Appeal In Maricopa County, Juvenile Action No. JT9065297, Matter of

• Decision Date: 17 August 1994
• Docket Number: CA-JV,No. 1,1
• Citation: 887 P.2d 599,181 Ariz. 69
• Parties: In the Matter of The APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. JT9065297. 93-0053.
• Court: Arizona Court of Appeals

Page 599

887 P.2d 599

181 Ariz. 69

In the Matter of The APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. JT9065297.

No. 1 CA-JV 93-0053.

Court of Appeals of Arizona Division 1, Department A.

Aug. 17, 1994.

As Corrected Sept. 23, 1994.

Review Denied Jan. 24, 1995.

[181 Ariz. 71] Gary Peter Klahr, Phoenix, for appellant.

[181 Ariz. 72] Richard M. Romley, Maricopa County Atty. by Jeffrey W. Pitts, Marie A. Scott, Deputy County Attys., Phoenix, for appellee.

Roderick G. McDougall, City Prosecutor by Cynthia A. Certa, Asst. City Prosecutor, Phoenix, for amicus curiae.

OPINION

GRANT, Presiding Judge.

This is an appeal from the juvenile court's adjudication that appellant ("the juvenile") violated Phoenix's curfew for juveniles under the age of 16 ¹ and that she is therefore an incorrigible child. We must decide whether the Phoenix curfew ordinance violates the federal or state constitutions. We must also decide whether sufficient evidence supports the juvenile court's decision. This court has jurisdiction pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 8-236 (1989).

FACTUAL AND PROCEDURAL HISTORY

On Saturday evening, May 1, 1993, the juvenile, a 15-year-old high school junior, obtained her father's permission to go out with a group of friends and make a series of stops. At approximately 11:00 p.m., she went to a friend's house in Phoenix to watch television. According to the juvenile, the friend's parents were asleep, however, and in order not to wake them, she and her friends walked to a park which was 50 to 100 yards across the street from her friend's house.

At 11:22 p.m., Phoenix Police Officer Renee Paquin responded to an anonymous report of a juvenile disturbance in a Northeast Phoenix park. Upon arriving, Officer Paquin heard loud laughing and found the juvenile along with two males, ages 16 and 17, in the park. Officer Paquin asked her age. When she responded that she was 15 years old, the officer took her into custody. Officer Paquin did not attempt to contact the juvenile's parents to determine whether she had their permission to be in the park. The officer transported her to a detention center where she was cited for violating Phoenix's 10:00 p.m. curfew for juveniles under the age of 16. She was fingerprinted, photographed, and eventually released to her mother.

On August 20, 1993, the juvenile court held a hearing on the alleged curfew violation. The juvenile's father testified on direct examination that he gave his daughter permission to go to her friend Richard's house and to be in the park across from that house. On cross-examination, however, the father admitted that he did not have specific knowledge that his daughter would be at the park. On re-direct examination, he stated that if he had known that she was going to the park he would not have forbidden her from doing so. The father also testified that he felt his daughter's activity in the park was reasonable and was done with his permission.

The juvenile court ruled that the state had proven beyond a reasonable doubt that the juvenile had violated the 10:00 p.m. curfew. The court adjudicated her an incorrigible child and imposed a $56.00 penalty. The juvenile filed a timely notice of appeal in which she presents the following issues:

1. Is Phoenix's curfew ordinance unconstitutional because it unduly restricts the rights of juveniles and parents?

2. In light of the testimony that the juvenile was out with her parents' permission, did the juvenile court abuse its discretion in finding beyond a reasonable doubt that she violated the curfew ordinance?

DISCUSSION

I. Constitutional Issues

A. Waiver

The state and the amicus curiae, City of Phoenix, argue that the juvenile has waived her constitutional objection to the curfew ordinance because, although her trial counsel ² raised the issue, he declined to recess the hearing for three weeks in order to brief his client's constitutional arguments.

A defendant may assert a constitutional right and then subsequently waive it, but "the state has a heavy burden to show such waiver once the right has been asserted." State v. Greenawalt, 128 Ariz. 150, 158, 624 P.2d 828, 836, cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Arizona courts indulge every reasonable presumption against a waiver of fundamental constitutional rights. Quinton v. Superior Court, 168 Ariz. 545, 549, 815 P.2d 914, 918 (App.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1295, 117 L.Ed.2d 518 (1992). A criminal defendant's waiver of constitutional rights must be express rather than implied, and the waiver must be voluntarily, knowingly and intelligently made. Id.

The juvenile did not waive her constitutional challenges to the curfew. The only suggestion of a waiver is trial counsel's decision not to accept a three-week continuance to brief the constitutional issues, and his request at the end of the hearing that the juvenile court enter its findings without receiving memoranda from the parties. These decisions do not meet the standards for an express, voluntary, knowing, and intelligent waiver.

B. Merits of the Constitutional Claims

The juvenile challenges the Phoenix curfew ordinance as violative of her fundamental rights under the United States and Arizona Constitutions. We first address her standing to bring these claims.

1. Standing

The juvenile clearly has standing to challenge the ordinance as an unconstitutional burden on her asserted right to freedom of movement. The juvenile court adjudicated her to be incorrigible for violating the ordinance's restrictions on her movement after 10:00 p.m.

The City of Phoenix contends that the juvenile has no standing to challenge the ordinance for overbreadth or vagueness because her conduct fell squarely within the ordinance's prohibitions against being out without her parents' specific permission. See Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974) (holding that a person whose conduct is clearly prohibited by an ordinance may not challenge it for overbreadth or vagueness). We conclude that the juvenile can assert the ordinance's overbreadth and vagueness.

An exception to the traditional standing rule is recognized in First Amendment cases. State v. Steiger, 162 Ariz. 138, 144, 781 P.2d 616, 622 (App.1989). A litigant may assert the facial overbreadth or vagueness of an ordinance even though his or her conduct is not constitutionally protected and clearly falls within the scope of the ordinance. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310 (1976) (vagueness); Franzi v. Superior Court, 139 Ariz. 556, 563, 679 P.2d 1043, 1050 (1984) (overbreadth); Steiger, 162 Ariz. at 144, 781 P.2d at 622 (vagueness). This exception reflects the concern that "the very existence of some statutes may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression. The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas." American Mini Theatres, Inc., 427 U.S. at 60, 96 S.Ct. at 2447 (citation omitted). For the exception to apply, the deterrent effect on First Amendment activities must be both real and substantial, and the statute must not be readily subject to a narrowing construction. Id. "There must be a realistic danger that the statute will significantly jeopardize recognized first amendment protections of individuals not before the court." Steiger, 162 Ariz. at 144, 781 P.2d at 622 (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)).

Walks in a park have been characterized as among historical "amenities of life" which, though not mentioned in the Constitution or Bill of Rights, give us our feeling of dignity, independence, and enjoyment of life. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). However, we do not believe that the juvenile's walk in the park was protected First Amendment activity. City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) ("It is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."). Nevertheless, we analyze the juvenile's overbreadth and vagueness challenges because of the curfew ordinance's potential to restrict activities that are protected under the First Amendment. We next discuss minors' fundamental rights and First Amendment freedoms.

2. Applicability of the Bill of Rights to minors

Until recently in this century, a minor was neither recognized

philosophically nor legally ... as having a right to do anything about the vicissitudes of his life, but only to await the action of others on his behalf or in his best interests.... The child's subjugated status was rooted in the same benevolent despotism that kings, husbands, and slave masters claimed as their moral right.

Patricia M. Wald, Making Sense Out Of The Rights Of Youth, 4 Human Rights 13, 15 (1974). The belief that minors possessed no rights was rooted in the legal fiction that childhood was a homogenous condition "continuing from the age of birth to the age of majority, at which time the young person is presumed to be capable of responsible adult decision making." Legal Rights of Children 116 (Robert M. Horowitz & Howard A. Davidson eds., 1984). This legal fiction failed to recognize that adolescents gradually become able to make intelligent and mature decisions for themselves and that they do so at varying ages.

The Supreme Court has flatly rejected this antiquated view of minors' rights: "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors,...