Johnson v. City of Opelousas, Civ. A. No. 790317.

• Decision Date: 16 April 1980
• Docket Number: Civ. A. No. 790317.
• Citation: 488 F. Supp. 433
• Parties: Madeline JOHNSON, on her own behalf and on behalf of her minor son, James Johnson, as his next friend, and on behalf of all other minors similarly situated, Plaintiffs, v. The CITY OF OPELOUSAS, an Incorporated Municipality, Thomas Edwards, individually and in his official capacity as Mayor of the City of Opelousas, Howard Zerangue, Individually and in his official capacity as Chief of Police.
• Court: U.S. District Court — Western District of Louisiana

488 F. Supp. 433

Madeline JOHNSON, on her own behalf and on behalf of her minor son, James Johnson, as his next friend, and on behalf of all other minors similarly situated, Plaintiffs, v. The CITY OF OPELOUSAS, an Incorporated Municipality, Thomas Edwards, individually and in his official capacity as Mayor of the City of Opelousas, Howard Zerangue, Individually and in his official capacity as Chief of Police.

Civ. A. No. 790317.

United States District Court, W. D. Louisiana, Lafayette-Opelousas Division, Section S.

April 16, 1980.

Henry C. Remm, Jr., Acadiana Legal Service Corp., Lafayette, La., for plaintiffs.

Richard B. Millspaugh, Opelousas, La., for defendant.

OPINION

SHAW, District Judge.

This matter involves an action by a mother and her son to test the constitutionality of the nocturnal juvenile curfew ordinance of the City of Opelousas, Louisiana. The matter was submitted to the Court to be decided on the stipulation of facts in the record. All parties to this cause have the status of natural persons residing within the geographical area encompassed by the Federal Western District of Louisiana.

On January 21, 1978, the plaintiff's minor son, James Johnson, was taken into custody at 4:52 a. m., by an officer employed by the City of Opelousas Police Department for violating the city's juvenile curfew ordinance. Young Johnson was released immediately thereafter without the filing of a formal petition or any adverse adjudication under applicable Louisiana law resulting from the incident. On August 16, 1978, James Johnson was apprehended at 2:05 a. m. by an officer employed by the City of Opelousas Police Department in connection with his violation of the juvenile curfew ordinance. Subsequently, James Johnson was found to be in violation of the juvenile curfew ordinance in connection with his August 16, 1978, apprehension, breaching the peace or otherwise engaging in unlawful activity. Plaintiff, James Johnson, has been released from La Garconniere, a juvenile residence facility, and now resides with his mother in Opelousas. Louisiana. No appeal from this adjudication was taken.

Plaintiffs contend that James Johnson is threatened with enforcement of the juvenile curfew ordinance against him in the future.

Plaintiff, Madeline Johnson, is a natural person and a citizen of the United States of America, of the age of majority, residing in the City of Opelousas, Louisiana. Pursuant to Rule 17(c), Federal Rules of Civil Procedure, Madeline Johnson seeks to represent the other named plaintiff, James Johnson, a minor, and the putative class of minors of which he is a member.

Plaintiff, James Johnson, a minor, is the son of plaintiff, Madeline Johnson, and he desires to sue by his next friend. Plaintiff, James Johnson, is a natural person and a citizen of the United States of America, and he resides in the City of Opelousas, Louisiana.

Defendant, City of Opelousas, is an incorporated municipality and political subdivision properly created under the laws of the State of Louisiana. Opelousas Code § 18-8.1 was properly adopted and is currently enforced by the City of Opelousas. Defendant, City of Opelousas, is sued in its official capacity, as a person under 42 U.S.C. § 1983.

Defendant, Thomas Edwards, is a natural person, and a citizen of the United States, residing in St. Landry Parish, Louisiana. He is sued individually and in his official capacity as Mayor of the City of Opelousas. As mayor, defendant Edwards, is responsible for the enforcement of Opelousas Code § 18-8.1 complained of herein.

Defendant, Howard Zerangue, is a natural person, and a citizen of the United States, residing in St. Landry Parish, Louisiana. Defendant Zerangue is sued individually and in his official capacity as Chief of Police of the City of Opelousas. As Chief of Police, defendant Zerangue is directly responsible for the enforcement of Opelousas Code § 18-8.1 complained of herein.

Plaintiffs seek to maintain this suit as a class action pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure, the class being "all persons who have been or in the future will be arrested or detained under § 18-8.1".

The Court finds as a matter of law that plaintiffs' claim satisfies the prerequisites of Rule 23(a) FRCP and that in addition subdivision (b)(2) would be applicable to the instant action¹; however, the Court in its discretion has determined that a class action is unnecessary to insure an appropriate examination of the constitutionality of the ordinance in question. Any declaratory or injunctive relief given in the individual action of the named plaintiffs would inure to the benefit of other similarly situated minors. Cf. Koehler v. Ogilvie, 53 F.R.D. 98, at page 101 (N.D.Ill.1971), Judgment Affirmed, 405 U.S. 906, 92 S.Ct. 938, 30 L.Ed.2d 777.

After due consideration of the criteria listed in Rule 23 and the facts of the matter at hand, the Court chooses to exercise its discretion in denying class status in this suit.

No hearing on the maintenance of this suit as a class action will be granted for the obvious reason that no additional evidence could be available or pertinent to the question as to whether or not a class action is necessary or appropriate.

In general, plaintiffs claim that the ordinance violates the First, Fifth and Fourteenth Amendments of the Constitution of the United States, in that it is vague and overbroad on its face; that it violates the minor plaintiff's right of freedom of speech, freedom of association, freedom of assembly and freedom of religion, guaranteed by the First Amendment to the Constitution of the United States; that it violates the minor's right to move freely and to use the public streets in a way that does not interfere with the personal liberties of others guaranteed by the Ninth and Fourteenth Amendments to the Constitution of the United States; that it violates the rights of parents to direct the upbringing of their children; and the guarantee of family autonomy implicit in the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States; that it violates the minor plaintiff's rights of foreign interstate and intrastate travel guaranteed by the commerce clause and the privileges and immunities clause of the Fourteenth Amendment and Article 4, Section 2 of the Constitution of the United States, and that it violates the minor plaintiff's rights guaranteed by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Opelousas Code Section 18-8.1 provides as follows:

"(a) It shall be unlawful for any unemancipated minor under the age of seventeen (17) years to travel, loiter, wander, stroll, or play in or upon or traverse any public streets, highways, roads, alleys, parks, places of amusements and entertainment, places and buildings, vacant lots or other unsupervised places in the City of Opelousas, Louisiana, between the hours of 11:00 p. m. on any Sunday, Monday, Tuesday, Wednesday or Thursday night and 4:00 a. m. of the following day, or 1:00 a. m. on any Friday or Saturday night and 4:00 a. m. of the following day, all official time of the City of Opelousas, Louisiana, unless the said minor is accompanied by his parents, tutor or other responsible adult or unless the said minor is upon an emergency errand.

(b) Any minor violating any of the provisions of this section shall be deemed a neglected child, as such term is defined in Louisiana Revised Statutes, Title 13, Sections 1569 and 1570 as now enacted or hereafter amended or re-enacted, and such minor and his parents, tutor or other adult having the care and custody of such minor shall be dealt with under proper procedure in any juvenile court having jurisdiction of such child. (Ord. No. 3, §§ 1, 2, 6-14-72)"²

To this Court's knowledge, this is the second federal case to adjudicate the constitutionality of a nocturnal juvenile curfew ordinance. The first case on the subject was Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (1975); affirmed 535 F.2d 1245 (3rd Cir.); certiorari denied 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976). The lengthy and well-reasoned opinion of Chief Judge Sheridan in the Middletown case has been of great assistance to this Court, and before referring to it, certain leading constitutional decisions applicable to the case at hand should be mentioned.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth (than when it involves regulatory legislation affecting ordinary commerce transactions). United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234, Footnote 4 (1938).

The Court, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) sustaining Massachusetts' compulsory vaccination statute, stated:

"But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.

. . . . .

"If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so

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