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Treacy v. Municipality of Anchorage (05/14/2004) sp-5807
Treacy v. Municipality of Anchorage (05/14/2004) sp-5807
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID GALAWAY TREACY, )
) Supreme Court No. S-9800
Appellant, )
) Superior Court No.
v. )
3AN-99-3396 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
)
Appellee. ) [No. 5807
- May 14, 2004]
____________________________________ )
)
MUNICIPALITY OF ANCHORAGE, )
) Supreme Court No. S-10149
Appellant, )
) Superior Court No.
v. ) 3AN-99-7662 CI
)
SAM WILLIFORD, TARA RIORDAN, )
Individually and as mother of and next )
friend to BRENNA RANDALL )
RIORDAN, a minor under the age of )
eighteen (18), STEVE and ANN )
TREACY, individually and as parents )
of and next friends to DAVID )
TREACY, a minor under the age of )
eighteen (18), )
)
Appellees. )
____________________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt and Rene J.
Gonzalez, Judges.
Appearances: Mark Rindner, Lane Powell
Spears Lubersky LLP, Anchorage, for Appellant
David Galaway Treacy. Hugh W. Fleischer, Law
Offices of Hugh W. Fleischer, Anchorage, for
Appellees Sam Williford, Tara Riordan, and
Steve and Ann Treacy. Patricia Huna-Jines,
Assistant Municipal Attorney, and William A.
Greene, Municipal Attorney, Anchorage, for
Appellant (S-10149) and Appellee (S-9800)
Municipality of Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This consolidated appeal challenges the juvenile curfew
ordinance enacted by the Municipality of Anchorage. In one case,
David Treacy appeals from a hearing officers finding that he
violated the ordinance and that the ordinance is constitutional.
In a separate case, the Municipality of Anchorage appeals from a
superior court determination that the ordinance is
unconstitutional. We conclude that the municipality has a
compelling interest in protecting juveniles and curbing juvenile
crime, and that there is a sufficient connection between the
governments interests and the classifications it has chosen to
achieve them. For the purpose of this facial review of the
ordinances constitutionality, we also conclude that Anchorage
used the least restrictive alternative available. We therefore
uphold the ordinance against the claim that it is
unconstitutional on its face.
II. FACTS AND PROCEEDINGS
A. The Anchorage Ordinance
A. The Anchorage Police Department recorded a sixty-two percent
increase in the number of juvenile arrests between 1990 and 1994.
Because of this increase, the Municipality of Anchorage began to
take many proactive steps to curb juvenile crime, one of which
was to strengthen the municipalitys juvenile curfew law.
The Anchorage Municipal Assembly researched the curfew
issue by reviewing other cities curfew laws and recent court
decisions regarding curfews. Concerned with the constitutionality
of the existing ordinance, the Anchorage Municipal Assembly chose
to fashion its new law after an ordinance that had recently been
upheld by the Fifth Circuit Court of Appeals in the case of Qutb
v. Strauss.1
On October 10, 1995 the Anchorage Municipal Assembly
held a public hearing to discuss repeal of the existing curfew
law and re-enactment of a more comprehensive one. The assembly
heard testimony from a wide spectrum of speakers, and it
considered recent crime statistics which indicated an increase in
juvenile arrests for both violent crimes and property crimes.
The new ordinance was enacted into law as Anchorage
Municipal Code (AMC) 8.05.440 (subsequently amended and
renumbered in 19982).Under the ordinance, all persons under
eighteen years of age, except for those emancipated or married,
are banned from remaining in a public place or on the premises of
an establishment during curfew hours. Curfew hours vary by
season. From September to May the curfew hours are between 11:00
p.m. on weekdays and 1:00 a.m. on weekends through 5:00 a.m.
During the summer months of June, July, and August the curfew
hours are between 1:00 a.m. and 5:00 a.m. every day.
Under the curfew law as it existed at all times
relevant to this appeal, a parent,3 guardian, or owner of an
establishment can also be held liable for the actions of a minor
who violates the curfew if the parent, guardian, or owner
knowingly permits or, by insufficient control, allows the minor
to remain in a public place during curfew hours. The ordinance
has many exceptions to enforcement, including, among others,
employment, attendance at official school or religious
activities, errands approved by parents, and activities protected
by the First Amendment.4
B. Treacy v. Municipality of Anchorage
1. Facts
On January 9, 1999 at approximately 1:35 a.m.,
Anchorage Police Officer Kevin Armstrong observed a vehicle make
an illegal U-turn. He stopped the vehicle and spoke with the
individuals inside, one of whom was David Treacy. Officer
Armstrong checked the occupants identification cards and
discovered that Treacy was seventeen years old. Officer
Armstrong also discovered that Treacy had been cited previously
for violating the curfew ordinance. Officer Armstrong issued
Treacy a $300 citation for a second offense under the ordinance.
Before issuing the citation, Officer Armstrong attempted to
determine if Treacy came within any exceptions under the
ordinance, but determined that he did not.
Upon receiving the citation, Treacy handed Officer
Armstrong a business card that stated:
Curfew Release
I am exercising my
First Amendment Rights!
This individual is exempt from prosecution
under the Anchorage Curfew Law, as he/she
is in full compliance
with AO 95-195 (1)(C)(1)(g).
After reading the card, Officer Armstrong told Treacy that he
could challenge the citation before a hearing officer who would
determine the validity of his First Amendment defense.
2. Proceedings
On March 10 a hearing was held regarding the curfew
citation issued to Treacy. Treacy did not attend the hearing;
however, his father, Stephen Treacy, was in attendance and Treacy
was represented by counsel. Officer Armstrong was the only
witness. In a written decision issued on April 21 the hearing
officer found that the ordinance was constitutional and that
Treacy had violated it on the night of January 9.
Treacy then appealed to the superior court. Superior
Court Judge Karen L. Hunt found the ordinance to be
constitutional. Judge Hunt also affirmed the hearing officers
determination that Treacy had violated the ordinance and that no
competent evidence established that he had been exercising a
First Amendment right.
Treacy now appeals Judge Hunts order. Treacy, as well
as his parents, are also named parties in the accompanying case
involving Sam Williford.
C. Municipality of Anchorage v. Williford, et al.
1. Facts
a. Williford
a. The circumstances under which Williford was cited for
violating the ordinance5 are in dispute. According to the
citation, during curfew hours on August 15, 1996, Williford, a
minor, was in the parking lot at the Willowcrest School in a
vehicle with a friend. Police Officer Kevin Mitchell, who was at
the school investigating potential vandalism, noticed Willifords
vehicle enter the lot.
Williford contends that, on the night in question, he
was spending the night at a friends house. While at his friends
house, Williford claims that he began to experience pain related
to a chronic intestinal disease. He telephoned his mother who
told him to come home. Williford claims he was traveling home
when he was pulled over by Officer Mitchell. The officer called
Willifords mother and she explained that Williford was returning
home because of his intestinal problem. But when he was pulled
over, Williford told the officer that he stopped because he was
experiencing an asthma attack, not an upset stomach. Because the
officer noticed that Williford showed no signs of an asthma
attack, did not have an inhaler, and showed no sign of being in a
hurry to go home, Williford was cited for a curfew violation.
At the hearing on the citation, Williford and his
mother defended on the grounds that the defendant and his friend
were at a friends house when he began having an asthma attack.
The hearing officer was not persuaded by this claim, relying on
Officer Mitchells testimony that Williford showed no signs of
distress, there was no sign of an inhaler and defendant showed no
urgency about getting home. Based on the hearing officers
findings, Williford was cited for violating the ordinance and he
received a fine.
b. Riordan
On February 22, 1998 Brenna Riordan, a minor, was a
passenger in a car driven by a friend over the age of eighteen.
Brenna was traveling from her friends home to her home during
curfew hours. The vehicle was stopped by an Anchorage police
officer after it crossed the center line. After discovering
Brennas age, the officer telephoned Brennas mother, Tara Riordan.
Tara explained that Brenna had her permission to be out during
curfew hours. Nonetheless, the officer cited Brenna for
violating the ordinance. The hearing officer upheld the
citation.
2. Proceedings
On June 9, 2000 Williford, the Riordans, and the
Treacys (collectively the plaintiffs) filed a complaint in the
superior court for declaratory relief, claiming that the
ordinance is unconstitutional and seeking to permanently enjoin
Anchorage from further enforcement of the law. Following
amendment of the complaint, the plaintiffs moved for summary
judgment. Anchorage opposed the motion and cross-moved for
summary judgment.
Superior Court Judge Rene J. Gonzalez issued a decision
and order in March 2001 granting the plaintiffs motion for
summary judgment and denying Anchorages cross-motion. He found
the ordinance unconstitutional. Judge Gonzalez determined that
strict scrutiny was the appropriate standard to examine the
ordinances constitutionality. While he determined that Anchorage
had a compelling interest in promulgating the ordinance, he also
concluded that the municipality did not use the least restrictive
means to achieve its goal. Accordingly, Judge Gonzalez
determined that the ordinance was not narrowly tailored to
achieve its interest and, thus, that the ordinance was
unconstitutional.
Anchorage appeals.
D. Consolidation
Anchorage moved this court to consolidate Treacys
appeal with its own. No objections were filed and we granted the
motion.
III. STANDARD OF REVIEW
In an administrative appeal, where the superior court
acts as an intermediate appellate court, we directly review the
agency action in question.6 As we substitute our judgment, it is
our duty to adopt the rule of law that is most persuasive in
light of precedent, reason, and policy. 7 We review the factual
findings made by an administrative agency using the substantial
evidence test.8 Substantial evidence to support an agency
decision exists when there is such relevant evidence as a
reasonable mind might accept as adequate to support the
conclusion. 9
We review grants of summary judgment de novo and affirm
if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.10 We review
constitutional questions using our independent judgment, again
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.11
IV. DISCUSSION
A. Constitutionality of the Ordinance
A. In addition to challenging the ordinance as
unconstitutionally void for vagueness, the plaintiffs claim that
the ordinance violates a number of fundamental rights. Included
in the plaintiffs claim are the right to equal protection of the
laws, the right of parents to raise their children, the right to
travel, the right to privacy, and the rights to freedom of
expression and association. A duly enacted law or rule,
including a municipal ordinance, is presumed to be
constitutional.12 Courts should construe enactments to avoid a
finding of unconstitutionality to the extent possible.13 This is
particularly so in a case like this: a facial challenge as
opposed to a challenge to the ordinance as applied.14 We next
address whether the ordinance is void for vagueness or
unconstitutional upon its face.
1. The ordinance is not void for vagueness because it is
phrased with sufficient clarity so that ordinary people can
understand what conduct is prohibited .
As generally stated, the void-for-vagueness doctrine
requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.15
The plaintiffs argue that the ordinance contains words
which are not sufficiently defined so that an ordinary person is
put on notice as to what conduct is prohibited. Anchorage
contends each word is sufficiently defined. We agree with the
municipality.
a. remain
a. a. Under the Anchorage Municipal Code, a minor commits an
offense if he or she remains in any public place or on the
premises of any establishment within the municipality during
curfew hours.16 The plaintiffs claim that the operative word,
remain, is vague because someone in a moving automobile must be
characterized as lingering or staying in order to find a
violation. They assert that the Ninth Circuit came to the same
conclusion in Nunez ex rel. Nunez v. City of San Diego17 when
faced with an ordinances use of the words loiter, idle, wander,
stroll or play.18 But the language used in the San Diego
ordinance struck down in Nunez loiter, idle, wander, stroll or
play and the ordinances lack of meaningful exceptions to
enforcement make it wholly different from the ordinance at issue
in this case. The juvenile curfew ordinance struck down in Nunez
was enacted in 1947 and made it unlawful for a minor to loiter,
idle, wander, stroll or play in public during nighttime hours.19
The ordinance allowed for only four limited exceptions.20 The
Ninth Circuit held that the phrase loiter, wander, idle, stroll
or play was unconstitutionally vague and instead construed the
ordinance as prohibiting minors presence in public during curfew
hours.21 The court ultimately struck down the ordinance because
it lacked exceptions sufficient to protect the constitutional
rights of minors and their parents.22 As we discuss in the
sections that follow, we find that the exceptions to enforcement
of the Anchorage ordinance are sufficient to withstand a facial
challenge. Nunez is, therefore, inapposite.
The plaintiffs also rely on Brown v. Municipality of
Anchorage23 to support their argument that remain is vague. Brown
is also inapplicable as it is a loitering case. Here, the
violation comes not from loitering, but because juveniles are in
public places during curfew hours. To analogize to Brown, the
ordinance at issue would have to prohibit juveniles from
loitering at any time, not only during curfew hours.
The use of the word remain presents no vagueness
problem. It has been used in other curfew ordinances24 and upheld
after challenge.25 The plaintiffs do not provide sufficient
reason to conclude that it is incapable of being understood by
ordinary people. The Anchorage ordinance makes it an offense for
a minor to remain in a public place or on the premises of an
establishment during curfew hours. The import of this
prohibition is that minors must be at home during curfew hours
unless they qualify for an exception, to which we turn next.
The ordinance contains several exceptions to
prosecution under specified circumstances. For example, a minor
will not be prosecuted under the ordinance if he or she is:
accompanied by a parent or guardian, on an errand at the written
instruction of a parent or guardian, involved in an emergency, at
work, immediately outside of his or her own home, attending a
supervised activity, exercising First Amendment rights, or either
married or an emancipated minor.26 The plaintiffs attack four of
these exceptions as impermissibly vague.
b. the emergency exception
The ordinance provides an exception to prosecution if
the minor was involved in an emergency.27 The plaintiffs claim
that this exception is vague because the ordinance defines an
emergency as an unforeseen combination of circumstances or the
resulting state that calls for immediate action,28 which it
further specifies as including, but not limited to, a fire,
natural disaster, automobile accident, or any situation requiring
immediate action to prevent serious bodily injury or loss of
life.29 The plaintiffs argue that while the first statement could
lead one to believe that forgetting a book at the library
constitutes an emergency, the second implies that the situation
must be dire. Such a contradiction, they claim, makes the
exception vague.
Anchorage correctly notes that similar emergency
exceptions have been upheld in other jurisdictions. In Hutchins
v. District of Columbia,30 the court found a similar argument to
border on the frivolous.31 In fact, it is most likely because the
term emergency might connote so many different possibilities that
the word is further defined to provide specific examples of what
could constitute an emergency under the statute. Because the
emergency exception adequately provides notice of what could
constitute an emergency under the ordinance, it is not
impermissibly vague.
c. the sponsored event exception
The ordinance also provides an exception for events
sponsored by the Municipality of Anchorage, Anchorage School
District, a civic organization, or another similar entity that
takes responsibility for the minor.32 The plaintiffs contend that
this provision is vague because the ordinance does not specify
what sort of entity is similar to a civic organization or what it
means for such an organization to take responsibility for the
minor.
The court in Hutchins addressed a similar vagueness
challenge. The Hutchins court found that although the challenged
terms might be imprecise, they were not so ambiguous as to affect
the curfew ordinances constitutionality.33 In this context, the
addition of civic organization, or other similar entity simply
includes within the defense the general class of organizations
that may be thought analogous to schools, religious
organizations, or governmental entities.34 We agree with this
analysis.
While another similar entity and taking responsibility
for the minor may not specifically define this exception, the
context of the sponsored event exception indicates what sort of
activities and events qualify: The activity must be formally
authorized, supervised by adults, and sponsored by an
organization. Formally authorized, supervised, all-night
graduation activities would be covered; a private, all-night
graduation party without parental supervision would not.
Similarly, a meeting sponsored by the American Civil Liberties
Union or the Anchorage School District and supervised by adults
to discuss the impact of the curfew on minors legal rights would
be protected under this exception, whereas an informal gathering
of students at a coffee shop to discuss the curfew would not be
covered under the sponsored event exception.35
Because the sponsored event exception is sufficiently
understandable, this provision is not void for vagueness.
d. the sidewalk exception
Under the ordinance, a minor may remain outside of his
or her home during curfew hours if he or she is on the public
right-of-way immediately abutting the minors residence or that of
a next-door neighbor, if the neighbor did not complain to the
police department about the minors presence.36 The plaintiffs
complain that the sidewalk exception is impermissibly vague
because it grants neighbors standardless discretion to declare a
minor in violation of the curfew without reason. Such a
provision, they argue, is similar to the ordinance struck down as
void for vagueness in Coates v. City of Cincinnati.37
The Anchorage ordinance, however, is not comparable to
that in Coates. There, the ordinance allowed police to
criminalize conduct they found annoying.38 The term annoying was
what the court found vague because it provided no standard for
proscribed conduct.39 The ordinance here does not use such
language. Rather, it allows minors to remain on the public right-
of-way adjacent to their own homes and to remain on the public
right-of-way immediately next to the residence of a next-door
neighbor unless the neighbor complains to the police department.
The fact that a neighbor has discretion to complain to the police
poses no vagueness problem, because as the D.C. Circuit stated in
Hutchins, [i]t is irrelevant, for purposes of evaluating
vagueness, that a neighbor has discretion to call the police if a
juvenile remains on the neighbors sidewalk during curfew hours
the discretion exercised in this situation is analogous to that
exercised by property owners under trespass laws.40 The
plaintiffs argument also fails because it is not the neighbor who
issues the citation, but local law enforcement. That the
neighbor makes a complaint simply means the minor has no defense
under this exception. The minor may still remain outside if
another exception applies. Moreover, contrary to the situation
in Coates, a minor who remains on the sidewalk in front of the
minors own home would face no threat of prosecution.
Because the sidewalk exception is sufficiently clear and does not
give undue discretion to neighbors to implement the ordinance,
the provision is not vague.
e. the First Amendment exception
Finally, the ordinance also excepts from prosecution
minors who are engaged in protected First Amendment activity,
such as the free exercise of religion, freedom of speech, or the
right of assembly.41 The plaintiffs claim that the First
Amendment exception is vague. They argue that there is no way
for a minor or a police officer to determine what activities are
protected; therefore, the ordinance fails to put the public on
notice as to what activities are prohibited. This vagueness,
they argue, renders the exception meaningless unless both the
officer and the minor are constitutional scholars. The exception
is also meaningless, they claim, as it merely restates the
obvious, i.e., that the law cannot bar constitutionally protected
activities. They argue that, because the exception fails to
state what those activities are, it allows rights to be infringed
while the matter is sorted out in court. We reject these claims.
In Ramos ex rel. Ramos v. Town of Vernon,42 a similar
First Amendment exception was upheld, even though it lacked
examples of protected activity43 such as are included in the
ordinance at issue in this case.44 The Ramos court stated that
[t]he basic protections of the First Amendment are ones that
ordinary citizens know and comprehend. Thus, this exception
provides citizens with sufficient notice of the type of activity
that falls within the exception.45 And, as the Fourth Circuit
found in Schleifer ex rel. Schleifer v. City of Charlottesville:46
The First Amendment exception provides
adequate notice to citizens. It is perfectly
clear that core First Amendment activities
such as political protest and religious
worship after midnight would be protected.
It is equally clear that rollerblading would
not. Between these poles may lie marginal
cases, which can be taken as they come.[47]
We conclude that, on its face, the ordinance does not
violate the First Amendment. In so holding, we do not close the
door to a future argument that the ordinance as applied in
specific circumstances may violate an individuals rights under
the First Amendment.
2. The ordinance does not violate constitutional guarantees of
equal protection.
The Equal Protection Clause of the Fourteenth Amendment
is essentially a directive that all persons similarly situated
should be treated alike.48 The general rule is that legislation
is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest.49 But if a classification impinges a
fundamental right or disadvantages a suspect class,50 the
ordinance is subject to strict scrutiny.51
The plaintiffs claim the ordinance makes two
impermissible classifications calling for disparate treatment of
citizens. First, they claim the ordinance treats persons under
the age of eighteen differently from those over the age of
eighteen. Second, they allege the ordinance treats single or
unemancipated minors differently from those who are married or
emancipated. We consider first whether the rights at issue are
fundamental, and then whether the fact that minors are involved
affects the level of scrutiny to be applied.
a. fundamental right
a. There is no question that the rights at issue in this case
the rights to move about, to privacy, to speak are fundamental.
But Anchorage argues that we should apply an intermediate level
of scrutiny because the rights of children are not accorded the
same level of protection as those of adults. Before discussing
the level of scrutiny applicable to this case, we briefly address
the nature of the right to move about. The federal courts have
generally acknowledged a right to travel without defining its
precise contours. For example, the United States Supreme Court
has said: Undoubtedly the right of locomotion, the right to
remove from one place to another according to inclination, is an
attribute of personal liberty protected by the Fourteenth
Amendment to the United States Constitution.52 Indeed, it is
apparent that an individuals decision to remain in a public place
of his choice is as much a part of his liberty as the freedom of
movement inside frontiers that is a part of our heritage . . . .53
Like the federal courts, we have also recognized a right both to
interstate and intrastate travel.54 Accordingly, we assume that
the right to intrastate travel is fundamental, but we do not
address its scope.55
b. level of scrutiny
The plaintiffs contend that, because fundamental rights
are implicated, strict scrutiny is the appropriate level of
review for this equal protection claim. Anchorage contends that
intermediate scrutiny should apply because the rights of children
are not coextensive with those of adults and are entitled to less
protection.
In Bellotti v. Baird,56 the Supreme Court recognized
three reasons justifying the conclusion that the constitutional
rights of children cannot be equated with those of adults: 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.57 Anchorage
contends that, because Bellotti limits childrens rights,
intermediate scrutiny is the applicable standard. We reject this
view.
We have previously applied strict scrutiny to review
the constitutionality of laws that infringe upon the fundamental
rights of minors. In State v. Planned Parenthood of Alaska,58 we
held that a minors right to privacy was deserving of the most
exacting scrutiny.59 While that case addressed a minors right to
an abortion, we will not create a false dichotomy by classifying
some fundamental rights as more deserving of protection than
others. Accordingly, we reject the municipalitys argument that
intermediate scrutiny should apply.60
Instead, we agree with the Ninth Circuit, which stated
in Nunez, [t]he Bellotti test does not establish a lower level of
scrutiny for the constitutional rights of minors in the context
of a juvenile curfew. Rather, the Bellotti framework enables
courts to determine whether the state has a compelling interest
justifying greater restrictions on minors than on adults.61
Therefore, we will apply strict scrutiny in reviewing the
plaintiffs equal protection claims because those rights are
fundamental.
c. narrowly tailored
In order for the ordinance to survive strict scrutiny,
the classification created must be narrowly tailored to promote a
compelling governmental interest and be the least restrictive
means available to vindicate that interest.62
The principal objectives of the curfew ordinance were
to protect minors from crime and to curb juvenile crime.63 The
government has a compelling interest in each of these objectives.64
Whether the ordinance survives strict scrutiny, then, depends on
whether the ordinance is narrowly tailored and whether there is a
less restrictive alternative to meet the municipalitys interest.
To be narrowly tailored, there must be a sufficient
nexus between the stated government interest and the
classification created by the ordinance.65 The curfew was enacted
because of an increase in juvenile crime. The plaintiffs claim,
however, that Anchorage did not have enough data before it when
enacting the ordinance. The adequacy of statistical support for
a curfew law was also challenged in Qutb v. Strauss.66 There, the
Fifth Circuit determined that,
[a]lthough the city was unable to provide
precise data concerning the number of
juveniles who commit crimes during the curfew
hours, or the number of juvenile victims of
crimes committed during the curfew, the city
nonetheless provided sufficient data to
demonstrate that the classification created
by the ordinance fits the states compelling
interest.[67]
Sufficient data was provided here as well. While
Anchorage passed the ordinance without any fact-finding, it had
the benefit of police department statistics concerning the number
of juvenile arrests between the hours of 11:00 p.m. and 5:00
a.m., broken down by categories of crime, as well as the number
of juvenile victims, the percentage of emergency calls during
that period, and comparative figures showing what percentages of
calls (for all categories of crimes) were received during those
hours. The plaintiffs claim that a memorandum issued by the
Anchorage Police Department the day after the ordinance was
enacted shows that no statistics were utilized. The passage they
cite, however, merely states that the computer was unable to
provide a succinct report of the data, that the required
statistics were gathered by hand, and that a standard report
format should be developed to make gathering the figures easier
in the future. The memorandum cited by the plaintiffs disproves
their own allegation.
Not only did Anchorage rely on statistical data showing
an increase in juvenile crime, but it also heard testimony to
that effect from law enforcement officers regarding juvenile
criminal activity during curfew hours. When it enacted the
ordinance, Anchorage considered sufficient data to determine that
a youth curfew might aid in decreasing juvenile crime and
victimization.
The plaintiffs are correct that, since passage of the
ordinance, police reports show that only a small percentage of
violent and property crimes occurs during curfew hours. But this
is just as likely evidence of the curfews effectiveness as it is
evidence that the ordinance was not needed. It could also be the
result of other factors, such as an overall decrease in crime, as
occurred in Alaska during the period in question.
In sum, Anchorage considered sufficient data to provide
the nexus between the governments interest in protecting
juveniles and decreasing juvenile crime and the classifications
created by the ordinance. Moreover, statistics gathered since
passage of the ordinance do not cast substantial doubt on this
connection.
d. least restrictive means
a. We now turn to the last inquiry under our equal protection
analysis: Is the ordinance the least restrictive means available
to achieve the municipalitys objective? For the purpose of a
facial review in this declaratory judgment action, as the
ordinance concerns unemancipated minors who are moving about in
public after curfew hours without a recognized purpose or with an
improper purpose,68 we believe the answer is yes. The ordinance
affects minors only from 11:00 p.m. to 5:00 a.m. on weeknights
during the school year and 1:00 a.m. to 5:00 a.m. on weekends and
in the summer. It also contains numerous exceptions that allow
minors to be out after curfew hours for employment, including
traveling to and from work activities; for attendance at
activities sponsored by civic organizations, including traveling
to and from such events; in the event of emergency; for errands
done for their parents; for any purpose when they are accompanied
by a parent, guardian, or adult acting with parental
authorization; and in front of their own homes without
qualification. We believe that, taken as a whole, the ordinance
is the least restrictive means available to achieve the
municipalitys interests.69
The plaintiffs argue that a less restrictive
alternative would be to impose the curfew as a probationary
measure only on minors who violate the law. But this would not
meet the ordinances stated purpose of protecting juveniles from
becoming victims of crime perpetrated by adults. The plaintiffs
also argue that the municipality could attempt to reduce juvenile
crime by increasing recreational activities for youth or by
promoting the Anchorage Youth Court. This too would fail to
address the municipalitys concern for minors as victims of crime.
e. married or emancipated minors
a. The plaintiffs also allege that the ordinance violates equal
protection guarantees because it does not apply to minors who are
married or emancipated. But plaintiffs misunderstand the legal
significance of marriage and emancipation. The ordinance
establishes a curfew for minors but exempts from prosecution a
minor who is married or who has had the disabilities of minority
removed in accordance with AS 09.55.540.70 These exemptions are
redundant since both married and emancipated minors are
considered adults under the law. Alaska Statute 25.20.020 states
that [a] person arrives at the age of majority upon being married
according to law. . . . and AS 09.55.590(g) states that [e]xcept
for specific constitutional and statutory requirements for voting
and use of alcoholic beverages, a minor whose disabilities are
removed for general purposes has the power and capacity of an
adult, including, but not limited to the right to self-control. .
. . The ordinance does not apply to married or emancipated
minors because they are deemed adults by law.
f. facial challenge
As we noted, plaintiffs seeking facial invalidation of
a law must establish at least that the law does not have a
plainly legitimate sweep.71 The failure to meet this burden in
this case does not preclude the possibility that the ordinance as
applied in other situations might be unconstitutional. And
although the ordinance could be enforced in ways that bear no
rational connection to the municipalitys goals, or in ways that
unduly restrict the underlying substantive rights of movement,
privacy, and speech, we need not deal with such possibilities on
this facial review.72 Because there is a sufficient nexus between
the municipalitys interest and the classification created by the
ordinance, and because the ordinance presents the least
restrictive alternative for meeting all of its stated goals, we
hold that the ordinance is not facially unconstitutional as
applied to minors who are out during curfew hours with no
recognized purpose or with an improper purpose.
3. The ordinance does not violate the constitutional rights of
parents.
The plaintiffs claim that the ordinance violates their
Fourteenth Amendment right to due process because it infringes
upon the liberty interest of parents to determine how to raise
their children. Anchorage argues that parents rights to raise
their children are not unqualified and that, in any event, they
do not supersede the governments concurrent right to regulate
childrens conduct.
Under the Fourteenth Amendment to the United States
Constitution, no state shall deprive any person of life, liberty,
or property without due process of law.73 The due process clause
guarantees more than fair process, however; it also includes a
substantive component that provides heightened protection against
government interference with certain fundamental rights and
liberty interests. 74 Thus, the Fourteenth Amendment prohibits
the government from infringing on fundamental liberty interests
unless that infringement is narrowly tailored to serve a
compelling state interest.75
In order to qualify for substantive due process
protection, the fundamental right must be deeply rooted in this
nations history, and the fundamental liberty interest must be
carefully described.76 The due process clause protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children.77 This interest was
recognized more than seventy-five years ago in Meyer v. Nebraska.78
We have also recognized that [t]he right to direct the upbringing
of ones child is undeniably one of the most basic of all civil
liberties. 79 Thus, the plaintiffs are correct that parents have
a fundamental right to control the upbringing of their children.
The plaintiffs contend that the curfew on its face
interferes with the rights of parents because it limits the
freedom of parents to authorize their children to engage in
harmless errands or entertainment. They also contend that the
ordinance limits the ability of parents to promote the
development of their children by gradually giving them some of
the freedoms and responsibilities of adulthood. Anchorage
responds that recognizing the plaintiffs argument would transform
any case involving minors rights into one about parents rights,
thereby avoid[ing] the Supreme Courts determination that children
do not possess all the freedoms of adults.80
As the United States Supreme Court noted in Prince v.
Massachusetts,81 the state has a wide range of power for limiting
parental freedom and authority in things affecting the childs
welfare.82 Therefore, to the extent that the curfew is enforced
against minors moving about in public with no purpose or with an
improper purpose, we agree with Anchorage. We have already held
in Part IV.A.2 that the municipalitys interest in the ordinance
is compelling. We also find that the curfew is the alternative
least restrictive of parental rights while meeting the
municipalitys stated goals. Parents can avoid the effects of the
ordinance by providing a note to their child,83 by accompanying
the child while in public after curfew hours, or by authorizing
someone over the age of eighteen to have care and custody of the
child. The ordinance has little impact on parents who wish to
authorize their children to attend civic events, hold paid
employment, or act in emergencies or on authorized errands.84
Although the requirement of a timed, dated, and signed writing to
prove that the minor is on a parental errand does give us some
pause,85 we agree with Anchorage that such a requirement is
appropriate to the reasonable enforcement of the ordinance, and
we believe that the writing requirement would not unduly burden
parents in its mainstream application. We therefore hold that
the ordinance has a plainly legitimate sweep.86 As with the
plaintiffs equal protection claim, although the ordinance could
be enforced in ways that bear no rational connection to the
municipalitys goals, or in ways that more directly infringe the
rights involved (here, the rights of parents to direct the
upbringing of their children), we need not deal with such remote
possibilities on this facial review.87
Because the municipalitys interest is sufficiently
compelling, and because the ordinance presents the least
restrictive alternative for meeting all of its stated goals, we
hold that the ordinance is not facially unconstitutional with
regard to minors who are out after curfew with no purpose or with
an improper purpose, or to parents who knowingly permit or, by
insufficient control allow, their children to commit violations.
B. Treacy Was Properly Found Liable Under the
Ordinance.
1. Exclusion of Treacys Trial Exhibits Was Within the
Superior Courts Discretion.
In his appeal to the superior court, Treacy attempted
to introduce several exhibits into the record, including
Anchorage Assembly and Anchorage Police Department internal
memoranda used in drafting the ordinance and an article by the
Justice Policy Institute entitled The Impact of Juvenile Curfew
Laws in California. Anchorage moved to strike the exhibits on
the ground that they were not part of the agency record on
appeal,88 and Judge Hunt granted the motion without explanation.
Treacy appeals this ruling, arguing that the exhibits consisted
of legislative facts properly considered by an appeals court89 and
that Judge Hunt should have ordered a de novo trial to consider
the constitutional issues at stake since the hearing officer
could not properly have ruled on the constitutionality of the
ordinance.90 Anchorage contends that the exhibits are not
legislative facts and argues that, while Alaska Appellate Rule
609(b)(1)91 does afford the trial court discretion to hold a trial
de novo in an administrative agency review, such trials are rare.92
We review the superior courts decision whether to order
a de novo trial or a de novo examination of the record for abuse
of discretion.93 To find an abuse of discretion, we must be left
with a definite and firm conviction after reviewing the whole
record that the trial court erred in its ruling.94 A trial de
novo is particularly appropriate when certain issues are not
within the expertise of the reviewing body or when the present
record is inadequate.95 A trial de novo is also appropriate when
the procedures of the administrative body are inadequate, for
instance when they do not provide due process,96 when the agency
was biased,97 or when the agency excluded important evidence.98
Normally, however, a court will review an agency decision on the
record.99 In this case, where there was no suggestion of
inadequate procedure or bias, the superior court acted well
within its discretion in not granting a trial de novo on the
broad question of the constitutional validity of the ordinance.
Since there was no trial de novo, the superior court also acted
within its discretion to review only the administrative agency
record under Alaska Appellate Rule 604(b)(1), regardless of
whether the proposed exhibits contained legislative facts. It
should be noted that, even had we ruled to the contrary, this
issue would be moot, as we have considered most, if not all, of
the excluded evidence in our facial review of the ordinance.
2. The word remain in the ordinance does not imply lack of
motion.
1. Treacy contests the application of the ordinance to his
particular case. He argues that he cannot be said to have
remained in public under the ordinance, which defines remain in
part as to stay or to linger, because all of these words imply a
lack of motion, whereas he was in a moving car. Anchorage
replies that the intent of the ordinance is to prevent minors
from being on the streets or in public places after curfew hours,
and that Treacys definition of remain is so excessively precise
as to strain common sense.
We hold that Treacy could not avoid citation under the
ordinance merely by moving from one place to another.100 Remain
does not necessarily imply a lack of motion; as we discussed
above, a minor who is moving about in public without a purpose or
with an improper purpose remains in public after a time when he
or she should have gained lawful admittance to a place to which a
substantial group of the public does not have access.101 Although
other courts have held that remain in a juvenile curfew ordinance
simply refers to the minor being in public,102 Treacys case does
not require us to rule on this issue.103 We hold that the hearing
officer and superior court did not construe the ordinance
improperly in Treacys case.
V. CONCLUSION
I. The ordinance is not void for vagueness. The ordinance is
not unconstitutional on its face: It serves compelling
governmental interests, it is supported by a sufficiently close
connection between those interests and the classifications it
utilizes to vindicate them, and it uses the least restrictive
alternative in doing so. Accordingly, we conclude that the
ordinance is constitutional under the United States and Alaska
Constitutions. We therefore AFFIRM the decision in 3AN-99-3396
CI holding the ordinance constitutional and REVERSE the decision
in 3AN-99-7662 CI holding the ordinance unconstitutional.
_______________________________
1 11 F.3d 488 (5th Cir. 1993).
2 The amended and renumbered ordinance (with 1998
additions underlined) reads as follows:
8.75.060 Minors: curfew.
A. Definitions. The following words, terms and
phrases, when used in this section, shall have the
meanings ascribed to them in this subsection, except
where the context clearly indicates a different
meaning:
Curfew hours means:
1. September through May:
a. 11:00 p.m. on any Sunday, Monday,
Tuesday, Wednesday, or Thursday until
5:00 a.m. of the following day; and
b. 1:00 a.m. on any Saturday and Sunday until 5:00 a.m. of the
same day.
2. June through August: 1:00 a.m. on any day until 5:00 a.m. of
the same day.
Emergency means an unforeseen combination of
circumstances or the resulting state that calls for
immediate action. The term includes, but is not
limited to, a fire, natural disaster, automobile
accident, or any situation requiring immediate action
to prevent serious bodily injury or loss of life.
Establishment means any privately-owned place of
business operated for a profit to which the public is
invited, including but not limited to any place of
amusement or entertainment.
Guardian means:
1. A person who, under court order, is the
guardian of the minor; or
2. A public or private agency with whom a minor has been placed
by a court.
Knowingly means, with respect to a conduct or to a
circumstance described by a provision of law defining
an offense, that a person is aware that his or her
conduct is of that nature or that the circumstance
exists; when knowledge of the existence of a particular
fact is an element of an offense, that knowledge is
established if a person is aware of a substantial
probability of its existence, unless the person
actually believes it does not exist.
Minor means any person under the age of 18 years.
Operator means any individual, firm, association,
partnership, or corporation operating, managing, or
conducting any establishment. The term includes the
members or partners of an association or partnership
and the officers of a corporation.
Parent means a person who is:
1. A natural parent, adoptive parent, or step-
parent of another person; or
2. At least 18 years of age and authorized by a parent or
guardian to have the care and custody of a minor.
Public place means any place to which the public
or a substantial group of the public has access, and
includes but is not limited to streets, highways,
sidewalks, bridges, alleys, plazas, parks, driveways,
parking lots, and the common areas of schools,
hospitals, apartment houses, office buildings,
transport facilities, and shops.
Remain means to:
1. Linger or stay; or
2. Fail to leave the premises when requested to
do so by a police officer or the owner,
operator, or other person in control of the
premises.
Serious bodily injury means bodily injury that
creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily member
or organ.
A. Offenses.
1. A minor commits an offense if he or she
remains in any public place or on the
premises of any establishment within the
municipality during curfew hours.
2. A parent or guardian of a minor commits an offense if he or
she knowingly permits, or by insufficient control allows, the
minor to remain in any public place or on the premises of any
establishment within the municipality during curfew hours in
violation of this section.
a. Indifference as to the activities or whereabouts of the
minor shall be prima facie evidence of insufficient control.
3. The owner, operator, or any employee of an establishment
commits an offense if he or she knowingly allows a minor to
remain upon the premises of the establishment during curfew
hours.
B. Exceptions.
1. It is an exception to prosecution under subsections B.1. and
B.2. of this section if the minor was:
a. Accompanied by his or her parent or guardian;
b. On an errand at the written direction of his or her parent
or guardian without any detour or stop (written direction must be
signed, timed, and dated by the parent or guardian and must
indicate the specific errand);
c. Involved in an emergency;
d. Engaged in an employment activity, or going to or returning
from an employment activity, without detour or stop;
e. On the public right-of-way immediately abutting the minors
residence or immediately abutting the residence of a next-door
neighbor, if the neighbor did not complain to the police
department about the minors presence;
f. Attending, or going to or returning home from, without any
detour or stop, an official school, religious, or other
recreational activity supervised by adults and sponsored by the
municipality, Anchorage school district, a civic organization, or
another similar entity that takes responsibility for the minor;
g. Exercising First Amendment rights protected by the United
States Constitution, such as the free exercise of religion,
freedom of speech, and the right of assembly; or
h. Married or had disabilities of minority removed in
accordance with AS 9.55.540.
2. It is an exception to prosecution under subsection B.3 of
this section that the owner, operator, or employee of an
establishment promptly notified the police department that a
minor was present on the premises of the establishment during
curfew hours and refused to leave.
D. Violation of this section shall be punished by
a fine of not more than $300.00.
E. As an alternative to the remedies, procedures
and penalties provided in this Title and section
1.45.010, a violation of this section may be charged as
a civil violation subject to and prosecuted in
accordance with Title 14 and in such case shall be
punishable by a civil penalty in accordance with
chapter 14.60.
3 Subsequent amendment of the ordinance removed parental
liability. See AMC 8.75.060(B) (2003).
4 AMC 8.75.060(C)(1) (1998).
5 Because Sam Williford was found in violation of the
ordinance in 1996, we assume he was cited under the version of
the curfew ordinance in effect at that time, AMC 8.05.440 (1995).
6 See N. Alaska Envtl. Ctr. v. State, Dept of Natural
Res., 2 P.3d 629, 633 (Alaska 2000).
7 Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Commn,
836 P.2d 343, 348 (Alaska 1992) (quoting Guin v. Ha, 581 P.2d
1281, 1284 n.6 (Alaska 1979)).
8 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998).
9 Bouse v. Firemans Fund Ins. Co., 932 P.2d 222, 231
(Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d
1044, 1046 (Alaska 1978)).
10 Municipality of Anchorage v. Repasky, 34 P.3d 302, 305
(Alaska 2001).
11 Chiropractors for Justice v. State, 895 P.2d 962, 966
(Alaska 1995).
12 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899-900
(Alaska 2003); Hilbers v. Municipality of Anchorage, 611 P.2d 31,
35 (Alaska 1980).
13 State, Dept of Revenue v. Andrade, 23 P.3d 58, 71
(Alaska 2001).
14 In deciding a facial challenge to a statute on
procedural due process grounds, we have held that the challenged
act would be invalid on its face only if no set of circumstances
exists under which the Act would be valid. Javed v. Dept of Pub.
Safety, Div. of Motor Vehicles, 921 P.2d 620, 625 (Alaska 1996).
In a later case involving the right to privacy, however, we
emphasized that Javeds no set of circumstances language is not a
rigid requirement. State v. Planned Parenthood of Alaska, 35
P.3d 30, 35 (Alaska 2001). Yet even under a relaxed standard of
facial review it would be improper to declare Anchorages
ordinance invalid on its face if it has a plainly legitimate
sweep. See Troxel v. Granville, 530 U.S. 57, 85 & n.6 (2000)
(Stevens, J., dissenting). For purposes of deciding this case,
our opinion assumes that this lenient standard applies to our
facial review of the curfew ordinance, concluding that, despite
any occasional problems it might create in its application to
specific cases, the ordinance has a plainly legitimate sweep.
15 Kolender v. Lawson, 461 U.S. 352, 357 (1983).
16 AMC 8.75.60(b)(1).
17 114 F.3d 935 (9th Cir. 1997).
18 Id. at 940-41.
19 Id.
20 Id. at 938-39.
21 Id. at 943-44.
22 Id. at 949, 951-52.
23 584 P.2d 35 (Alaska 1978).
24 See, e.g., Qutb v. Strauss, 11 F.3d 488, 497 (5th Cir.
1993); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1252
(M.D. Pa. 1975) affd, 535 F.2d 1245 (3d Cir. 1976).
25 Qutb, 11 F.3d at 497; Bykofsky, 401 F. Supp. at 1252.
26 AMC 8.75.060(C)(1).
27 AMC 8.75.060(C)(1)(c) (1998).
28 AMC 8.75.060(A) (1998).
29 Id.
30 188 F.3d 531 (D.C. Cir. 1999).
31 Id. at 547.
32 AMC 8.75.060(C)(1)(f) (1998).
33 Hutchins, 188 F.3d at 547.
34 Id.
35 We pass no judgment on whether such a meeting might be
included within the First Amendment exception. AMC
8.75.060(C)(1)(g).
36 AMC 8.75.060(C)(1)(e).
37 402 U.S. 611 (1971).
38 Id. at 612 n.1.
39 Id. at 614.
40 Hutchins v. Dist. of Columbia, 188 F.3d 531, 547 (D.C.
Cir. 1999).
41 AMC 8.75.060(C)(1)(g).
42 48 F. Supp. 2d 176 (D. Conn. 1999), revd on other
grounds, Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003).
43 Id. at 182.
44 AMC 8.75.060(C)(1)(g) (1998).
45 Ramos, 48 F. Supp. 2d at 182, revd on other grounds,
Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003); see also
Adam W. Poff, A Tale of Two Curfews (And One City): What do Two
Washington, D.C. Juvenile Curfews Say About the Constitutional
Interpretations of District of Columbia Courts and the Confusion
Over Juvenile Curfews Everywhere?, 46 Vill. L. Rev. 277, 291-92
(2001) (discussing exceptions for First Amendment activities,
similar to ordinance at issue here, that were upheld after legal
challenge).
46 159 F.3d 843 (4th Cir. 1998).
47 Id. at 854.
48 City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)).
49 Id.
50 Age is not a suspect class. Gregory v. Ashcroft, 501
U.S. 452, 470 (1991). Therefore, the plaintiffs claim strict
scrutiny is applicable solely on the basis that fundamental
rights are at stake.
51 Plyler, 457 U.S. at 216-17; Valley Hosp. Assn, Inc. v.
Mat-Su Coalition for Choice, 948 P.2d 963, 971 (Alaska 1997).
52 Williams v. Fears, 179 U.S. 270, 274 (1900). See also
Hutchins v. Dist. of Columbia, 188 F.3d 531, 536-39 (D.C. Cir.
1999) (plurality opinion) (recognizing some Supreme Court case
law suggesting some . . . generalized right to movement but
declining to find the existence of a fundamental right for
juveniles to be in a public place without adult supervision
during curfew hours).
53 City of Chicago v. Morales, 527 U.S. 41, 54 (1999)
(internal quotations and citations omitted).
54 See Peloza v. Freas, 871 P.2d 687, 691 (Alaska 1994)
(recognizing right to both interstate and intrastate travel as
affecting constitutionality of durational residency
requirements).
55 See Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993)
(assuming without deciding that right to move about freely was
fundamental for purpose of reviewing juvenile curfew ordinance).
56 443 U.S. 622 (1979).
57 Id. at 634.
58 35 P.3d 30 (Alaska 2001).
59 Id. at 45 (quoting Planned Parenthood of Cent. New
Jersey v. Farmer, 762 A.2d 620, 633 (N.J. 2000)).
60 We are aware that some courts have applied intermediate
scrutiny when evaluating the constitutionality of a juvenile
curfew ordinance. See, e.g., Ramos v. Town of Vernon, 353 F.3d
171, 180-81 (2d Cir. 2003); Hutchins v. Dist. of Columbia, 188
F.3d 531, 541 (D.C. Cir. 1999); Schleifer ex rel. Schleifer v.
City of Charlottesville, 159 F.3d 843, 847 (4th Cir. 1998).
While Bellotti, 443 U.S. at 634 (plurality opinion), held that
the rights of minors are not always coextensive with those of
adults, the Supreme Court has recognized that there are many
situations in which the rights of children warrant the same level
of protection. See, e.g., In re Winship, 397 U.S. 358 (1970)
(holding that beyond a reasonable doubt standard applies to
juveniles in criminal proceedings); In re Gault, 387 U.S. 1
(1967) (holding that criminal due process rights apply in
juvenile delinquency proceedings). In our view, the
determination of whether the minors right is coextensive with
that of an adult is not a question of whether the right itself is
fundamental. Fundamental rights will be reviewed using a strict
scrutiny standard. Rather, where minors are involved, we will
use the Belotti factors to assess the governments justification
for its infringement on those fundamental rights.
61 Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935,
945 (9th Cir. 1997). See also Qutb v. Strauss, 11 F.3d 488, 492
(5th Cir. 1993) (subjecting juvenile curfew ordinance to strict
scrutiny review).
62 Planned Parenthood, 35 P.3d at 42 (when state action
infringes upon fundamental right, state must demonstrate that no
less restrictive alternative exists to accomplish its purpose).
63 The curfew ordinance was aimed at both protecting
minors and curbing juvenile crime. The ordinance noted that the
municipality highly values the safety and welfare of our minors,
and that the physical, psychological, and moral well-being of our
minors is threatened by . . . increasing . . . street crime and
juvenile gang activity. It also stated that during the late
night and early morning hours minors in public places are
particularly susceptible to participate in unlawful activities
and are particularly vulnerable to become victims of older
perpetrators of crime and that the Municipality has an obligation
to provide for the protection of minors.
64 See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 444
(1990) (the state has a strong and legitimate interest in the
welfare of its young citizens, whose immaturity, inexperience,
and lack of judgment may sometimes impair their ability to
exercise their rights wisely.); Sable Communications of
California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (We have
recognized that there is a compelling interest in protecting the
physical and psychological well-being of minors.).
65 Nunez, 114 F.3d at 946.
66 11 F.3d 488 (5th Cir. 1993).
67 Id. at 493.
68 We use this phrase to denote minors who are out during
curfew hours but fall under none of the exceptions in the
ordinance.
69 See Schleifer ex rel. Schleifer v. City of
Charlottesville, 159 F.3d 843, 851-52 (4th Cir. 1998) (holding
that juvenile curfew ordinance was least restrictive alternative
because it was only in effect for a few hours each night and it
contained similar list of exceptions); Qutb, 11 F.3d at 494-95
(same).
70 AMC 8.75.060(C)(1)(h).
71 Troxel v. Granville, 530 U.S. 57, 85 & n.6 (2000)
(Stevens, J., dissenting).
72 See State, Dept of Revenue, Child Support Enforcement
Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998) (holding that mere
fact that statute may be applied unconstitutionally need not
result in facial unconstitutionality).
73 U.S. Const. amend XIV, 1.
74 Troxel, 530 U.S. at 65 (quoting Washington v.
Glucksberg, 521 U.S. 702, 720 (1997)).
75 Washington, 521 U.S. at 721.
76 Id. at 720-21.
77 Troxel, 530 U.S. at 66.
78 262 U.S. 390, 399 (1923).
79 In re Adoption of A.F.M., 15 P.3d 258, 266 (Alaska
2001) (quoting Flores v. Flores, 598 P.2d 893, 895 (Alaska
1979)).
80 See also Schleifer ex rel. Schleifer v. City of
Charlottesville, 159 F.3d 843, 852-53 (4th Cir. 1998) (adopting
similar analysis in rejecting challenge to Charlottesville curfew
ordinance).
81 321 U.S. 158 (1944)
82 Id. at 167.
83 The requirement of a note was deleted from the
ordinance by the Anchorage Assembly after the violations charged
in these cases. The current ordinance provides the following
exception: Attending, or going to and returning from, any lawful
activity with the consent of the minors parent or guardian. AMC
8.75.060(C)(1)(e) (2003).
84 See, e.g., Schleifer, 159 F.3d at 853 (upholding
ordinance because no substantial impact on parents rights); Qutb
v. Strauss, 11 F.3d 488, 495-96 (5th Cir. 1993) (same).
85 But see supra n.83.
86 See Troxel v. Granville, 530 U.S. 57, 85 & n.6 (2000)
(Stevens, J., dissenting).
87 See State, Dept of Revenue, Child Support Enforcement
Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998).
88 Alaska R. App. P. 604(b)(1)(A) governs actions in which
the superior court acts as an appellate court for an agency
proceeding and provides in relevant part that [t]he record on
appeal consists of the original papers and exhibits filed with
the administrative agency, and a typed transcript of the record
of proceedings before the agency.
89 See State v. Erickson, 574 P.2d 1, 7 (Alaska 1978)
(holding that appellate court may consider legislative facts,
those that provide background policy considerations of statute or
rule, even if those facts were not presented to trial court).
90 See Califano v. Sanders, 430 U.S. 99, 109 (1976)
(Constitutional questions obviously are unsuited to resolution in
administrative hearing procedures.).
91 Alaska R. App. P. 609(b)(1) provides in relevant part
that [i]n an appeal from an administrative agency, the superior
court may in its discretion grant a trial de novo in whole or in
part.
92 See Southwest Marine, Inc. v. State, Dept of Transp. &
Pub. Facilities, 941 P.2d 166, 179 (Alaska 1997) (citing Kott v.
City of Fairbanks, 661 P.2d 177, 180 n.1 (Alaska 1983)).
93 See id. at 172, 179-80.
94 Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska
1998).
95 Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 102
(Alaska 1992).
96 State v. Lundgren Pac. Constr. Co., Inc., 603 P.2d 889,
896 (Alaska 1979).
97 City of Fairbanks Mun. Util. Sys. v. Lees, 705 P.2d
457, 460 (Alaska 1985).
98 Id.
99 Id.
100 We review questions of statutory construction de novo.
See State v. Saathoff, 29 P.3d 236, 237 (Alaska 2001).
101 See AMC 8.75.060(A) (Public place means any place to
which the public or a substantial group of the public has
access).
102 See Ramos ex rel. Ramos v. Town of Vernon, 48 F. Supp.
2d 176, 182 (D. Conn. 1999), revd on other grounds, Ramos v. Town
of Vernon, 353 F.3d 171 (2d Cir. 2003); Bykofsky v. Borough of
Middletown, 401 F. Supp. 1242, 1252 (M.D. Pa. 1975).
103 Aside from the exceptions, the ordinance suggests that
a minor who leaves a public establishment at the request of the
owner and goes home, for instance, does not violate the statute
while in transit. See AMC 8.75.060(A) (Remain means to: 1.
Linger or stay; or 2. Fail to leave the premises when requested
to do so by a police officer or the owner, operator, or other
person in control of the premises.). Whether a minor has
remained in public after curfew hours is a matter for case-by-
case determination.
