City of Seattle v. Pullman

514 P.2d 1059, 82 Wash. 2d 794, 1973 Wash. LEXIS 726

• Court: Washington Supreme Court
• Decided: September 27, 1973
• Docket: 42313
• Status: Published

Opinions

Utter, J.

Defendant Ronny Gene Pullman was charged and convicted in both Seattle Municipal Court and on appeal in superior court with violation of a Seattle ordinance which prohibits accompanying a child during curfew hours.¹

We find the ordinance unconstitutional on two grounds. It is first too vague, and due process is violated where persons of common intelligence must guess at its meaning at the peril of their liberty. It secondly is an invalid exercise of the city’s police power because it makes no distinction between conduct calculated to harm and that which is essentially innocent. By the language of this statute, any minor under the age of 18 could be arrested for standing or playing on the sidewalk in front of his home at 10:01 p.m. on a warm summer evening.

We do not prohibit the state from imposing reasonable controls on the conduct of minor children during evening hours, but do require a constitutionally precise statement of both the criminal activity and the conduct calculated to harm from which the state seeks to protect itself.

Defendant Pullman, a high school senior, was arrested at approximately 4:30 a.m. on May 23, 1971 after the arresting officer observed, followed, and stopped the defendant in his automobile because the vehicle was emitting excessive amounts of noise. After stopping the vehicle, the officer discovered that it lacked a proper muffler and that the defendant accompanied two minor females. The defendant had attended a party with the two minor girls and told the arresting officer they “had decided to take a drive around the beach before going home.” There is no evidence that the defendant’s vehicle was wandering, or that the passengers were loitering or idling or playing.

The defendant has standing to challenge the constitutionality of sections 2 and 4 of ordinance No. 95984. One of the necessary elements for conviction for accompanying a child during curfew hours under section 4 is an actual violation by the minor of the curfew ordinance, section 2. His conviction cannot stand without a determination that a valid curfew ordinance was violated.

As this court most recently stated in Tarver v. City Comm’n, 72 Wn.2d 726, 735, 435 P.2d 531 (1967):

A litigant who challenges the validity of an ordinance must claim infringement of an interest peculiar and personal to himself, as distinguished from a cause’ of dissatisfaction with the general framework of the ordinance. State v. Lundquist, 60 Wn. (2d) 397, 401, 374 P. (2d) 246 (1962) and cases cited.

The defendant has claimed such an infringement and has. standing to challenge the entire ordinance.

Those cases² cited by the city in its challenge to the defendant’s standing to question the constitutionality of the-curfew ordinance are not contrary to our holding here because the validity of the ordinance or statute therein questioned did not infringe upon any of the complainant’s personal interests. However, here the defendant’s constitutional challenge cannot be rejected, for the ordinance under which he was charged, section 4, contains as one of its elements the challenged provision, the curfew ordinance, section 2. Alves v. Justice Court, 148 Cal. App. 2d 419, 306 P.2d 601 (1957).

Defendant claims that section 2 is vague and an unreasonable exercise of the city’s police power and therefore unconstitutional. We agree. The concept of “void for vagueness” is born out of the constitutional due process requirements of fair notice,³ and of clear standards in laws to prevent arbitrary and discriminatory enforcement by police and inconsistent application by judges and juries.⁴

It is fundamental that no ordinance which requires persons of common intelligence to guess at its meaning at the peril of life, liberty, or property may constitutionally be permitted to stand. “All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939). The first essential of due process is violated where citizens, law enforcement officers, or the finder of guilt (be it jury or judge) must speculate as to the standards of guilt because of the vagueness of the ordinance or statute.

On the language here at issue — “to loiter, idle, wander or play” — Seattle v. Drew, 70 Wn.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967), is controlling. In Drew, on the grounds the ordinance was vague and beyond the municipal police powers, we struck down the Seattle ordinance making it a crime for persons loitering abroad, or abroad under suspicious circumstances, to fail to give a satisfactory account of themselves upon demand by a police officer. After providing the dictionary meanings of “loiter” and “wander” we found “the lay meaning of loitering cannot reasonably connote unlawful activity.” Seattle v. Drew, supra at 409. In so doing, we cited with approval the finding in Hawaii v. Anduha, 48 F.2d 171, 173 (9th Cir. 1931) that the words idle, loiter, loaf “have no sinister meaning and imply no wrongdoing or misconduct on the part of those engaged in the prohibited practices.” We again affirm this ruling, as we recently did in State v. Oyen, 78 Wn.2d 909, 480 P.2d 766 (1971).⁵

As in Drew, we have “the word[s] standing alone, or otherwise unqualified by ascertainable standards . . .”

State v. Oyen, supra at 916. It is true that Drew involved loitering in “suspicious circumstances” but if the term “loiter” is deemed vague when attached to such a qualifying phrase, it certainly is no more precise standing alone. Nor does the proviso of section 2 cure the vagueness infirmity plaguing the words involved herein. The proviso’s four circumstances under which there can be no finding of “loitering, idling, wandering or playing” are not exhaustive and fail to account for the many other possible “innocent” acts. Thus, the proviso’s presentation of a number of protected situations does not make sufficiently more precise the ordinance’s language of prohibition. See Ex parte McCarver, 39 Tex. Crim. 448, 46 S.W. 936 (1898).

The words “loiter, idle and wander” are embraced by the aforementioned authority and only “play” must be decided in this case and we find it innocent behavior, for the lay meaning of play also cannot reasonably connote unlawful activity.

Since the words “to loiter, idle, wander or play” do not provide ascertainable standards for locating the line between innocent and unlawful behavior, the ordinance is void for its “unconstitutional uncertainty.” Collings, Unconstitutional Uncertainty — An Appraisal, 40 Cornell L.Q. 195 (1955); Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77 (1948).

It is no answer to a finding of vagueness that good faith actions by law enforcement will result in only the proper exercise of this penal ordinance. As we stated in Drew at pages 409-10:

This assurance, however, does not save the ordinance because “well intentioned prosecutors ... do not neutralize the vice of a vague law.” Baggett v. Bullitt, 377 U.S. 360, 373, 12 L. Ed. 2d 377, 84 Sup. Ct. 1316 (1964).

Regulation in this area must not only be in compliance with due process standards, but must come within the police power authority of the government. For the exercise of the police power to be valid, the area of regulation must be within the government’s scope of authority and the particular ordinance must be a reasonable regulatory measure in support of the area of concern. Markham Advertising Co. v. State, 73 Wn.2d 405, 420-22, 439 P.2d 248 (1968); Ragan v. Seattle, 58 Wn.2d 779, 364 P.2d 916 (1961). If the regulated area exceeds the scope of the police power authority, or if the ordinance’s prohibitions do not have a real and substantial relationship to the government’s interest, the ordinance is unconstitutional.

We recognize the government has an independent interest in the well-being of its youth and may in certain situations enact laws to assist those whose primary responsibility is for the well-being of minors. Ginsberg v. New York, 390 U.S. 629, 639, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968). However, ordinances and statutes designed to further such interests must reasonably relate to their purpose and do so without violating protected rights. As we emphasized in Drew, at page 408: “It is fundamental that no ordinance may unreasonably or unnecessarily interfere with a person’s freedom, whether it be to move about or to stand still.”

We have already found that the ordinance because of its vagueness violates due process and now, in addition, that it bears no real or substantial relationship to the proclaimed governmental interest — the protection of minors.

This ordinance makes no distinction between conduct calculated to harm and that which is essentially innocent and is thereby an unreasonable exercise of the police power. As we stated in Drew, at page 408:

The right to be let alone is inviolate; interference with that right is to be tolerated only if it is necessary to protect the rights and the welfare of others.

“Prima facie, mere sauntering or loitering on a public way is lawful and the right of any man, woman, or child.” Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950). Other jurisdictions have uniformly struck down mere “loiteririg-type” conduct ordinances. See Cleveland v. Baker, 83 Ohio L. Abs. 502, 167 N.E.2d 119 (1960); People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313, 151 N.E.2d 871 (1958); Soles v. Vidalia, 92 Ga. App. 839, 90 S.E.2d 249 (1955); Commonwealth v. Carpenter, supra; the famous case of Hawaii v. Anduha, 48 F.2d 171 (9th Cir. 1931) (cited with approval in Drew); St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908).

A unanimous United States Supreme Court opinion, in striking down a vagrancy ordinance, stated strongly its view on those ordinances prohibiting activities such as walking, strolling, wandering, loitering, and loafing:

[TJhese . . . are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law.

Papachristou v. Jacksonville, 405 U.S. 156, 164, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). See also Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv. L. Rev. 1203 (1953) for discussion of the historical connection between modern loitering ordinances and common-law vagrancy.

The Jacksonville ordinance, like the one in Drew, and the one now before us, attempt to make criminal, activities which are normally deemed innocent. This the municipality cannot do under the claim of its police power. The fact that we have a minor curfew ordinance, in which the above innocent behavior is prohibited, does not alter the conclusion. The government has an interest to protect minors from “abuses” (Prince v. Massachusetts, 321 U.S. 158, 165, 88 L. Ed. 645, 64 S. Ct. 438 (1944)), but what are the abuses here? It cannot be said that prohibition against the mere loitering, wandering, idling or playing of a minor in a public place or conveyance during the curfew hours (but for the circumstances exempted in the proviso) has the requisite connection to the ordinance’s alleged purpose of protecting minors. We must speculate as to the abuses to be avoided, but the invasion of protected freedoms is not speculation, it is very real.

There has been no showing whatsoever, in the case before us, that the alleged curfew violators’ conduct or that of the defendant’s interfered with the rights and welfare of others. The record reveals no improper operation of the automobile by the defendant, nor any impermissible conduct by any of those involved. On being questioned by the officer, the two minor females stated that they were heading home after a party. The record is absolutely devoid of any evidence showing “bad conduct”. The defendant’s automobile was stopped because of excessive noise and the mere fact that the defendant was in the presence of two minors during curfew hours resulted in this prosecution.

Moreover, the record does not disclose whether the alleged curfew violators did or did not have the consent of their parents or guardian to be out in the company of defendant or out during curfew hours. Assuming permission was present in the case before us, unless it was given within the narrow and limited parameters of the section 2 proviso, this ordinance nevertheless would permit the arrest, prosecution and conviction of these two minor females. Such an ordinance, claimed to support the discharge of parental responsibility, can operate despite parental supervision and thus in derogation of the parental responsibility for their children.

This ordinance, as drafted, goes beyond the scope of legitimate police power authority. Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla. 1969); Alves v. Justice Court, 148 Cal. App. 2d 419, 306 P.2d 601 (1957). We find, therefore, that ordinance No. 95984, as drafted, has an insufficient relationship to the objective of safeguarding minors and is unconstitutional.

General curfew ordinances have been found valid when imposed in emergency circumstances to restore public order. United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971); Ervin v. State, 41 Wis. 2d 194, 163 N.W.2d 207 (1968); Glover v. District of Columbia, 250 A.2d 556 (D.C. App. 1969). Note, Judicial Control of the Riot Curfew, 77 Yale L.J. 1560 (1968). Similarly, minor curfew ordinances may be permissible where they are specific in their prohibition and necessary in curing a demonstrable social evil. Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime, 107 U. Pa. L. Rev. 66 (1958).

For each of the reasons we have stated, the defendant’s conviction is reversed.

Finley, Rosellini, Hamilton, Stafford, and Brachten-bach, JJ., concur.

1 12.40.040 (section 4 of ordinance No. 95984). “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.”

12.40.020 (section 2 of ordinance No. 95984). “Loitering during curfew hours. 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 traveling 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 such child shall have with him the written consent of his parent or .guardian.”

2 Tarver v. City Comm’n, 72 Wn.2d 726, 435 P.2d 531 (1967); Seattle v. Long, 61 Wn.2d 737, 380 P.2d 472 (1963); State v. Lundquist, 60 Wn.2d 397, 374 P.2d 246 (1962); State v. Rowe, 60 Wn.2d 797, 376 P.2d 446 (1962); State v. Bowman, 57 Wn.2d 266, 356 P.2d 999 (1960).

3 Papachristou v. Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Cramp v. Board of Pub. Instruction, 368 U.S. 278, 287, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961); United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954); Jordan v. De George, 341 U.S. 223, 230-32, 95 L. Ed. 886, 71 S. Ct. 703 (1951); Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939); Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 65 L. Ed. 516, 41 S. Ct. 298, 14 A.L.R. 1045 (1921); International Harvester Co. v. Kentucky, 234 U.S. 216, 223-24, 58 L. Ed. 1284, 34 S. Ct. 853 (1914).

4 Papachristou v. Jacksonville, supra; Coates v. Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 684-85, 20 L. Ed. 2d 225, 88 S. Ct. 1298 (1968); Ashton v. Kentucky, 384 U.S. 195, 200, 16 L. Ed. 2d 469, 86 S. Ct. 1407 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91, 15 L. Ed. 2d 176, 86 S. Ct. 211 (1965); Saia v. New York, 334 U.S. 558, 559-60, 92 L. Ed. 1574, 68 S. Ct. 1148 (1948); Thornhill v. Alabama, 310 U.S. 88, 97-98, 84 L. Ed. 1093, 60 S. Ct. 736 (1940); Herndon v. Lowry, 301 U.S. 242, 261-64, 81 L. Ed. 1066, 57 S. Ct. 732 (1937).

5 The United States Supreme Court in Oyen v. Washington, 408 U.S. 933, 33 L. Ed. 2d 745, 92 S. Ct. 2846 (1972), vacated our judgment in Oyen and remanded the case for further consideration in light of Police Dep’t v. Mosley, 408 U.S. 92, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972) and Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). By supplemental judgment of August 2, 1972, the case has been remanded to the Superior Court for Whatcom County for reconsideration. However, Oyen’s affirmance of the Drew analysis herein used is not affected by that reconsideration.