# City of Panora v. Simmons

> Supreme Court of Iowa · August 16, 1989 · 445 N.W.2d 363

URL: https://www.frixlaw.com/law-library/cases/9692658

## Case

- **Full name:** CITY OF PANORA, Appellee, v. David SIMMONS, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** August 16, 1989
- **Citations:** 445 N.W.2d 363; 83 A.L.R. 4th 1035; 1989 Iowa Sup. LEXIS 254; 1989 WL 91938
- **Precedential status:** Published
- **Opinion:** Dissent by Lavorato
- **Judges:** Larson, Lavorato, Schultz, Carter, Neuman
- **Cited by:** 32 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/9692658

## How later opinions describe it (automated extraction)

- holding that a curfew was a minimal infringement on parents’ rights
- noting that a statute will survive strict scrutiny analysis only if it is narrowly drawn to serve a compelling state interest

## Opinion text

LAVORATO, Justice
(dissenting).
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of working and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 , 63 S.Ct. 1178, 1185-86 , 87 L.Ed. 1628, 1638 (1943). Justice Jackson wrote these eloquent words about fundamental rights forty-six years ago. They are just as true today as they were then.
Recently Justice Marshall warned against sacrificing these fundamental rights to meet some perceived emergency:
The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government’s deployment in that war of a particularly draconian weapon — the compulsory collection and chemical testing of railroad workers’ blood and urine — comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History . teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation camp cases, and the Red Scare and McCarthy-Era internal subversion cases, are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
Skinner v. Railway Labor Executives Ass’n, — U.S. -, -, 109 S.Ct. 1402, 1422 , 103 L.Ed.2d 639, 671-72 (1989) (citations omitted) (Marshall, J., dissenting).
Here the city passed the curfew ordinance to combat juvenile crime and to control a lack of parental supervision in the community. The city listed the first reason in its brief and mentioned the second in *371 oral arguments. For reasons that follow, I do not share the majority’s view that this curfew ordinance is a reasonable response to either problem. The response is exactly the kind of unconstitutional excess Justice Marshall warned against.
The majority refuses to consider Simmons’ claim that the curfew ordinance violates his right to travel under the first amendment. It relies on Simmons’ alleged failure to raise the issue in district court. I think Simmons did raise the issue, and the majority should have addressed it. In his motion to dismiss, Simmons alleged that the ordinance was unconstitutional because it “prohibits people from gathering, walking, or loitering in public places” — all activities encompassed in the right to travel under the first amendment. The district court apparently thought Simmons had raised the issue because it spoke directly to the first amendment in its oral ruling:
THE COURT: The court has considered your constitutional challenge under the first amendment.... When I listened to your arguments those were all the red flags that were raised, although you didn’t put it in legal terms, you raised the ... first amendment and the court has considered [it] and has considered your motion to dismiss and everything contained therein....
Unlike the majority, I think the United States Supreme Court clearly decided that traveling, whether interstate or intrastate, is a fundamental right under the first amendment. Papachristou v. City of Jacksonville, 405 U.S. 156, 164 , 92 S.Ct. 839, 844 , 31 L.Ed.2d 110, 116-17 (1972); Aptheker v. Secretary of State, 378 U.S. 500, 520 , 84 S.Ct. 1659, 1671 , 12 L.Ed.2d 992, 1005-06 (1964) (Douglas, J., concurring) (“Freedom of movement is kin to the right of assembly and to the right of association.”); Shapiro v. Thompson, 394 U.S. 618, 629-30 , 89 S.Ct. 1322, 1329 , 22 L.Ed.2d 600, 612-13 (1969); see also Johnson v. City of Opelousas, 658 F.2d 1065, 1072 (5th Cir.1981). A hallmark of a free society, the right to travel, is perhaps the most cherished of all our fundamental rights. Because it enjoys the status of a fundamental right, the right to travel is protected against state intrusions by the due process clause of the fourteenth amendment. Shapiro, 394 U.S. at 629-30 , 89 S.Ct. at 1328 , 22 L.Ed.2d at 612-13 (1969).
When faced with a claim that a law infringes upon a fundamental right, courts must apply a strict scrutiny analysis. Under a strict scrutiny analysis, a law is constitutional only if the government can show that the law is both necessary and narrowly drawn to serve a compelling governmental interest. Shapiro , at 638, 89 S.Ct. at 1333 , 22 L.Ed.2d at 617 (1969).
Like adults, children do have fundamental rights that the government must respect. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 , 89 S.Ct. 733, 739 , 21 L.Ed.2d 731, 740 (1969). But the government has the power to place certain restrictions upon the conduct of children that would be unconstitutional if placed upon the conduct of adults. Bellotti v. Baird, 443 U.S. 622, 634 , 99 S.Ct. 3035, 3043 , 61 L.Ed.2d 797, 807 (1979).
In Bellotti , a plurality of the Court gave three reasons to justify the difference in treatment: (1) the peculiar vulnerability of children; (2) their inability to make critical decisions in an informed, mature manner; and (3) the importance of the parental role in child rearing. Id. One commentator sees each of these reasons as reflecting a different aspect of the Court’s assumption that children are not fully competent to exercise their rights. Note, Assessing The Scope of Minors’ Fundamental Rights: Juvenile Curfews and The Constitution, 97 Harv.L.Rev. 1163, 1173 (1984).
Because these reasons are tailored to children’s unique developmental and emotional vulnerabilities, they give us a unique form of strict scrutiny pertaining solely to children. The author of the above note dubbed this unique scrutiny, “compelling for children.” Id. at 1171.
A governmental restriction serves an interest “compelling for children” only if the restriction is narrowly drawn and only if one of the three Bellotti reasons justifies it. The analysis does not mean that children’s rights are any less fundamental *372 than adults’; it only means that the special governmental interest must justify infringement of children’s rights. If the government interest is not unique to children in terms of the Bellotti reasons, the government must then treat adults and children the same. See 97 Harv.L.Rev. at 1172-73.
Several courts have used this analysis in declaring unconstitutional juvenile curfew ordinances like the one here. See Johnson, 658 F.2d at 1073-74 (5th Cir.1981); Waters v. Barry, 711 F.Supp. 1125, 1136-37 (D.D.C.1989). Applying the analysis to the Pa-nora ordinance, I conclude there is no basis for treating children different from adults: the ordinance serves no governmental interest “compelling for children.”
The first Bellotti reason, the peculiar vulnerability of children, appears to be a sound basis for a juvenile curfew. Physically, children are generally smaller, weaker, and less capable of taking care of themselves than are adults. But if the government could merely use such vulnerabilities to justify juvenile curfews, the government could easily cite similar concerns to justify barring the elderly or physically impaired from the streets. The government could also extend such reasoning to exclude women or members of particular racial groups from certain areas of some cities. See 97 Harv.L.Rev. at 1175. Courts, however, have declared curfews affecting adults unconstitutional except when the government has temporarily imposed them during a state of emergency. See, e.g., Yasui v. United States, 320 U.S. 115 , 63 S.Ct. 1392 , 87 L.Ed. 1793 (1943) (infamous emergency curfew imposed upon citizens of Japanese ancestry during World War II upheld as constitutional exercise of emergency war powers). Because physical vulnerability alone does not sufficiently distinguish children from adults, the government cannot use this • as an excuse to justify otherwise impermissible curfews aimed solely at children. See 97 Harv.L.Rev. at 1175.
The Court in Bellotti suggested that the government may, in some cases, require a doctor to notify a pregnant teen-ager’s parents of her decision to have an abortion. (The Court struck down a state statute with such a provision because the statute had several other unreasonably restrictive provisions.) The Court recognized that this notice requirement restricted in some manner children’s right to privacy. But the Court also recognized that a child in such circumstances faces an unavoidable decision in which either choice may result in serious emotional consequences. The Court reasoned that children simply do not have the maturity to make such critical decisions alone. Bellotti, 443 U.S. at 649 , 99 S.Ct. at 3051 , 61 L.Ed.2d at 817 . This thinking forms the basis for the second Bellotti reason: the inability of children to make critical decisions in an informed, mature manner.
What critical decisions can children possibly face when they leave the home to do an errand for a parent, or to visit a friend, or to skateboard in a public place? I fail to see how this ordinance serves the “compelling for children” interest of protecting children from the potentially dangerous consequences of a critical decision.
I also fail to see how the ordinance promotes the third Bellotti reason: the parental role in child rearing. If anything, I think the ordinance inhibits the role. See id. at 638 , 99 S.Ct. at 3035 , 61 L.Ed.2d at 810 ; 97 Harv.L.Rev. at 1178.
The law recognizes that child rearing is the role of the parent, not the government. The government can interfere only when parents abuse or neglect their children. See generally Iowa Code ch. 232 (1989). The least amount of governmental interference furthers two goals: it preserves family autonomy and it promotes respect for governmental authority.
When the government passes a law that usurps parental authority over children’s liberty, as this ordinance does, then it undercuts both goals. See 97 Harv.L.Rev. at 1179. Family autonomy suffers because the government, not the parents, tells children what liberties they can experience and when.
When the government imposes undue restrictions on children’s liberties, children *373 may grow up believing they have less rights than they were led to believe they had. This belief can only engender disrespect for governmental authority. See Foster and Freed, A Bill of Rights for Children, 6 Fam.L.Q. 343, 375 (1972) (“[U]nless children are treated fairly and their rights are respected, it is idle to speak down to them about duty and responsibility.”). This belief can also engender another equally disturbing result: children may discount important principles of our government as mere platitudes. See 97 Harv.L.Rev. at 1180. To the extent this happens, all citizens will eventually suffer.
For children to have a true sense of all the liberties and privileges this country has to offer, they must be allowed to experience them to the greatest extent possible. A government that promotes this principle is a government that is worthy of respect in the eyes of children. See id. at 1179. A government that ignores this principle does a disservice to all of us.
Simmons’ father captured the essence of these bedrock principles in his argument to the district court:
THE COURT: The question that the court posed, that the court did not have an opportunity to have answered was whether there is some contention that a dollar fine is an inappropriate sentence in this case.
MR. SIMMONS: It is not the money. I am not here because of that, as you know.
THE COURT: I don’t know why you are here, sir. I’m sorry.
MR. SIMMONS: Well, it has got something to do with the love of this country. It has got something to do with why my father and father-in-law spent three or four years overseas. It has got something to do with freedom and rights of our young. The rights of me. Do you know there are some of us who love this country enough that we will stand up and try to keep it together? How many times is it going to take before you can break it, before this is gone? How are we going to show our children this? If they are pushed over, they do not have these freedoms, how are we going to teach them?
As I said earlier, the city passed this ordinance to combat juvenile crime and control the lack of parental supervision in the community. This thinking summarily brands all children in the community as potential law breakers and all parents as incapable of exercising parental supervision. As to the first reason, the Supreme Court soundly rejected curtailments of liberty based upon anticipation of criminal activity. Papachristou, 405 U.S. at 171 , 92 S.Ct. at 848 , 31 L.Ed.2d at 120 (“[T]he implicit presumption in these generalized vagrancy standards — that crime is being nipped in the bud — is too extravagant to deserve extended treatment.”); Tinker, 393 U.S. at 509-11 , 89 S.Ct. at 738-39 , 21 L.Ed.2d at 739-40 (mere apprehension of further disruption is an insufficient ground for limiting minor’s freedom of expression); see also 97 Harv.L.Rev. at 1177. As to the second reason, I simply do not believe—without proof — that there has been a total breakdown of parental supervision among families in Panora.
Despite these avowed reasons for the ordinance, the city failed to prove any juvenile crime in its community approaching a level of emergency. Nor did it prove that the vast majority of its parents has lost parental control. So, not only did the city fail to prove a “compelling for children” interest justifying this ordinance, it also failed to prove any necessity for it.
If juvenile crime is a problem in Panora, there are less drastic and more effective means available to combat it. For example, police may simply arrest juvenile offenders. See Johnson, 658 F.2d at 1071-72 , Allen v. Bordentown City, 216 N.J.Super. 557, 568 , 524 A.2d 478, 484 (1987). They should not, however, restrict the liberty of all to combat the illegal activities of a few. See 97 Harv.L.Rev. at 1178.
One writer suggests another example: a juvenile court can, if it wishes, impose a curfew on juvenile offenders once the court determines the offenders have shown an inability to conduct themselves properly in public. L. Houlgate, The Child & The *374 State, 109-10 (1980). This approach would have the beneficial effect of dispensing justice in individual cases “while avoiding sweeping, class-based ordinances that are likely to result in injustice to many individuals.” 97 Harv.L.Rev. at 1178 n. 75.
I have two more concerns. First, the city asks us to approve a type of law that has an ugly history. Born of prejudice, curfew ordinances have risen in popularity during some sad times in this country. Before the civil war,, curfew laws in the south designated times when slaves could be on the streets. See Curfew Statute, Ordinance, or Proclamation, 59 A.L.R.3d 321 , 326 (1974). During the late 1800s, immigrants were arriving in this country in great numbers. Though not treated as badly as slaves, the immigrants nevertheless faced prejudice. . Curfew ordinances again became popular because of fears that immigrants would not control their children. See 97 Harv.L.Rev. at 1164 n. 9. In 1941 emergency curfews were imposed upon American citizens of Japanese ancestry. Ironically, some of our most decorated heroes in World War II were children of these Americans. See 59 A.L.R.3d at 349-51.
Second, the majority’s heavy reliance on Bykofsky v. Middletown and People in Interest of J.M. is misplaced. Simply put, Bykofsky is wrong and we should not follow it. See Johnson, 658 F.2d 1065 ; Waters, 711 F.Supp. at 1136 (refusing to follow Bykofsky). Bykofsky recognizes that the curfew there would have infringed the fundamental rights of adults. Bykofsky, 401 F.Supp. at 1254-55. Yet the court concluded that the ordinance affected no fundamental rights of minors and proceeded to apply a rational basis analysis to uphold it. Id. at 1265-66.
The reasoning in Bykofsky was backward. The court held that because the interests served by the curfew ordinance outweighed any infringement of the rights of minors, the ordinance affected no fundamental rights. Id. at 1265.
The court in Bykofsky should have applied a two-step analysis. First, it should have determined the right level of scrutiny by deciding whether a fundamental right was at stake; then, it should have considered whether the government’s interest outweighed that right. The court simply relied on the fact that it was dealing with children to justify its use of a rational basis analysis. See 97 Harv.L.Rev. 1166 and n. 17. Because a fundamental right was clearly involved, the court should have used a strict scrutiny analysis as suggested in Bellotti . Perhaps the result would have been different had the court had the benefit of the Bellotti decision.
The Colorado Supreme Court in People in Interest of J.M. used the same faulty reasoning. The Colorado court went one step further by using the three Bellotti reasons to justify its conclusion that children do not have a fundamental right to travel. This approach is also wrong. Bel-lotti presupposes that a fundamental right exists and simply uses the three reasons to determine whether a governmental restriction can be placed on a fundamental right belonging to children. A “compelling for children” strict scrutiny analysis rather than a rational basis analysis is, therefore, the proper one under Bellotti . I think the majority here would agree that if this strict scrutiny analysis were used, the Panora ordinance would fail to pass constitutional muster.
The ordinance here barely survives a constitutional challenge on a narrow ground and on a wrong analysis. I question whether such an ordinance would survive a challenge based on overbreadth and denial of equal protection, other grounds many courts have used to declare curfew ordinances unconstitutional.
I would declare the ordinance here unconstitutional because it violates a child’s fundamental right to travel under the first amendment. The vast majority of courts that have considered juvenile curfew ordinances have, for one reason or another, declared them unconstitutional. We should join these courts and resist any knee-jerk reaction to restrict fundamental rights because of some perceived emergency. Some *375 day we may come to regret the decision the majority reaches today.
I would reverse.
SCHULTZ, CARTER, and NEUMAN, JJ., join this dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692658. Public record. Not legal advice.