# Sale Ex Rel. Sale v. Goldman

> West Virginia Supreme Court · July 20, 2000 · 208 W. Va. 186

URL: https://www.frixlaw.com/law-library/cases/9599375

## Case

- **Full name:** Anna SALE, by and Through Her Next Friend and Parents, June and William SALE; Katelyn Genevieve Kimmons, by and Through Her Next Friend and Parent, Rebecca Kimmons; Carol Freas, M.D.; Lealah Pollack, by and Through Her Next Friend and Parent, Carol Freas; And the American Civil Liberties Union of West Virginia, Petitioners Below, Appellants, v. Mayor Jay GOLDMAN, Mayor of the City of Charleston; Chief Jerry Riffe, the Chief of Police for the City of Charleston; And the City of Charleston, Respondents Below, Appellees, Center for Community Interest and West Side Neighborhood Association, Intervenors Below, Appellees
- **Court:** West Virginia Supreme Court
- **Decided:** July 20, 2000
- **Citations:** 208 W. Va. 186; 539 S.E.2d 446
- **Precedential status:** Published
- **Opinion:** Dissent by Starcher
- **Judges:** Starcher, Michael, Scott, Thornsbury
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9599375

## Opinion text

STARCHER, Justice,
dissenting:
(Filed July 20, 2000)
After working for more than 20 years as a circuit judge, where I focused on effectively responding to problems of juvenile abuse, victimization, crime, and delinquency, I am confident that the curfew of which the majority opinion approves is not only unconstitutional — it is also simply ineffectual political posturing and pandering — at the expense of the civil rights of young people and their parents.
The urge to scapegoat and stigmatize someone, anyone — for the larger shortcomings of our society, and especially how we treat our kids — finds regular expression in our juvenile justice system, just as it does in our larger criminal justice system. Hence, youth curfews.
While I disagree with Judge King’s ultimate conclusion, in the decision that we are reviewing, to uphold the Charleston curfew— I appreciate very much the breadth and quality of Judge King’s thoughtful and thorough legal opinion. He brought a remarkable level of jurisprudence and scholarship to his decision that fully elevated this issue to its proper importance.
I particularly appreciate and agree with Judge’s King’s application of “strict scrutiny” to the curfew in question. For the majority of this Court, then, to retreat from Judge King’s “strict scrutiny” conclusion, is an inexplicable and unnecessary derogation of the rights of all West Virginians — including those West Virginians who are not yet the “magic age” of 18.
Fortunately, because the majority opinion is per curiam, the majority’s chosen approach is not set in the firmest of jurisprudential cement. I hope that in the future this Court will recognize that strict scrutiny applies to the rights of young people to assemble, etc. — just as it does to the rights of other citizens.
With regard to the question of whether such a curfew is constitutionally sustainable, the legal reasoning of the majority is in clear tension with a more enlightened and progressive legal approach.
We need not look far to find a definitive expression of such an enlightened and progressive approach. For if we merely substitute “Charleston” for “Charlottesville,” what Judge Blaine Michael of the United States Court of Appeals for the Fourth Circuit, a distinguished West Virginian, wrote in his dissent in Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir.1998) — as set forth in full in the Appendix to this dissent — is one hundred per cent applicable to the instant case.
I cannot improve on Judge Michael’s writing (and what a job it would be to even summarize it!). I therefore set forth and subscribe to his reasoning as stating why I dissent to the constitutional reasoning of the per curiam majority opinion.
Finally, the police will make what use they will of the curfew that we have approved. After a while, it will probably gather dust in a drawer. I hope that until that happens, the police will be restrained, and that we will not see the curfew’s application disproportionately to minority youth. I also hope that young people and their parents will take full advantage of the “First Amendment” provisions and protections of the curfew — because I think that in a passive-media-driven culture, actively asserting the right of freedom of expression is one of the best kinds of *201 practical education in citizenship that our children can have.
APPENDIX

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9599375. Public record. Not legal advice.