City of Seattle v. Pullman

Hunter, J.

(dissenting) — The majority states the defendant, Ronny Gene Pullman, cannot be convicted unless there is a determination of an actual violation of a valid curfew ordinance by the minor girls who were in his company. I believe the undisputed evidence shows the ordinance was violated by the minor 15-year-old girls, and that the ordinance is valid.

The record clearly shows that the defendant told the police officer that they (he and the two minor girls) “had decided to take a drive around the beach before going home” at this late hour in the morning. Clearly, this conduct comes within the meaning of the prohibition of the ordinance (Seattle Code 12.40.020), providing:

It is unlawful for any minor child under the age of eighteen years to loiter, idle, wander or play on or in the streets, sidewalks, highways, alleys, parks or other public places or in an automobile or other conveyance or in or upon unoccupied premises or grounds during curfew hours: Provided, that a minor child shall not be deemed to be loitering, idling, wandering, or playing where such minor child is accompanied by his or her parent or guardian, or is travelling by direct route to or from work in the regular course of employment where such occupation and employment have been approved by authorities pursuant to state law and such child has in his possession evidence of such approval, or is travelling by direct route to or from activities duly sponsored by religious or educational organizations, or is sent by his parent or guardian on some lawful business or errand, in which case *804 such child shall have with him the written consent of his parent or guardian.

(Italics mine.)

Seattle Code 12.40.040 states:

It is unlawful for anyone not the parent or guardian of any child under the age of eighteen years, or anyone not having the express consent of such parent or guardian, to be with or accompany any such child who at the time is violating Section 12.40.020. For the purposes of this section, such “express consent” shall be a defense to any charge under this section.

The majority states there is no evidence that the children were not acting with the consent of their parents. It is implicit that this conduct was not with the consent of the parents as admittedly they were' acting by reason of their own decisions, and furthermore, it would be difficult to imagine that responsible parents would give their consent for their 15-year-old daughter to be driving around on the beaches with an older boy after attending a party at the late hour of 4:30 in the morning. Moreover, even with the consent of the parents, this sojourn on the beaches would not come within the exceptions in the proviso of the ordinance.

The defendant contends that the Seattle curfew ordinance, in its entirety, is an abridgment of certain constitutionally guaranteed rights of citizenship, including among others: (1) freedom of association; (2) freedom of movement; (3) freedom from discriminatory class legislation; and (4) the right to due process in the form of a clear and understandable law, with which the majority agrees, except item three which it did not discuss.

In analyzing the defendant’s contentions certain general propositions of law must be kept in mind.

First, when the constitutionality of an ordinance is challenged, it will be presumed constitutional and valid until the contrary clearly appears. State v. Dixon, 78 Wn.2d 796 , 479 P.2d 931 (1971), and cases cited therein. Furthermore, when two interpretations of a statute are possible, one *805 which is constitutionally valid and the other constitutionally invalid, the court will adopt the construction upholding its validity. State v. Dixon, supra, and cases cited therein.

Second, it is well established that the local police power of cities is the same as the police power of the state, except as restricted by legislative enactments of the state. Patton v. Bellingham, 179 Wash. 566 , 38 P.2d 364 (1934), and cases cited therein. It is also well established that legislative bodies have broad discretion in enacting ordinances under their police power. Reesman v. State, 74 Wn.2d 646 , 445 P.2d 1004 (1968), and cases cited therein. We stated in Reesman on page 650:

Unless the measures adopted by the legislature in given circumstances are palpably unreasonable and arbitrary so as to needlessly invade property or personal rights as protected by the constitution, the legislative judgment will prevail.

See also Hass v. Kirkland, 78 Wn.2d 929 , 481 P.2d 9 (1971).

Third, “the state’s authority over children’s activities is broader than over like actions of adults.” Prince v. Massachusetts, 321 U.S. 158 , 88 L. Ed. 645 , 64 S. Ct. 438 (1944). “What may be wholly permissible for adults may not be so for children either with or without their parents’ consent.” Prince v. Massachusetts, supra. See also Ginsberg v. New York, 390 U.S. 629 , 20 L. Ed. 2d 195 , 88 S. Ct. 1274 (1968).

With this background as a reference, let us turn to the merits of the issues presented by the defendant to determine if the city’s legislation is so unreasonable and arbitrary as to interfere needlessly with the personal rights of the defendant.

The defendant contends that the Seattle, curfew ordinance violates his First Amendment right of freedom of association as applied by the Fourteenth Amendment to the states. In considering this contention, it is necessary to observe the manifest distinction between the right of the state to regulate children’s conduct and that of adults. The United States Supreme Court in Prince clearly recognized this distinction. There the defendant was convicted of fur *806 nishing her 9-year-old niece, of whom the defendant was custodian, with religious literature to sell on the streets in contravention of Massachusetts’ statutes which prohibited young ladies under the age of 18 from selling literature on the streets and furnished sanctions upon persons supplying literature to minors for resale on the streets. The defendant based her appeal to the United States Supreme Court on the contention that said statute was in violation of her right to teach her child the tenets and practices of her faith and in violation of the child’s right to observe the preaching of the gospel by public distribution. The defendant also contended that the statute was in contravention of her parental right as secured by the due process clause of the fourteenth amendment to the United States Constitution. In this case, the Supreme Court balanced the individual’s private interests against the interest of society in its youth and held:

We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed

(Italics mine.) Prince v. Massachusetts, 321 U.S. 158, 170 , 88 L. Ed. 645 , 64 S. Ct. 438 (1944).

As I read the Seattle curfew ordinance, a child under the age of 18 may not “loiter, idle, wander or play” after 10 p.m. in the listed areas. The Seattle curfew ordinance does not restrict the rights of the included minors from going upon the streets or other listed areas between the specified hours but only from “loitering, idling, wandering or playing” in the given areas.

Against this interest of the children of Seattle we must balance the interest of society in having mature, well balanced citizens. As stated in Prince v. Massachusetts, supra at 165:

To make accommodation between these freedoms and *807 an exercise of state authority always is delicate . . . Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children . . . It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.

The Supreme Court of the United States recognized in the Ginsberg case that parental control and guidance is not always provided and that the interest of society in protecting its youth justifies reasonable regulation of the conduct of children. We can take judicial notice that children without purpose wandering about the streets at all hours of the night often leads to mischief to their detriment and to the members of society who, in some instances, become victims of mugging and assaults, robberies and other violent crimes committed by juveniles. Suffice to say, the rightful boundary of the city in restricting the activities of the child in the instant case is in the best interest of society and the child itself, and the rightful boundary of the city’s police power has not been crossed.

The city’s exercise of its police power in this instance appears to bear a reasonable relationship to the evil it seeks to prevent and thus should be sustained. See Hass v. Kirkland, supra, and cases cited therein.

The defendant contends that the Seattle curfew ordinance restricts his freedom of movement guaranteed under the fifth amendment to the United States Constitution. The same reasoning and logic applies to this argument as applies to the defendant’s argument under the first amendment to the constitution. The narrow limitation placed on the movement of the child must be balanced against society’s interest in its youth. As Prince v. Massachusetts, supra, indicates, reasonable grounds exist for the legislation. Thus, this enactment should be sustained.

The defendant also contends that the Seattle curfew ordinance is unconstitutionally vague. He cites, as does the *808 majority, Seattle v. Drew, 70 Wn.2d 405, 408 , 423 P.2d 522 , 25 A.L.R.3d 827 (1967), for the proposition that:

A law that fails to give fair notice of what acts will be punished is violative of due process.

The defendant argues that the words “loiter, idle, wander, or play” as used in the Seattle curfew ordinance do not give fair notice of what acts will be punished, relying on Seattle v. Drew, supra, as an authority. To the contrary, I find the Drew case a complete answer to this contention.

Specifically, the Seattle curfew ordinance prohibits any minor under the age of 18 from “loitering, idling, wandering or playing” on or -in the streets, sidewalks, etc., between the hours of 10 p.m. and 5 a.m. Words in this type of ordinance are to be given their ordinary lay meaning. In the Drew case we determined that the word “loiter” as defined by Webster’s Third New International Dictionary (1961) meant:

fritter away time . . . be . . . unduly slow in doing something . . . remain in or near a place in an idle or apparently idle manner . . .

And the word “wander” as defined by said dictionary meant: “to move about without a fixed course, aim, or goal . . .” We then determined that said words do not connote any type of unlawful activity. In that case, the ordinance in question did not make any attempt to distinguish, define, or restrict the meaning of the words in question. In the instant case, the city has stated that all “frittering away of time, or moving about without a fixed course, or idling or playing” is prohibited by children under the age of 18 after 10 p.m. in the listed areas. Then to insure that the officers will have guidelines to determine whether or not a given child is “frittering away his time or moving about without a fixed goal,” etc., the city has gone to great lengths to spell out what types of behavior will not be deemed wandering, idling, loitering or playing. Thus going to and from work by a direct route is not within the ambit of the ordinance. Nor is going by a direct route to activities *809 sponsored by religious or educational organizations. Nor is running an errand within the ambit where one has written parental consent and is about some lawful business. So, too, a child accompanied by a parent or guardian after 10 p.m. is not within the ambit. The list of exceptions to the curfew ordinance is not all inclusive, to it could probably be added numerous other exceptions. However, the listed exceptions demonstrate by their very nature the types of activities which are outside the proscribed behavior. As we stated in the Drew case on page 410: “The law should be so drawn as to make it inapplicable to cases which obviously are not intended to be included within its terms.” The Seattle City Council has done just this in designing the Seattle curfew ordinance.

The fact that the Seattle curfew ordinance prohibits all “loitering, idling, wandering or playing,” and then provides examples of the type of behavior that is not within this category, distinguishes the instant case from the Drew case. In that case the defendant challenged the validity of Seattle Code 12.11.290, which provided:

It shall be unlawful for any person wandering or loitering abroad, or abroad under other suspicious circumstances, from one-half hour after sunset to one-half hour before sunrise, to fail to give a satisfactory account of himself upon the demand of any police officer.

The defendant contended that the terms of the ordinance were unconstitutionally vague. We agreed with the defendant and stated on page 410:

There is nothing in the ordinance that would enable him to know the dividing line between innocent loitering (for example window shopping) and criminal loitering. Loitering ordinances that fail to spell out this distinction have been struck down.

Seattle v. Drew, 70 Wn.2d, 405 , 423 P.2d 522 , 25 A.L.R.3d 827 (1967).

In the instant case, the city has provided a dividing line between criminal loitering and innocent loitering. All loitering is unlawful under the Seattle curfew ordinance. In *810 order to avoid its force between the hours of 10 p.m. and 5 a.m., one must be in a direct route to or from a given activity unless accompanied by a parent. We are not dealing with a satisfactory account type of ordinance as in the Drew case, nor are we dealing with “under suspicious circumstances.” There is nothing ambiguous about the Seattle curfew ordinance. It clearly states that children under the age of 18 after 10 p.m. must not “loiter, idle, wander or play” in the listed areas. If children are not in a direct route to or from a given activity and are in the listed areas, then they are “loitering, idling, wandering, or playing.”

The defendant also contends that the Seattle curfew ordinance is in violation of Const, art. 1, § 12, and the fourteenth amendment to the United States Constitution, in that it purports to grant, and withhold, basic freedoms from one class of citizens and not another.

We stated in State ex rel. O’Brien v. Towne, 64 Wn.2d 581, 582 , 392 P.2d 818 (1964), and cases cited therein, that:

The provisions of the state and federal constitutions which prohibit the granting of special privileges and immunities and guarantee equal protection of the laws, require that class legislation must apply alike to all persons within a class, and reasonable ground must exist for making a distinction between those within and those without a designated class; but within the limits of such restrictive rules, the legislature has a wide measure of discretion, and its determination, when expressed in statutory enactment, cannot be successfully attacked unless it is manifestly arbitrary, unreasonable, inequitable, and unjust.

(Italics mine.) In the instant case, the legislation applies alike to all persons under the age of 18. Prince v. Massachusetts, supra, indicates that reasonable grounds exist for designing legislation to protect children. The growth of a child is a gradual process. Children reach maturity at various ages. Therefore, the legislative determination that the age of 18 provides a basis for distinguishing between children and adults does not appear manifestly arbitrary, unreasonable, inequitable or unjust and thus should be sus *811 tained. See Hass v. Kirkland, 78 Wn.2d 929 , 481 P.2d 9 (1971).

In summary, there can be little doubt that the legislative authority of Seattle, by the enactment of the curfew ordinance, intended to exercise reasonable restraints on minor children wandering and loitering on the streets or in automobiles at any hour of the night, to correct the evils of mischief and the potential commission of crimes resulting therefrom, to the detriment of both the children and society.

The judgment of the trial court should be affirmed.

Hale, C.J., and Wright, J., concur with Hunter, J.