Bykofsky v. Borough of Middletown

• Citation: 401 F. Supp. 1242
• Decision Date: 22 August 1975
• Docket Number: Civ. No. 75-74.
• Parties: Jo-Ann BYKOFSKY, on her own behalf and on the behalf of her son, a minor, Shaw Bykofsky, as his guardian, Plaintiffs, v. The BOROUGH OF MIDDLETOWN et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

401 F. Supp. 1242

Jo-Ann BYKOFSKY, on her own behalf and on the behalf of her son, a minor, Shaw Bykofsky, as his guardian, Plaintiffs, v. The BOROUGH OF MIDDLETOWN et al., Defendants.

Civ. No. 75-74.

United States District Court, M. D. Pennsylvania.

August 22, 1975.

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Andrew F. Schneider, Middletown, Pa., for plaintiffs.

William M. Young, Jr., James H. Boser, McNees, Wallace & Nurick, Harrisburg, Pa., for defendants.

SHERIDAN, Chief Judge.

This is the first federal case to adjudicate the constitutionality of a nocturnal juvenile curfew ordinance. Despite the widespread prevalence of juvenile curfew ordinances, there is a surprising paucity of legal authority dealing with the validity of such enactments, there being no federal cases and relatively few state cases.¹

Plaintiff, Jo-Ann Bykofsky, on her own behalf and on the behalf of her son, a twelve year old minor, Shaw Bykofsky, as his guardian, brought this action under the Civil Rights Act, 42 U.S.C.A. § 1983, and the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, seeking declaratory and preliminary and permanent injunctive relief against the defendants — the Borough of Middletown, Harry Judy, the Mayor of Middletown, Steven Mrakovich, the Chief of Police of Middletown, and George Merkel, Middletown Borough Manager. Federal jurisdiction is predicated upon 28 U.S.C.A. § 1343. Specifically, plaintiffs request the court to declare unconstitutional and enjoin the enforcement of a juvenile curfew ordinance of the Borough of Middletown.

In an earlier decision, the court denied defendants' motion to dismiss the complaint finding that this case presents a justiciable controversy under Article III of the Constitution which the plaintiffs have standing to litigate, and the court denied plaintiffs' motion for a preliminary injunction on the basis of the abstention doctrine. Bykofsky v. Borough of Middletown, M.D.Pa.1975, 389 F.Supp. 836. The court also noted in that decision that no relief would be granted with respect to one of the defendants — the Borough of Middletown — because the Borough is not a "person" within the meaning of 42 U.S.C.A. § 1983 and therefore not subject to suit under the Civil Rights Act.

After the court denied plaintiffs' request for a preliminary injunction and defendants' motion to dismiss the action, the Borough of Middletown enacted a new juvenile curfew ordinance which replaced the one then in effect. Subsequently, plaintiffs filed a "motion for supplemental pleadings" pursuant to Rule 15(d) of the Federal Rules of Civil Procedure and a "motion for amended supplemental complaint" pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, both which the court granted, thereby enabling plaintiffs to challenge the new ordinance in this action.

The court having previously decided that it should abstain from the issuance of preliminary and permanent injunctive relief, the case is presently before the court on plaintiffs' request for a declaratory judgment holding unconstitutional the new criminal ordinance of Middletown which imposes a curfew on minors under the age of eighteen. The trial on the merits was held on May 15, 1975, at which evidence was adduced with respect to the validity of the Borough's curfew.

The curfew ordinance² prohibits any minor under the age of eighteen from being on or remaining in or upon the streets within the Borough of Middletown between the hours of 10:00 P.M. (minors under twelve years of age), 10:30 P.M. (minors twelve or thirteen years of age), or 11:00 P.M. (minors fourteen through seventeen years of age) and 6:00 A.M., unless the minor comes within one of the following exceptions:

(a) The minor is accompanied by a parent (defined to include a legal guardian, a person who stands in loco parentis, or a person to whom legal custody has been given by court order);

(b) The minor is accompanied by an adult authorized by the parent to take the parent's place in accompanying the minor for a designated period of time and specific purpose within a specified area;

(c) The minor is exercising first amendment rights protected by the Constitution, such as free exercise of religion, freedom of speech, and the right of assembly, provided the minor first has given notice to the Mayor of the Borough by delivering to the communications center personnel at the Borough Municipal Building a written communication signed by the minor and countersigned if practicable by a parent of the minor which specifies when, where, in what manner, and for what first amendment purpose the minor will be on the streets at night during the curfew time period;

(d) In a case of reasonable necessity but only after the minor's parent has communicated to the Middletown police station personnel "the facts establishing such reasonable necessity relating to specified streets at a designated time for a described purpose including points of origin and destination";

(e) The minor is on the sidewalk of his residence, or on the sidewalk of either next-door neighbor, so long as the neighbor does not object to the minor's presence on his sidewalk;

(f) The minor is returning home by a direct route from, and within thirty minutes of the termination of, a school activity or an activity of a religious or other voluntary association, provided prior notice of said activity and the place and probable time of termination has been given in writing to the Chief of Police or the officer assigned by him on duty at the police station;

(g) The minor has been authorized, by special permit obtained from the Mayor, to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance;

(h) The minor is a member of a group of minors permitted by a "regulation" issued by the Mayor to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance, there being too many persons involved for use of the individualized permit procedure of exception (g) above;

(i) The minor carries a certified card of employment;

(j) The minor is in a motor vehicle with parental consent for normal travel, with interstate travel through Middletown excepted in all cases from the curfew;

(k) A minor is seventeen years of age and is excepted from the curfew by "formal rule" promulgated by the Mayor excepting designated minors, minors in a defined group or area, or all minors seventeen years of age.

The ordinance further provides that it is unlawful for a parent having legal custody of a minor knowingly to permit or by inefficient control to allow such minor to be on or remain upon the street in violation of the curfew. "Knowingly" is defined as including knowledge which a parent should reasonably be expected to have concerning the whereabouts of a minor in his legal custody. When the police find a minor in prima facie violation of the curfew, the ordinance provides that the minor shall be taken to the police station, the parent called, and the parent and minor interrogated to determine the relevant facts, after which the minor is to be released to the parent's custody. If the parent cannot be located or fails to take charge of the minor, the juvenile is released to the juvenile authorities.

In the case of a first violation by a minor, the police send his parents by certified mail written notice of the violation, warning them that further violations will result in imposition of the penalty provided for in the ordinance. Upon a second violation, a fine of twenty-five dollars plus costs of prosecution is imposed upon the parents, with the fine increasing in twenty-five dollar increments for each successive violation. Refusal to pay the fine and costs results in imprisonment in the Dauphin County prison for a period not to exceed ten days. Any minor who violates the curfew ordinance more than three times shall be reported by the Mayor to a society or organization whose purpose it is to take charge of incorrigibles and delinquents and proceedings shall then be taken, under the Juvenile Act, 11 P.S. § 50-101 et seq., before the juvenile court for the treatment, supervision, and rehabilitation of the minor.

The Mayor is authorized in the curfew ordinance to give advisory opinions, in writing, which are binding with respect to the interpretation of the ordinance. The ordinance states that a constitutional construction is intended and shall be given, and provides for continuing evaluation and updating of the enactment by the Borough council. Finally, the ordinance contains a very specific and detailed severability provision which states that severability is intended throughout and within the provisions of the ordinance.

Plaintiffs contend that the curfew ordinance: (1) is unconstitutionally vague; (2) violates the substantive due process rights of minors, specifically, the right to freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others; (3) violates the first amendment guarantees of freedom of speech, freedom of association, and freedom of assembly; (4) violates the fundamental right of interstate travel; (5) violates the constitutional right of intrastate travel; (6) impermissibly encroaches on the constitutional right of parents to direct the upbringing of their children and violates the constitutional guarantee of family autonomy; and (7) is violative of the equal protection clause of the fourteenth amendment. Plaintiffs' contentions will be considered seriatim.

VAGUENESS

A legislative enactment which either forbids or requires the doing of an act in language so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law — to wit, providing fair warning and...