City of Sumner v. Walsh , 148 Wash. 2d 490 ( 2003 )

Alexander, C.J.

The City of Sumner Municipal Court determined that Thomas Walsh committed two infractions of Sumner’s juvenile curfew ordinance by allowing his 14-year-old son, Justin, to be in a public place during curfew hours. Walsh was fined $50 for each infraction. He appealed the municipal court’s decision to the Pierce County Superior Court where he asserted that Sumner’s curfew ordinance was unconstitutional in that it was vague as well as violative of the constitutional right of minors to move freely in public places and of parents to rear their children. The superior court rejected these challenges and affirmed his convictions. We granted discretionary review of the superior court’s decision and now conclude that Sumner’s juvenile curfew ordinance is unconstitutionally vague.

I

Sumner’s juvenile curfew ordinance makes it unlawful for juveniles to be in a public place after certain hours. Sumner Municipal Code (SMC) 9.28.020(A). The ordinance also makes it unlawful “for the parent... of any juvenile to permit or knowingly allow such juvenile to remain in any public place . . . during curfew hours.” SMC 9.28.030(A) (emphasis added). Juveniles may, however, be in public places during curfew hours if their presence falls under one of the exemptions set forth in the ordinance. These exemptions include going to or from work and to or from an adult-supervised or school-sponsored event.¹ SMC 9.28.040(C), (E), (G). Interstate travel is also exempt. SMC 9.28.040(H). Of particular significance to this case is the exemption for a juvenile who “is on an errand as directed by his or her parent.” SMC 9.28.040(B). “Errand” is not, however, defined.

A. Factual Background

At 1:46 a.m. on July 25,1999, Thomas Walsh’s 14-year-old son, Justin, was observed at an “Am Pm Minimarket” in Sumner by Officer David Strader of the Sumner Police Department. Clerk’s Papers (CP) at 34. Strader believed that Justin was a “habitual offender of the City of Sumner curfew ordinance” and, thus, contacted the youngster to see if he had a note from his parents authorizing him to be in a public place during curfew hours. Id. Justin failed to produce such a note and indicated to the officer that he was at the minimarket “just to hang out.” CP at 34. Officer Strader then took Justin into custody.²

At the Sumner police station, another police officer, Jeff Engel, placed a telephone call to Justin’s father. Thomas Walsh told Engel that Justin had his permission to be at the store. Although Strader testified that he did not believe that either Justin or Justin’s father provided an excuse that fell within any of the exemptions set forth in the ordinance, he transported Justin back to the Am Pm Minimarket so that the youngster could pick up his bicycle and return home.

Approximately 45 minutes later, Strader observed Justin riding his bicycle toward the Am Pm Minimarket. A few minutes later, Strader confronted Justin at the minimarket as Justin was attempting to purchase a package of chewing gum. Following this encounter, Strader mailed a citation to Thomas Walsh charging Walsh with violating the curfew ordinance by allowing Justin to be in a public place during curfew hours.

Five days later, on July 30, 1999, Engel contacted Justin and another juvenile at approximately 2:00 a.m. on a public sidewalk in Sumner. According to Engel’s report, Justin told him that he was “going to AM/PM to get some Advil for his father.” CP at 8. Engel then took Justin to the Sumner police station and placed a telephone call to Thomas Walsh. Walsh again stated that Justin had his permission to be out of the family home so that he might go “on an errand to the store.” CP at 36. When Thomas Walsh came to the police station to collect his son, Engel issued him another citation for violating the curfew ordinance.³

B. Procedural Background

At trial in Sumner Municipal Court, Thomas Walsh testified that on each occasion that led to him receiving a citation he had given Justin permission to go to the store. The record further established that Walsh had previously contacted the city attorney of Sumner to find out how he could allow his son to leave the family house with his permission during curfew hours without running afoul of Sumner’s ordinance. Despite this testimony, the municipal court held that the city established by a preponderance of the evidence that Walsh violated the ordinance on July 25 and July 30 by knowingly permitting Justin to be in public during curfew hours. Thomas Walsh was fined $50 for each infraction.

Walsh appealed to Pierce County Superior Court where he challenged the constitutionality of Sumner’s curfew ordinance. The superior court upheld both convictions but remanded the matter to Sumner Municipal Court at the city’s request “for determination of factual precedent.” CP at 181. On remand, the city presented testimony from its chief of police together with certain exhibits. Walsh then petitioned the Court of Appeals, Division Two, for discretionary review. That court transferred Walsh’s petition to our court and we granted review.⁴

II

We must first consider Walsh’s motion to strike two items, the testimony of the Sumner police chief at the remand hearing, and a memorandum from the police chief to Sumner’s Public Safety Committee that the city filed with this court as an attachment to a pleading entitled “Record Necessary for Review.” These items were not part of the record on review nor had they been the subject of a motion to supplement the record on review. Generally, we consider only those documents that have properly become part of the record on review. Snedigar v. Hoddersen, 114 Wn.2d 153, 164, 786 P.2d 781 (1990). RAP 9.5(c), RAP 9.9, and RAP 9.10, however, provide the means by which a party may supplement the record in the event the party believes the record is not adequate. Because the testimony of the chief of police and the memorandum to the Public Safety Committee that the city included in what it called “Record Necessary for Review” were not part of the record for review, and the city failed to supplement the record pursuant to the aforementioned court rules, we grant Walsh’s motion to strike the documents.

III

We next consider the city’s contention that because no party is arguing Justin’s rights before the court and because the attorney general is not a party to the action, “[t]his Court is without jurisdiction to hear the matter.” Am. Br. of Resp’t at 35. In support of that contention, the city asserts that Walsh’s challenge to the validity of the parental responsibility portion of the ordinance rests on his challenge to the ordinance as a whole. It posits, therefore, that “this Court should dismiss this matter for failure to join indispensable parties” because neither a juvenile nor the attorney general is a party to this action. Am. Br. of Resp’t at 40.

We disagree with the city’s contention that we lack jurisdiction to review the decision of the Pierce County Superior Court. As a general principle, a defendant has standing to assert a constitutional challenge to an element of a charged offense. See, e.g., State v. Goucher, 124 Wn.2d 778, 881 P.2d 210 (1994). Furthermore, our decision in City of Seattle v. Pullman, 82 Wn.2d 794, 514 P.2d 1059 (1973), makes it clear that Walsh has standing to assert his constitutional challenges to the curfew ordinance because the offense with which he is charged, allowing a juvenile to remain in a public place in Sumner during curfew hours, is premised upon his son’s violation of the curfew. In Pullman, we stated:

The defendant has standing to challenge the constitutionality of [the ordinance because] . . . . [o]ne of the necessary elements for conviction for accompanying a child during curfew hours ... is an actual violation by the minor of the curfew ordinance .... His conviction cannot stand without a determination that a valid curfew ordinance was violated.

Pullman, 82 Wn.2d at 796 (emphasis added). The only difference between the Pullman case and the instant is that Walsh was charged with a civil infraction whereas Pullman was charged with a crime, a misdemeanor. The city has not presented us with any authority, nor can we find any, that suggests that this is a significant distinction.

Insofar as participation of the attorney general is concerned, the city cites RCW 7.24.110. It provides that “[i]n any proceeding which involves the validity of a municipal ordinance . . . [that] is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.” RCW 7.24.110 (emphasis added). This statute applies only to proceedings brought under the Uniform Declaratory Judgments Act, chapter 7.24 RCW. See Standow v. City of Spokane, 88 Wn.2d 624, 633, 564 P.2d 1145 (1977), overruled on other grounds by State v. Smith, 93 Wn.2d 329, 610 P.2d 869 (1980). Walsh is not maintaining a proceeding under the Uniform Declaratory Judgments Act. Rather, he raised his challenge to the constitutionality of the curfew ordinance in an appeal, pursuant to the Rules for Appeal of Decisions of Courts of Limited Jurisdiction, in Pierce County Superior Court. We are simply reviewing the decision of the superior court affirming his convictions in municipal court for violating the ordinance. That being the case, RCW 7.24.110 has no application.

IV

We must next determine if, as Walsh claims, Sumner’s curfew ordinance “is unconstitutional because it violates fundamental rights of juveniles and their parents, and is also void for vagueness.”⁵ Br. of Pet’r at 9. As noted above, Walsh is charged with violating the parental responsibility provision of the curfew ordinance. That provision, SMC 9.28.030(A), makes it “unlawful for the parent, guardian or other adult person having custody or control of any juvenile to permit or knowingly allow such juvenile to remain in any public place or on the premises of any establishment within the city of Sumner during curfew hours.” (Emphasis added.) Underlying this parental responsibility is the provision in the ordinance making it “unlawful for any juvenile to remain in any public place or establishment within the city of Sumner during curfew hours.” SMC 9.28.020(A) (emphasis added). “ ‘Remain’ means to linger or stay.” SMC 9.28.010(H).

In support of his assertion that the ordinance is void for vagueness, Walsh quotes from our decision in Pullman and contends that the Sumner ordinance, which makes it unlawful for juveniles to “remain” (i.e., linger or stay) in a public place during curfew hours and for parents to permit their juvenile child to do so, is unconstitutionally “vague because these terms ‘do not provide ascertainable standards for locating the line between innocent and unlawful behavior.’ ” Br. of Pet’r at 27 (quoting Pullman, 82 Wn.2d at 799).

Walsh correctly notes that this court concluded in Pullman that an ordinance of the city of Seattle which made it unlawful for juveniles to “loiter, idle, wander or play” during curfew hours violated the due process clause of the Washington and federal constitutions because those terms were not sufficiently precise. Pullman, 82 Wn.2d at 799. He argues that the terms “ ‘ [r] emain, linger, or stay’ are no more precise than [the terms] ‘loiter, idle, wander, or play,’ ” that we examined in Pullman. Br. of Pet’r at 27. Thus, he avers, the ordinance before us now presents the same constitutional deficiencies.

Walsh also relies on a decision of the Court of Appeals in State v. J.D., 86 Wn. App. 501, 937 P.2d 630 (1997), in support of his assertion that the parental responsibility portion of the ordinance fails to pass constitutional muster because it does not clearly define what constitutes an “errand.” In J.D., the Court of Appeals concluded that because an exemption in the city of Bellingham’s curfew ordinance for “ ‘an activity including, but not limited to, dance, theater presentations, and sporting events’ ” did not provide police officers with “sufficient guidance to determine whether a minor” could avail himself or herself of one of the ordinance’s exemptions, the ordinance was unconstitutionally vague. J.D., 86 Wn. App. at 510 (quoting in part Bellingham Municipal Code 10.62.030(C)(6)).

The void-for-vagueness doctrine is rooted in principles of due process. Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997) (citing Finley v. Nat'l Endowment for the Arts, 100 F.3d 671, 675 (9th Cir. 1996)); State v. Glas, 147 Wn.2d 410, 421-22, 54 P.3d 147 (2002) (citing City of Seattle v. Webster, 115 Wn.2d 635, 642-43, 802 P.2d 1333 (1990); State v. Smith, 111 Wn.2d 1, 4-5, 759 P.2d 372 (1988)). “To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner.” Nunez, 114 F.3d at 940 (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)).

Since the city has limited the meaning of the term “remain” in SMC 9.28.010(H) to “linger or stay,” we must determine if the latter words are sufficiently precise so that ordinary people can understand what conduct is prohibited and police officers will know how to enforce the law in a nonarbitrary, nondiscriminatory manner. Webster’s Third New International Dictionary defines “linger” as to “be slow in parting or in quitting something,” or “to remain or wait long.” Webster’s Third New International Dictionary 1316 (1993). The same dictionary defines “stay” as to “stop going forward,” or “to stop doing something” or “to remain somewhere . . . rather than proceed or leave.” Id. at 2231. These terms are not, in our judgment, sufficiently precise so that a person of ordinary intelligence is accorded fair notice of what conduct is prohibited. Neither do these terms provide sufficient guidance to officers endeavoring to determine if a juvenile’s conduct is exempt from the ordinance.

As noted, the Sumner ordinance makes it unlawful for a juvenile to “remain” in a public place unless the juvenile’s actions fall within the listed exemptions. Consistent with that notion, a juvenile who is not engaged in exempted activity does not violate Sumner’s ordinance if he or she does not “remain” (i.e., linger or stay) in a public place. Unfortunately, it cannot be easily determined from the terms employed by the city whether and when a juvenile is engaged in an activity which runs afoul of the ordinance. For example, one can reasonably ask whether the ordinance is violated by a juvenile who travels on foot during curfew hours, from any activity, and slows his or her pace, or stops, for perfectly legitimate reasons (tying one’s shoelaces for example). One might ask the same question about a juvenile who stops to purchase gasoline while traveling to his or her home by automobile from an exempted activity such as a school football game or concert. Does such conduct constitute lingering or staying in violation of the ordinance? Sumner’s ordinance simply does not provide sufficient guidance to answer these questions and many more and thereby does not prevent unconstitutionally arbitrary discretion by law enforcement. “An ordinance that allows a person to stand on a public sidewalk only at the whim of a police officer is unconstitutional.” City of Seattle v. Drew, 70 Wn.2d 405, 411, 423 P.2d 522 (1967) (citing Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965)). In sum, an ordinance which affords a police officer broad discretion to determine if a juvenile is in violation when tying his or her shoe or pumping gas does not withstand a vagueness challenge.

Considering the discretion that police officers are accorded under the ordinance, one is left to wonder whether the practical effect of the ordinance is to simply make it unlawful for a juvenile to be present in a public place during curfew hours.⁶ The problem with the ordinance, in short, is that it does not provide “ascertainable standards for locating the line between innocent and unlawful behavior” that this court requires. Pullman, 82 Wn.2d at 799. Our conclusion in that regard is buttressed by the Ninth Circuit’s decision in Nunez that phraseology in a curfew ordinance which allows police officers to enforce the ordinance by penalizing juveniles for a narrower range of conduct other than mere “presence” is unconstitutionally vague because it affords excessive discretion to the police. See Nunez, 114 F.3d at 943.

As noted above, Walsh also contends that the Sumner ordinance is constitutionally infirm because it fails to provide police officers with sufficient guidance to determine whether a juvenile’s presence in a public place during curfew hours falls under the “errand” exemption. Pertinent to this case, we believe that the term “errand” is also vague in that it fails to provide sufficient notice of what conduct is prohibited or standards for police officers to enforce that conduct. We can easily conceive of a situation where a parent sends his or her juvenile child to a neighbor’s house during curfew hours in order to deliver a package. Because the ordinance fails to define what constitutes an “errand,” a police officer is furnished with little guidance as to whether the juvenile engaged in such an activity is in violation of the ordinance. In this regard, the instant case is similar to J.D. in which the court concluded that a juvenile curfew ordinance that exempted juveniles en route to or from “an activity” was unconstitutionally vague. See J.D., 86 Wn. App. 501. That court reasoned that “[b]ecause the ordinance is unclear about what is and is not an exempted activity, [the ordinance] fails to provide explicit standards for enforcement.” J.D., 86 Wn. App. at 510.⁷

We recognize that it may be difficult for a city to draft a curfew ordinance that is not unconstitutionally vague. The primary reason for that, as we pointed out in Pullman, is that curfew ordinances attempt to make activities that are normally considered innocent, unlawful, i.e., walking, driving, going to the store. If a city chooses to establish a curfew that does not simply make it unlawful for a juvenile to be in a public place after curfew hours, with no exceptions, it must establish the line between conduct that does not fall under the ordinance and that which does in a way that the ordinance can be enforced in a nonarbitrary manner.⁸ For reasons stated above, we believe that Sumner’s council did not draw that line with sufficient precision. Accordingly, we hold that its ordinance that makes it unlawful for juveniles to “remain” in a public place during certain hours and prohibits parents from permitting their juvenile children to do the same is unconstitutionally vague and, therefore, void. Thus, we reverse Walsh’s convictions for being in violation of the ordinance. Because we reach that conclusion it is unnecessary to reach Walsh’s additional constitutional challenges to the ordinance.

V

In sum, we conclude that we have jurisdiction to hear this matter since neither a juvenile nor the attorney general is an indispensable party to this action. On the merits of this facial challenge to the Sumner ordinance, we conclude that the ordinance is unconstitutionally vague and, therefore, void. That being the case, we reverse Walsh’s convictions.

Owens, J., and Smith, J. Pro Tem., concur.

1 A juvenile is exempt from the ordinance for one-half hour while traveling to or from work or an adult-supervised activity. SMC 9.28.040(C), (E). The ordinance does not provide a similar period of exemption for juveniles traveling to or from school-sponsored events. In such a case, the juvenile is exempt from the ordinance only when the he or she is on a “direct route □” to or from the event. SMC 9.28.040(G).

2 Although a violation of the curfew ordinance is not a crime but, rather, a civil infraction, SMC 9.28.050 provides that “[a] police officer who reasonably believes that a juvenile is violating [the curfew ordinance] shall have the authority to take the juvenile into custody.”

3 Justin was also twice cited in Sumner Municipal Court for being in violation of the curfew ordinance. The municipal court dismissed the charges against Justin on the basis that it did not have subject matter jurisdiction because Justin was a juvenile.

4 The petition was transferred to this court because “appellate jurisdiction of the court of appeals does not extend to civil actions . .. when the original amount in controversy ... does not exceed the sum of two hundred dollars.” ROW 2.06.030; see also City of Bremerton v. Spears, 134 Wn.2d 141, 949 P.2d 347 (1998).

5 Walsh’s assertion that the ordinance is unconstitutional in that it is vague as well as violative of the constitutional right of minors to move freely in public places and of parents to rear their children appears to be based on the United States Constitution and not the state constitution. In the absence of briefing pursuant to State v. Gunwall, 106 Wn.2d 54, 62, 720 P.2d 808 (1986), we assume that the state constitution provides no more support for Walsh’s position than does the federal constitution.

6 It is apparent that the dissent equates “remain” with “presence” in order to avoid a vagueness determination. See generally Nunez, 114 F.3d at 943. This interpretation is not precise. “Presence” is a broader term than “remain.” (“Presence” is defined as “the fact or condition of being present” or “the state of being in one place and not elsewhere.” Webster’s at 1793. “Present” means “being in one place and not elsewhere.” Id.) The city of Sumner narrowed the definition of “remain” to “stay” or “linger.” It did not broaden the definition to “presence” or its synonym “to be.”

7 Sumner’s ordinance contains other vagueness infirmities as well. For example, the exemption in SMC 9.28.040(E) for coming directly home from a place of public entertainment creates confusion for a person of ordinary intelligence. If a movie ends at 12:31 a.m. on a Friday evening, a juvenile may lawfully travel home under the exemption, but he or she was in violation of the ordinance while at the movie theater for the last half hour of the show. SMC 9.28.020(A). This result does not mate sense. It is also reasonable to wonder in this situation at which point should a police officer enforce the ordinance: while the juvenile is in the movie theater, as he or she is leaving, or is the juvenile traveling directly home at that point? Clearly, no standard is obvious in this situation other than arbitrary discretion.

8 Although an ordinance that completely bans juveniles from being in public places after certain hours may survive a vagueness challenge, an ordinance might experience a more difficult time passing constitutional muster on the grounds Justice Chambers discusses in his concurring opinion, i.e., that the ordinance violates the constitutional right of a juvenile to move freely in public places. See Nunez, 114 F.3d at 943-44.