Jason E. Huber John R. Teare, Jr.
Forman & Crane, L.C. Mark H. Dellinger
Charleston, West Virginia Bowles Rice McDavid Graff &
Attorney for the Appellants Love, PLLC
Charleston, West Virginia
Attorney for the Appellees,
Mayor of and Chief of Police for
Michael W. Carey City of Charleston, and
Carey Hill & Douglas, PLLC City of Charleston
Charleston, West Virginia
Attorney for the Appellees,
Center for Community Interest
and West Side Neighborhood Association
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT did not participate.
JUDGE THORNSBURY sitting by temporary assignment.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
1. When the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment. Syllabus point 3, Willis v. O'Brien, 151 W. Va. 628, 153 S.E.2d
2. The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature. Syllabus point l, Smith v. State Workmen's
Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
3. A criminal statute must be set out with sufficient definiteness to give
a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by
statute and to provide adequate standards for adjudication. Syllabus point 1, State v.
Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974).
4. Statutes involving a criminal penalty, which govern potential First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by interpreting their meaning from the face of the statute.
Syllabus point 2, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974).
This appeal was brought by Anna Sale, by and through her next friend and parents, June and William Sale, petitioners below/appellantsSee footnote 1 1 (hereinafter collectively referred to as the Sales), from a final order of the Circuit Court of Kanawha County finding a curfew ordinance promulgated and enforced by the City of Charleston, et al., respondents below/appelleesSee footnote 2 2 (hereinafter collectively referred to as the City), constitutional and valid under the laws of this State.See footnote 3 3 After a careful review of the briefs and record in this case, we affirm the circuit court's order.
Violators of the curfew are subject to detention by law enforcement
authorities and may be adjudicated delinquent. According to the Sales, curfew violators
may be transported to their homes or to a holding facility until their parents can pick them
up. In addition, those individuals, who assist or acquiesce in the minor's disregard of the
stated time limits and who are found guilty of this infraction are guilty of a misdemeanor
and subject to a fine not to exceed $500 and/or a jail sentence of not more than thirty days.
Perceiving the imposition of a curfew to be an impermissible infringement
of their constitutional rights, the Sales instituted this civil action in the Circuit Court of
Kanawha County on March 24, 1998, seeking to enjoin enforcement of the ordinance. The
Sales alleged that the ordinance operates to deprive them of their constitutional rights to
equal protection, freedom of speech and association, due process, and freedom from
unreasonable searches and seizures. Furthermore, the Sales complained that the ordinance
violates W. Va. Code § 49-5-8(b) .See footnote 6
In addition, at least one parent/appellant
complained that the ordinance abrogated her constitutional right to parental privacy.See footnote 7
Following discovery, the circuit court held a hearing in this matter on July
15, 1998. Thereafter, on May 20, 1999, the circuit court issued its decision, ordering:
1. That Charleston City Code § 18-17(d)(11) is unconstitutional insofar as the Charleston City Council delegated to the police chief its legislative authority to create exceptions to prohibitions of the curfew ordinance, giving unbridled discretion to the police chief to issue permits without providing any meaningful standards by which the police chief may exercise his or her authority.
2. That Charleston City Code § 18-17(d)(11) must be interpreted so as to eliminate any discretion on the part of the chief of police, by requiring him or her to issue a permit when a parent or guardian makes a determination that there is a reasonable necessity for his or her child or ward to be in a public place during curfew hours;
3. The ordinance does not violate juveniles' equal
protection of the laws, even when subjected to strict scrutiny,
and is not overbroad or impermissibly vague;
4. The ordinance does not interfere with parents' right to raise their children as they see fit, free from undue interference by the State;
5. The ordinance is not invalid because it does not provide for an arrest protocol;
6. The ordinance does not make parents criminally liable for the actions of their children;
7. The ordinance does not violate the Fourth Amendment right to be free from unreasonable search and seizure; and
8. The ordinance does not violate the provisions of W. Va. Code § 49-5-8(b).
Subsequent to the issuance of the circuit court's order, on May 24, 1999, the Sales moved the circuit court to continue the stay of the ordinance's operation to permit an appeal of the circuit court's decision to this Court. By order entered June 2, 1999, the circuit court denied the motion for a stay of the curfew's implementation. As a result of the circuit court's adverse rulings, the Sales similarly requested this Court stay the ordinance's institution pending an appeal of the circuit court's decision on the merits. By order entered June 9, 1999, we denied the requested stay. The Sales then filed this appeal. We now consider the assignments of error.
This Court is also reminded that [w]hen the constitutionality of a statute is
questioned every reasonable construction of the statute must be resorted to by a court in
order to sustain constitutionality, and any doubt must be resolved in favor of the
constitutionality of the legislative enactment. Syl. pt. 3, Willis v. O'Brien, 151 W. Va.
628, 153 S.E.2d 178 (1967). Accord Syl. pt. 3, Donley v. Bracken, 192 W. Va. 383, 452
S.E.2d 699 (1994). Further, as was held in Syllabus point 1, in part, of State ex rel.
Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965), [c]ourts
are not concerned with questions relating to legislative policy. The general powers of the
legislature, within constitutional limits, are almost plenary. In considering the
constitutionality of an act of the legislature, the negation of legislative power must appear
beyond reasonable doubt. Accord Syl. pt. 4, Tony P. Sellitti Constr. Co. v. Caryl, 185
W. Va. 584, 408 S.E.2d 336 (1991). It is with the above-mentioned standards in mind
that we review the circuit court's order.
In support of this assignment of error, the Sales argue that because the
ordinance authorizes Charleston City Police officers to take custody of juveniles who
violate the ordinance, it contravenes the statute's clear intent to limit the instances in which
a minor may be taken into custody without a warrant or court order. In response, the City
asserts that the ordinance does not violate the statute because the statute pertains only to
proceedings in which a juvenile petition has been filed and that it does not apply to other
proceedings involving minors.
In this Court's analysis of W. Va. Code § 49-5-8(b), we are guided by the
legal principle that [t]he primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature. Syl. pt. 1, Smith v. State Workmen's Compensation
Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Wriston v. Raleigh County
Emergency Servs. Auth., 205 W. Va. 409, 417, 518 S.E.2d 650, 658 (1999) (When this
Court is called upon to construe a statute, our primary goal is to give effect to the intent
of the Legislature. (citation omitted)). Moreover, [i]n ascertaining legislative intent,
effect must be given to each part of the statute and to the statute as a whole so as to
accomplish the general purpose of the legislation. Syl. pt. 2, Smith, 159 W. Va. 108,
219 S.E.2d 361. Additionally, our case law admonishes us that [s]tatutes which relate
to the same subject matter should be read and applied together so that the Legislature's
intention can be gathered from the whole of the enactments. Syl. pt. 3, Smith, id. See
also Syl. pt. 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908) (A statute should be
so read and applied as to make it accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it being presumed that the legislators
who drafted and passed it were familiar with all existing law, applicable to the subject
matter, whether constitutional, statutory or common, and intended the statute to harmonize
completely with the same and aid in the effectuation of the general purpose and design
thereof, if its terms are consistent therewith.). After a thorough examination of W. Va.
Code § 49-5-8(b) and other pertinent statutes, we conclude that the ordinance does not
violate W. Va. Code § 49-5-8(b) for two reasons.
First, we believe municipalities have the authority to create curfew
ordinances pursuant to W. Va. Code § 8-12-5(44) .See footnote 9
This statute grants
municipalities general authority to create ordinances [t]o protect and promote the public
morals, safety, health, welfare and good order. Id. In addition, the authority of
municipalities to create curfew ordinances is implicitly recognized in the specific statutory
authority of counties to create curfew ordinances. W. Va. Code § 7-1-12  states,
in relevant part:
[i]n addition to all other powers and duties now conferred by law upon county commissions, such commissions are hereby authorized, by order duly entered of record, to adopt an ordinance which establishes a curfew for persons under eighteen years of age. It shall be unlawful for any person under eighteen years of age to violate any ordinance: Provided, That whenever the county ordinance enacted hereunder conflicts with that of any municipality, the municipal ordinance shall prevail.
(Emphasis added). Furthermore, in proceedings involving juveniles, the Legislature has specifically granted municipal courts authority to prosecute violations of curfew ordinances by juveniles. W. Va. Code § 49-5-2(d)  directs that, [no]twithstanding any other provision of this article, municipal courts have concurrent juvenile jurisdiction with the circuit court for a violation of . . . any municipal curfew ordinance which is enforceable. (Emphasis added).See footnote 10 10
In view of the legislative recognition that municipalities may create curfew
ordinances, we do not believe the Legislature intended to prevent municipalities from
enforcing such ordinances, which would be the necessary result were we to adopt the
City's interpretation of W. Va. Code § 49-5-8(b). It is the duty of this Court to avoid
whenever possible a construction of a statute which leads to absurd, inconsistent, unjust
or unreasonable results. State v. Kerns, 183 W. Va. 130, 135, 394 S.E.2d 532, 537
Second, we believe that the enforcement of the curfew in this case is
consistent with the restrictions of W. Va. Code § 49-5-8(b). This statute authorizes a
juvenile to be taken into custody without a warrant or court order only under certain
specified conditions. One of these conditions is when [g]rounds exist for the arrest of an
adult in identical circumstances[.]See footnote 11
See Syl. pt. 4, State v. Ellsworth, 175 W. Va. 64,
331 S.E.2d 503 (1985) (Under both W. Va. Code, 49-5-8(a) and -8(b), the grounds for
taking a juvenile into custody where the juvenile has allegedly committed a criminal act
are the same as for the arrest of an adult.). Under this provision, a juvenile may be taken
into custody without a warrant or court order for committing an offense in the presence
of an officer, because an adult may be arrested without a warrant or court order for
committing an offense in the presence of a police officer.See footnote 12
See Syl. pt. 3, State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974) (A municipal police officer has no
authority, at common law or by statute, to make a warrantless arrest for a misdemeanor
of a person who does not commit such an offense in his presence.). Similarly, in the case
sub judice, the ordinance authorizes the police to take into custody, without a warrant or
court order, any juvenile who violates the ordinance in the officer's presence. This
authority is not inconsistent with W. Va. Code § 49-5-8(b). Therefore, we find that the
circuit court was correct in finding the ordinance did not violate the statute.
As a preliminary matter, we note that under the strict scrutiny test, [i]f the
challenged [law] affects the exercise of a fundamental right or is based upon a
constitutionally suspect criterion, the law will not be sustained unless the [government] can
prove that the classification is necessary to the accomplishment of a compelling state
interest. Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 594, 466 S.E.2d
424, 445 (1995) (citations omitted). Pursuant to the rational basis test, a law will be
sustained so long as it 'is rationally related to a legitimate state interest.' Id. (quoting City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87
L. Ed. 2d 313, 320 (1985)). We will separately determine whether strict scrutiny or
rational basis is the appropriate test for each of the two constitutional challenges.
1. Due process challenge. The Sales contend that the ordinance infringes
upon their fundamental right to free movement and association [and] is therefore subject
to strict scrutiny.See footnote 14
This is a due process argument. The United States Supreme Court
has interpreted the Fifth and Fourteenth Amendments' guarantee of 'due process of law'
to include a substantive component, which forbids the government to infringe certain
'fundamental' liberty interests at all, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores,
507 U.S. 292, 301-02, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993) (citations
omitted). It has also been held that constitutional concepts of personal liberty unite to
require that all citizens be free to travel throughout the length and breadth of our land
uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this
movement. Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329, 22
L. Ed. 2d 600, 612 (1969), overruled in part on other grounds by Edelman v. Jordan, 415
U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). See Spradling v. Hutchinson, 162
W. Va. 768, 253 S.E.2d 371 (1979) (finding an employment residency requirement
unconstitutional because it infringed upon the federal constitutional right to travel). But
see Morgan v. City of Wheeling, 205 W. Va. 34, 516 S.E.2d 48 (1999) (finding an
employment residency requirement did not infringe upon the federal constitutional right
While the United States Supreme Court has recognized a general right to freedom of movement for adults, it has not specifically extended this right to juveniles. The City correctly acknowledges that the United States Supreme Court has specifically indicated that the right of freedom of movement for juveniles is subject to a different standard than that applicable to adults. In addressing a juvenile's interest in the freedom of movement during pretrial detention, the United States Supreme Court made the following observation:
But that interest must be qualified by the recognition that
juveniles, unlike adults, are always in some form of
custody. . . . Children, by definition, are not assumed to have
the capacity to take care of themselves. They are assumed to
be subject to the control of their parents, and if parental
control falters, the State must play its part as parens
patriae. . . . In this respect, the juvenile's liberty interest
may, in appropriate circumstances, be subordinated to the
State's parens patriae interest in preserving and promoting
the welfare of the child.
Schall v. Martin, 467 U.S. 253, 265, 104 S. Ct. 2403, 2410, 81 L. Ed. 2d 207, 217-18 (1984) (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 1401, 71 L. Ed. 2d 599, 615 (1982)) (internal citations omitted).
Nevertheless, the Sales urge this Court to recognize that juveniles have a
fundamental right to freedom of movement. In support of their argument, the Sales cite
the decision in Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981). We do not,
however, interpret Johnson as recognizing that juveniles have a constitutional right to
freedom of movement. Johnson, invalidated the curfew ordinance at issue in that case,
by applying the overbreadth doctrine.
On the other hand, the City requests this Court to follow the decision in
Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999), to find that juveniles
do not have a constitutional right to freedom of movement. In Hutchins, a federal district
court found that a curfew ordinance violated the appellees' fundamental right to freedom
of movement. On appeal, the appellate court acknowledged that if juveniles had a
constitutional right to freedom of movement, then the government impingement on a
substantive fundamental right to free movement would be measured under a strict scrutiny
standard and would be justified only if the infringement is narrowly tailored to serve a
compelling state interest. . . . But does such a substantive right exist? Hutchins, 188
F.3d at 536 (internal citations omitted).
The court of appeals in Hutchins answered its rhetorical question by finding
that juveniles did not have a fundamental constitutional right to freedom of movement.
We are rather doubtful that substantive due process, those constitutional rights that stem from basic notions of ordered liberty deeply rooted in [our] history and tradition,. . . can be so lightly extended. On the other hand, we recognize that a hypothetical municipal restriction on the movement of its citizens, for example, a draconian curfew, might bring into play the concept of substantive due process.
Be that as it may, there is an important caveat to bear in mind when considering potential extensions of substantive due process, which has at times been a treacherous field.. . . The Supreme Court has warned us that our analysis must begin with a careful description of the asserted right for the more general is the right's description, i.e., the free movement of people, the easier is the extension of substantive due process. . . . And the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.. . . For that reason we must ask not whether Americans enjoy a general right of free movement, but rather whatever are the scope and dimensions of such a right (if it exists), do minors have such a substantive right? Do they have the right to freely wander the streets--even at night? . . .
We think that juveniles do not have a fundamental right to be on the streets at night without adult supervision. The Supreme Court has already rejected the idea that juveniles have a right to come and go at will because juveniles, unlike adults, are always in some form of custody,. . . and we see no reason why the asserted right here would fare any better. That the rights of juveniles are not necessarily coextensive with those of adults is undisputed, and unemancipated minors lack some of the most fundamental rights of self-determination--including even the right of liberty in its narrow sense, i.e., the right to come and go at will.. . . While appellees claim that this reasoning obscures the difference between parental custody and governmental custody, appellees necessarily concede that juveniles are always in some form of custody. Not only is it anomalous to say that juveniles have a right to be unsupervised when they are always in some form of custody, but the recognition of such a right would fly in the face of the state's well-established powers of parens patriae in preserving and promoting the welfare of children. The state's authority over children's activities is unquestionably broader than that over like actions of adults . . . . And it would be inconsistent to find a fundamental right here, when the [Supreme] Court has concluded that the state may intrude upon the freedom of juveniles in a variety of similar circumstances without implicating fundamental rights. . . .
Neither does the asserted right here have deep roots in our history and tradition. As the District [Court] noted, juvenile curfews were not uncommon early in our history, . . . nor are they uncommon now . . . . That juvenile curfews are common is, of course, not conclusive in determining whether they comport with due process, but the historical prevalence of such laws is plainly worth considering in determining whether the practice 'offends some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental.'. . . In sum, neither history nor precedent supports the existence of a fundamental right for juveniles to be in a public place without adult supervision during curfew hours, and we decline to recognize one here.
188 F.3d at 538-39 (internal citations omitted)(footnote omitted).
We find the reasoning in Hutchins persuasive. Therefore, we decline to rule that juveniles have a constitutional right to freedom of movement. Accordingly, the rational basis test is the proper tool for determining whether the ordinance infringes upon the Sales' freedom of movement.See footnote 15 15
Under the rational basis test, a law will be sustained so long as it 'is rationally related to a legitimate state interest.' Appalachian Power, 195 W. Va. at 594, 466 S.E.2d at 445 (quoting Cleburne Living Ctr., Inc., 473 U.S. at 440, 105 S. Ct. at 3254, 87 L. Ed. 2d at 320). The Sales concede that the City has a legitimate interest in the welfare of juveniles. However, the Sales assert that there is no evidentiary nexus between juvenile curfews and the purported goals of reducing juvenile crime and victimization[.] The record shows differently. During the lower court proceedings, the City presented sufficient evidence to justify infringing upon the movement of juveniles during specific periods of time. The City's evidence establishes that there was a 27.40% increase in juvenile violent crimes and drug offenses during the period 1993-1996. The City also provided the trial court with statistical evidence showing a summary of the number of juveniles arrestedSee footnote 16 16 and victimized by crimeSee footnote 17 17 in the City of Charleston for each hour of the day, from July 1, 1995, to October 31, 1997. There also was evidence demonstrating a reduction in juvenile arrests and victimization in selected cities which had implemented juvenile curfews. The Sales presented expert testimony disputing the effectiveness of curfews on juvenile crimes and juvenile victimization. However, the trial court did not find such testimony persuasive. Neither do we.
In sum, although the curfew ordinance infringes upon the freedom of
movement of juveniles, it is rationally related to the City's legitimate interest in their
2. Equal protection challenge. The Sales further suggest that juveniles are unfairly discriminated against by the curfew ordinance because of their ages. Therefore, strict scrutiny should be used in examining the ordinance. This is an equal protection claim. We have held that [t]he concept of equal protection of the laws is inherent in article three, section ten of the West Virginia Constitution[.] Syl. pt. 3, in part, Robertson v. Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988). While we have recognized an equal protection guarantee under the state constitution, this Court has never recognized youth as a suspect classification for the purpose of a strict scrutiny analysis. As we have previously noted, [t]he list of suspect criteria includes race, national origin, and alienage, and the scrutiny to be applied to laws that engage in such distinctions is the most exacting. Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 594, 466 S.E.2d 424, 445 (1995) (citation omitted).See footnote 18 18 See also Morgan v. City of Wheeling, 205 W. Va. 34, 43, 516 S.E.2d 48, 57 (1999) (Concerning suspect or quasi-suspect criteria, these categories include race, national origin, alienage, gender and illegitimacy, none of which are present here. (citation omitted)); Israel by Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W. Va. 454, 461, 388 S.E.2d 480, 487 (1989) (Classifications relating to race, alienage, or national origin have always been subject to strict judicial scrutiny[.]). Although the Sales invite this Court to extend the realm of suspect classifications to include youth, we decline to do so. Thus, the rational basis test is the proper legal principle for determining whether the ordinance unfairly discriminates against the Sales.See footnote 19 19
While we have determined that the rational basis test applies to a claim of
discrimination based upon youth, we need not apply the test to the Sales' claim because
we deem it waived. The sum total of the Sales' purported equal protection argument that
is contained in the brief is as follows: The ordinance treats all minors the same even
though an exceedingly small percentage commit crimes. The [E]qual Protection Clause
forbids such a crude grouping when fundamental rights are at stake, and limiting the
curfew's hours and providing exceptions does not diminish this shortcoming. This
purported constitutional legal argument is unacceptable for the purpose of review by this
Court. Issues not raised on appeal or merely mentioned in passing are deemed waived.
Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506 S.E.2d 578,
583 n.10 (1998).
In the case sub judice, the Sales argued to the trial court that the ordinance
was vague and impinged upon guarantees under the First Amendment of the federal
constitution, because juveniles would not have a clear concept of what activities are
encompassed by the [ordinance's] exception and what activities would not be encompassed
by the exception.
The curfew ordinance in question contains various exceptions to its
application, including one for First Amendment activity being engaged in by juveniles.
The circuit court found that the ordinance was not unconstitutionally vague with respect
to the First Amendment exception:
Simply stated, any exception to a curfew ordinance that attempts to protect First Amendment rights is going to be somewhat vague, because the First Amendment is stated in general terms. It is through decisions of the courts that the limits of constitutional freedoms and limits of restrictions on those freedoms is determined. The Court cannot simply declare the ordinance unconstitutional because some, or even all, juveniles who may be affected by it are unaware of all of the limits and restrictions, as determined by court decisions.
Stated differently, the fact that the ordinance may be vague
because there are some gray areas does not render it
unconstitutional in its entirety.
The circuit court supported its reasoning by relying on the decision in Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998), cert. denied, Schleifer ex rel. Schleifer v. City of Charlottesville, 526 U.S. 1018, 119 S. Ct. 1252, 143 L. Ed. 2d 349 (1999). Schleifer involved a vagueness challenge to an ordinance that had a First Amendment exception identical to that provided by the City's ordinance in the instant case. In its rejection of the vagueness challenge, the appellate court in Schleifer held:
We decline to punish the City for its laudable effort to respect the First Amendment. . . . A broad exception from the curfew for such activities fortifies, rather than weakens, First Amendment values. . . . If councils draft an ordinance with exceptions, those exceptions are subject to a vagueness challenge. If they neglect to provide exceptions, then the ordinance is attacked for not adequately protecting First Amendment freedoms. It hardly seems fitting, however, for courts to chastise elected bodies for protecting expressive activity. The Charlottesville ordinance is constitutionally stronger with that protection than without.
Schleifer, 159 F.3d at 853 (internal citation omitted) (footnote omitted).
We agree with the circuit court's reasoning and its reliance on Schleifer. The
exception in the ordinance complained of states that it is not applicable to juveniles
[e]xercising First Amendment rights protected by the United States Constitution such as
the free exercise of religion, freedom of speech, and the right of assembly. Undoubtedly
there are gray areas in this exception, as attested to by the legion of judicial opinions in
Anglo-American jurisprudence that have addressed First Amendment rights. The circuit
court was, therefore, correct in finding that it is only through judicial case-by-case
evaluations that the contours of the ordinance's First Amendment exception is to be tested
The Sales also contend that many of the terms in the ordinance are undefined,
and therefore the ordinance is unconstitutionally vague. Some of the terms complained of
include: errand, direct route, establishment, owner/operator, public place, and
remain. The circuit court found that many of the terms challenged by the Sales were,
in fact, expressly defined by the ordinance. For those terms that were not in fact defined,
the circuit court found that the terms were not vague. Upon review of the terms that the
ordinance does not define, we agree with the trial court that persons of ordinary
intelligence know what the terms mean.
The circuit court relied upon the decisions in Qutb v. Strauss and Schleifer
v. Charlottesville to find that the ordinance's intrusion upon Dr.Freas' parental rights were
minimal. The circuit court found
[t]he Charleston ordinance permits a juvenile to be or remain in a public place when accompanied by a parent, guardian or an adult who is 18 years of age, or older, who is authorized by the parent or guardian to take the parent's or guardian's place in accompanying the juvenile for a designated period of time and purpose. In this regard, the Charleston ordinance gives parents or guardians grater authority to permit their children to remain in public than did [the ordinance in Qutb v. Strauss], and is virtually identical to the [ordinance in Schleifer by Schleifer v. City of Charlottesville]. Further, when interpreted to eliminate the police chief's unbridled discretion to issue permits allowing juveniles to be in public places during curfew hours, and to allow parents or guardians to determine when reasonable necessity exists for juveniles in their care to be in public places during curfew hours, the ordinance does not interfere with parental rights.
We agree with the finding of the circuit court and the decisions in Qutb and Schleifer that, while the ordinance does impact on Dr. Freas' parental rights, the impact is too minimal to constitute an unconstitutional infringement upon such rights.See footnote 22 22
The purpose of this ordinance is to protect juveniles from victimization and exposure to criminal activity by establishing a curfew for juveniles under the age of eighteen years in the City of Charleston. The Youth Protection Ordinance is intended to reinforce and promote the role of the parent in raising and guiding children, and promote the health, safety, and welfare of both juveniles and adults by creating an environment offering better protection and security for all concerned.
Circuit Court, and affirm its decision, although for different reasons than those expressed by the lower court.).
We also note that the Sales contend under their vagueness challenge that application of the ordinance invites discriminatory enforcement. This argument is inappropriate and will not be considered because the challenge made to the ordinance by the Sales is a facial challenge.