Appeal from Superior Court of Whatcom County. Docket No: 93-8-00795-5. Date filed: 05/17/95. Judge signing: Hon. David S. Nichols.
Authored by Susan R. Agid. Concurring: Ronald E. Cox, H. Joseph Coleman.
The opinion of the court was delivered by: Agid
AGID, J. -- J.D. appeals his conviction for resisting arrest. He admits that he ran from an officer who tried to cite him for violating the Bellingham curfew, BMC 10.62, but argues that he was entitled to passively resist the citation because the curfew is unconstitutional. The State moved to dismiss J.D.'s conviction under RAP 7.2(e). We grant the State's motion and dismiss J.D.'s conviction. In so doing, we render the appeal moot. We conclude, however, that the constitutional issues it presents fall into that narrow category of moot cases requiring review and reach the merits of J.D.'s appeal. We hold that the Bellingham curfew ordinance in effect when J.D. was arrested, and as later amended, infringes on minors' fundamental freedom of movement and expression and it is not narrowly tailored to address the problem of juvenile crime. We also hold that it is unconstitutionally vague.
In 1992, the City of Bellingham enacted a youth curfew in an attempt to curb increasing crime in the central business district (CBD). The City Council found that the area was "a magnet for juvenile gatherings," that drugs and alcohol were common at the gatherings, and that assaults and disorderly conduct were increasing as a result. Under the law, minors 15 years old or younger are prohibited from being in any public area of the CBD between 10 p.m. and 5 a.m. Sunday through Thursday and 11 p.m. to 5 a.m. Friday and Saturday. BMC 10.62.030(A). *fn1 The ordinance exempts minors in the company of a guardian, on an emergency errand, working, in a vehicle engaged in interstate travel, within one block of legal residence, traveling from an "activity," or authorized by special permit. BMC 10.62.030(C). As first enacted, the ordinance contained a "stop and identify" clause which allowed officers to stop any person who they believed to be in violation of the curfew and ask for identification. This section has since been repealed. See BMC 10.62. *fn2
Bellingham Officers Sasaki and Johnson contacted 15-year-old J.D. at 12:45 a.m. on November 6, 1993, under the stop and identify provision, intending to cite him for a curfew violation. The officers had seen J.D. several times that night and warned him that he would be cited if he refused to leave the CBD. J.D. walked away from the officers as they approached him and eventually began to run. Sasaki caught J.D., knocked him to the ground and arrested him. Sasaki broke J.D.'s arm during the arrest, and he had emergency surgery the following day. The State eventually charged J.D. with resisting arrest under RCW 9A.76.040. A superior court commissioner found that the Bellingham curfew was unconstitutional and dismissed the resisting arrest charges. The State moved for reconsideration and a superior court Judge reinstated the charges, finding that the officers were acting in good faith. *fn3
After the notice of appeal was filed, the State moved in this court to enter a trial court decision dismissing the charges under RAP 7.2(e). It argued that the appeal would require a great deal of time and money and would not be worth the resources because this was a relatively minor case. We grant the State's motion. While the dismissal makes the case technically moot, review is still appropriate under the mootness doctrine.
We will ordinarily not review a moot case unless it presents issues of continuing public interest or we determine that a decision on the merits is appropriate, considering "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur." In re Swanson, 115 Wash. 2d 21, 24, 793 P.2d 962, 804 P.2d 1 (1990) (quoting Dunner v. McLaughlin, 100 Wash. 2d 832, 838, 676 P.2d 444 (1984)). This case meets both tests. Many Washington communities are confronted with increasing juvenile crime and have considered or enacted curfew ordinances as preventative measures. In 1973, the Supreme Court held that a municipality may enact a narrowly tailored curfew ordinance, but no court has discussed how a curfew could meet this requirement. City of Seattle v. Pullman, 82 Wash. 2d 794, 514 P.2d 1059 (1973). Given the number of extant curfew ordinances, the pervasive nature of the problem they seek to confront, and the lack of any guidance on how a municipality can enact a constitutionally-valid curfew ordinance, we conclude that the public interest mandates an opinion in this case. We are also encouraged to review the curfew ordinance even though this case is moot because Bellingham and Whatcom County officers stop minors under the curfew, but neither jurisdiction prosecutes infractions where the minor challenges the constitutionality of the ordinance. Under these unique circumstances where two jurisdictions use the ordinance to stop minors but avoid review of its constitutionality by dismissing their cases, review is particularly appropriate.
We first consider whether the curfew unreasonably interferes with minors' right to freedom of movement. Adults' right to freely move about and stand still has been recognized as fundamental to a free society. Papachristou v. City of Jacksonville, 405 U.S. 156, 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 often makes all other rights meaningful--knowing, studying, arguing, exploring, conversing, observing and even thinking." Aptheker v. Secretary of State, 378 U.S. 500, 520, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964) ( Douglas, J., Concurring). This freedom is rooted both in the First Amendment's protection of association and expression and in the fundamental liberties of the Fifth Amendment. Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989). Fundamental though it may be for adults, states may sometimes curtail minors' freedoms to provide them additional protection, even at the expense of their full constitutional rights. When a state has a strong interest in protecting minors, it may restrict their rights in ways in which they could not restrict adults'. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944). But a state's right to restrict minors' fundamental rights is not unlimited. Courts consider: (1) the particular vulnerability of children; (2) their inability to make crucial decisions; and (3) the importance of the parental role in child rearing to determine whether the State has a significant enough interest in protecting minors that it may restrict these rights. Bellotti v. Baird, 443 U.S. 622, 634, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979). In the context of curfew ordinances, courts have disagreed about whether minors have the same right to freedom of movement as adults. Compare Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981), with Waters, 711 F. Supp. at 1136-37. Our analysis of the Bellotti factors convinces us that they do.
First, minors under 15 years old are not peculiarly vulnerable to crime. Crime touches all of society and there is no evidence that minors under 15 years old are more likely to be affected by it than any other group. See, e.g., Hutchins v. District of Columbia, 942 F. Supp. 665, 673 (D.D.C. 1996); Waters, 711 F. Supp. at 1137. Nor does the curfew aid minors in making essential decisions. The Bellotti court recognized that the state may have an interest in limiting minors' right to make "important, affirmative choices with potentially serious consequences." Bellotti, 443 U.S. at 635. But as one court considering a curfew said, "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." Waters, 711 F. Supp. at 1137. We agree with the Waters court that a minor's choice to stay out past 10 p.m. on a weekday, for whatever reason, is not the kind of important life decision that the state has an interest in making for the minor. Finally, the curfew does not foster the parent-child relationship as the Bellotti court portrayed it. Rather, the curfew interferes with parental control because it prohibits parents from allowing their children to participate in beneficial programs or groups which may keep them out after curfew hours. The Bellotti factors do not support a Conclusion that the State may abridge minors' freedom of movement where it could not so limit adults.
Because it impacts a fundamental right, we consider the curfew's constitutionality under the strict scrutiny test. In Seattle v. Pullman, the court agreed that minor curfews are subject to strict scrutiny: "Similarly, minor curfew ordinances may be permissible where they are specific in their prohibition and necessary in curing a demonstrable social evil." Pullman, 82 Wash. 2d at 803. The question then becomes whether the ordinance is narrowly tailored to ...