
9 in holding that the trespassing statute in Korsen was not unconstitutionally vague, this Court noted:
The statute makes no distinction between private and public property Furthermore, the statute
informs the public of the prohibited conduct, that is, remaining willfully on property belonging to
another after having been asked to leave. Therefore, the statute gives fair notice of the conduct that
13
Doe argues that the U.S. Supreme Court’s decision in Papachrisz.‘ou v. Ciry of
Joclcs'onville, 405 U.S. l56 (1972), is controlling because the Court found language similar to
that used in the Ordinance to be unconstitutionally vague Papachrz`srou and other similar cases
are distinguishable from the case at bar. The ordinance in Papachrisrou was based upon a class
of old English vagrancy ordinances that criminalized activities such as "wandering or strolling
around from place to place without any lawful purpose or object." Id. at 158.1° The Court
declared the statute invalid because, based on the huge class of undefined offenses and classes of
persons subject to arrest under the statute, it allowed the police virtually unfettered discretion to
arrest anyone in any situation. Id. at 170. The Court noted "[i]t would certainly be dangerous if
the legislature could set a net large enough to catch all possible offenders, and leave it to the
courts to step inside and say who could be rightfully detained, and who should be set at large."
Id. at 165 (quoting Unz`red Sfaz‘es v. Reese, 92 U.S. 214, 22l (1875)).
The Court reached a similar result in Kolender, where it invalidated a Califoriiia loitering
statute 461 U.S. at 353. In that case, the statute provided that anyone "who loiters or wanders
upon the streets or from place to place without apparent reason . . . and who refuses to identify
himself . . . when requested by any peace officer to do so, if the surrounding circumstances are
such as to indicate to a reasonable man that the public safety demands such identification," may
be arrested Id. at 354. The statute was subject to a limiting construction by the California Court
of Appeals, which noted that identification meant that an individual had to provide “‘credible
is made criminal by the statute. Siniilarly, the core of circumstances to which the trespassing
provision unquestionably applies is the willful refusal to leave the premises after having been
asked to do so by one in authority The statute does not allow for unbridled discretion in police
ent`orcement. Indeed, the police have no discretion when enforcing the statute on any type of
property; any person who refuses to leave after receiving a warning is subject to arrest
Ia’. at 713, 69 93d at 133.
m The ordinance at issue in Papachristou read as follows:
Rogues and vagabonds, or dissolute persons who go about begging, common garnblers, persons
who use juggling cr unlawful games or plays, connnon drunlcards, common night wallcers, thieves,
pilferers or picl