(Special Concurrence).
{32} I am in agreement with the majority opinion that the STOP program is inconsistent with the Children’s Code. However, I have quite a bit of difficulty, with the preemption rationale which forms the basis for the proposed opinion. I believe that the Children’s Shelter Care Act, NMSA 1978, §§ 32A-9-1 to 7 (1993) does not preempt the curfew, since its purpose is to find shelter for children who have been detained in secured facilities on charges for acts that would not be crimes if committed by adults. While this may cover the field of juveniles who have been incarcerated, it does not deal with the exact problem of the arrest of the juvenile in the first place, which is the situation engendered by the curfew. Similarly, as to the Family In Need of Court Ordered Services Article, I believe the majority opinion is correct in likening the violation of curfew to truancy and running away rather than a crime, but these are the subjects of the article, not curfew. Finally, I believe logic demands that it be conceded to the City that the Delinquency Act, NMSA 1978, § 32A-2-1 et seq. covers the field of those acts, committed by children which would be designated as crimes if committed by adult, which does not include violation of curfew, that such violations are not delinquent acts, and that the Act therefore does not preempt the field of acts which are crimes if committed by children but not by adults. I do not believe the spirit of the Act extends so far as to say that it preempts the City from criminalizing behavior by minors which is not unlawful if committed by adults.
{33} I would offer an alternative approach to that taken in the majority opinion. That is, I would address the issue on constitutional grounds. The analysis used by many courts begins with the proposition that the United States Supreme Court “has extolled the right to move about freely, not only as a necessary means to the exercise of other protected activities, but also as an end in itself.” Note, Assessing the Scope of Minors’ Fundamental Rights: Curfews and the Constitution, 97 Harvard L.Rev. 1163, 1174-75 (1984) (Note) citing Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).
Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it makes all other rights meaningful — knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.
Aptheker v. Secretary of State, 378 U.S. 500, 520, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). The freedom of movement encompasses all artificial barriers to personal mobility. Note at 1174 citing Laurence Tribe, American Constitutional Law § 15-15 at 953-58 and n. 20 (1978). See also Tribe, § 15-14 at 1382-82 & n 23 (2d ed.1988). Government restrictions that inhibit the fundamental rights of minors are valid only if the restrictions serve a “significant state interest ... that is not present in the case of an adult.” Planned Parenthood v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) The test is less rigorous than the compelling state interest test applied to restrictions on the fundamental rights of adults, Carey v. Population Serv. Int’l, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and the test that is usually used is drawn from Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). See Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. 1981); Gaffney v. City of Allentown, 1997 WL 597989 *4 (E.D.Pa.); In re Spagnoletti, 122 Ohio App.3d 683, 702 N.E.2d 917, 919 (1997); State v. J.D., 86 Wash.App. 501, 937 P.2d 630, 634 (1997); Matter of Appeal in Maricopa County, 181 Ariz. 69, 887 P.2d 599 (Ariz.App.1994). Under Bellotti, there are three factors in determining whether a significant state interest exists: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child-rearing.”
{34} There is heated debate among the cases in the application of the three factors to curfews. The majority seem to hold, as to the first factor, that the lack of evidence, as in this case, that minors tend to be the victims of nighttime crimes more than others belies the position that they are peculiarly vulnerable in the case of a curfew. Johnson, 658 F.2d at 1073; Gaffney at *4; Hutchins v. District of Columbia, 942 F.Supp. 665, 673 (D.D.C.1996); J.D., 937 P.2d at 634. But see Maricopa County, 887 P.2d at 606 (plague of crime and drugs, “while not peculiar to minors, is more damaging to them because they are more vulnerable”). As to the second factor, Bellotti concerned a.minor’s right to an abortion, and it was said by the court in Gaffney at *4 “ ‘that the decision to either stay inside or roam at night simply does not present the type of profound decision which Bellotti would leave to the state.’ ” Quoting Waters v. Barry, 711 F.Supp. 1125, 1137 (D.D.C.1989).
{35} The third Bellotti factor not only demonstrates that there is a fundamental right at stake, but is also a substantive basis for holding the curfew unconstitutional. “A long line of cases has established the Court’s view that child-rearing is the role of parents, not impersonal political institutions.” Note at 1178. In McCollester v. City of Keene, 586 F.Supp. 1381, 1386 (D.N.H.1984), it was held a curfew worked unconstitutionally “by usurping parental discretion in supervising a child’s activities and imposing parental liability even where the parent exercised reasonable control or supervision in authorizing a child’s activities which violate the ordinance.” The right to rear children without undue governmental interference is a fundamental component of due process, Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and “[f]amily autonomy is as much a right of children as of their parents.” Note at 1179. Custody, care, and nurture reside first in parents, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), though the right is not absolute and is subject to reasonable regulation and compelling state interests. Runyon v. McCrary, 427 U.S. 160, 178, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). The ordinance in Qutb v. Strauss, 11 F.3d 488, 496 (5th Cir. 1993), apparently used as a model for the Albuquerque ordinance, contained broad exemptions allowing parents to make decisions in many areas, a feature missing from the present ordinance (containing exceptions for being accompanied by or on an errand “without any detour or stop” at the direction of a parent or guardian), which is overbroad because it “‘does not aim at evils within the allowable area of [government] control but ... sweeps within its ambit other activities that in ordinary circumstances constitute an exercise’ of protected expression or associational rights.” Johnson at 1071, quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
{36} Thus, because the curfew burdens fundamental rights, it must be narrowly tailored to serve compelling state interests. Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The instant ordinance is purportedly narrowly drawn because a defense to violation is that the defendant was “[e]xercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech, and the right of assembly.” Alb. City Ords., § 12-5-9(D)(l)(h). While this may be a way around overbreadth on First Amendment grounds, this ordinance is impermissibly vague, as I believe is intuitively obvious. The Court of Appeals said in Old Abe Co. v. New Mexico Mining Comm’n, 121 N.M. 83, 91, 908 P.2d 776 (Ct.App.1995):
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not dearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, [408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ]
{37} Under a curfew with such wording, “what are First Amendment rights? What is considered to be free speech? ... WTiat of expressive conduct that does not. involve oral or written communication? ... "What types of speech are protected by ‘free speech’? ... And what of the ‘right of assembly? Do two friends have the right to assemble at a coffeehouse?” Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843, 871 (4th Cir.1998) (Michael, J, dissenting). These questions are
difficult enough for courts, Congress, and constitutional scholars, let alone for someone with no legal training. And when the answers are given, they are often imprecise and turn on the specifics of a case and a balancing of many factors. Furthermore, First Amendment jurisprudence is a vast and complicated body of law that grows with each passing day. As a result, criminal conduct cannot be defined by simply referring to the title (First Amendment) or subtitle (speech or assembly) of a particular right.
Id. But see Ramos v. Town of Vernon, 1999 WL 304694 *5-*7 (D.Conn.) (ordinance not vague despite “First Amendment exception” not describing or identifying specific rights; no chilling effect; no basis for excessive police interpretive discretion); Qutb at 494 (noting First Amendment exception to curfew ordinance).
{38} In sum, I believe this ordinance is both overbroad in the encroachment on parental rights, and vague in the attempt to define conduct by generalized reference to the First Amendment.