City of Panora v. Simmons

• Decision Date: 16 August 1989
• Docket Number: No. 87-1335,87-1335
• Citation: 445 N.W.2d 363
• Parties: CITY OF PANORA, Appellee, v. David SIMMONS, Appellant.
• Court: Iowa Supreme Court

Page 363

445 N.W.2d 363

83 A.L.R.4th 1035

CITY OF PANORA, Appellee, v. David SIMMONS, Appellant.

No. 87-1335.

Supreme Court of Iowa.

Aug. 16, 1989.

Connie A. Newlin, Des Moines, for appellant.

Randy V. Hefner of Van Werden, Hulse & Hefner, Adel, and William E. Bump, Stuart, for appellee.

Considered en banc.

LARSON, Justice.

David Simmons was found guilty of violating a Panora, Iowa, curfew ordinance which restricted the rights of children under eighteen to be in public places between ten o'clock p.m. and five o'clock a.m. The penalty imposed was small--a $1 fine plus surcharge and costs--but potential constitutional issues prompted us to grant discretionary review. We conclude that the ordinance is not unconstitutional on any of the grounds raised and therefore affirm.

The facts are undisputed. At 10:35 p.m., David Simmons, then fifteen, and a friend were skateboarding in a Panora shopping center. A police officer issued them citations for violating a Panora juvenile curfew ordinance which provided:

2.1-1.0301 CURFEW. A curfew applicable to minors is established and shall be enforced as follows:

1. Definition. The term "minor" shall mean, in this section, any unemancipated person below the age of eighteen (18) years.

2. Time limits. It is unlawful for any minor to be or remain upon any of the alleys, streets or public places or places of business and amusement in the city between the hours of ten (10) o'clock p.m. and five (5) o'clock a.m. of the following day.

3. Exceptions. The restriction provided by subsection 2.1-1.0301 shall not apply to any minor who is accompanied by a guardian, parent or other person charged with the care and custody of such minor, or other responsible person over eighteen (18) years of age, nor shall the restriction apply to any minor who is traveling between his home or place of residence and the place where any approved place of employment, church, municipal or school function is being held.

4. Responsibility of Adults. It is unlawful for any parent, guardian or other person charged with the care and custody of any minor to allow or permit such minor to be in or upon any of the streets, alleys, places of business, or amusement or other public places within the curfew hours set by subsection 2.1-1.0301, except as otherwise provided in subsection 2.1-1.0301.

5. Responsibility of Business Establishments. It is unlawful for any person, firm or corporation operating a place of business or amusement to allow or permit any minor to be in or upon any place of business or amusement operated by them within the curfew hours set by subsection 2.1-1.0301, except as otherwise provided in subsection 2.1-1.0301.

6. Enforcement. Any peace officer of this city while on duty is hereby empowered to arrest any minor who violates any of the provisions of Subsections 2.1-1.0301[2 & 3]. Upon arrest, the minor shall be returned to the custody of the parent, guardian or other person charged with the care and custody of the minor.

No criminal sanctions are provided by the ordinance, only a requirement that the police return the child to a parent or other responsible adult. Although a "fine" was imposed, apparently without authority under the ordinance, Simmons does not complain about that.

In the trial before the magistrate, neither Simmons nor the City was represented by an attorney. Simmons was assisted by his father, and the chief of police acted as both prosecutor and chief witness for the City.

At the magistrate trial, Simmons filed a motion to dismiss, raising some, but not all, of the constitutional objections now urged by him. The magistrate declined to rule on the motion to dismiss, stating that this was a matter to be ruled on by the district judge in the event Simmons was found guilty.

Simmons was found guilty, and he appealed. On the appeal to a district judge, Simmons was again assisted only by his father, although the City was represented at that point by its attorney. In the district court appeal, Simmons' father reminded the judge that the motion to dismiss filed in the magistrate proceeding was still unresolved and asked for a ruling. The motion to dismiss was overruled by the district judge, and Simmons' conviction was affirmed. When Simmons expressed an interest in seeking discretionary review of the case, an attorney was appointed to represent him at public expense. The discretionary review was granted; and at this point, several additional constitutional objections to the ordinance were raised by Simmons' attorneys.

The motion to dismiss in district court, both before the magistrate and the district judge, raised several constitutional issues but did not raise many of the issues frequently confronting courts in curfew cases, including equal protection, overbreadth, and interference with first amendment rights. Simmons attacked the ordinance only on the grounds of vagueness, unconstitutional interference with parenting rights, and unconstitutional interference with Simmons' rights of "gathering, walking or loitering," and our consideration of the ordinance is limited accordingly. Contrary to the assertions of the dissent, the first amendment was not mentioned in the motion to dismiss. The right to "gather, walk, or loiter" asserted by Simmons was not claimed in the context of speech or association, such as would be found in a protest march or similar form of "travel." We address in order the issues raised on appeal as to which error was preserved in the district court. ¹

I. Vagueness.

Simmons argues that the ordinance is too vague to pass constitutional muster.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to " 'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972) (footnotes omitted).

In incorporating these notions of fair notice and specific guidance for law enforcement officers, a two-part test has been adopted: the statute or ordinance must (1) give a person of ordinary intelligence fair notice of what is prohibited; and (2) provide an explicit standard for officers enforcing it. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); State v. Duncan, 414 N.W.2d 91, 96 (Iowa 1987); Saadiq v. State, 387 N.W.2d 315, 321 (Iowa 1986).

The City asserts that Simmons lacks standing to challenge the ordinance on vagueness grounds. If a statute does not reach a "substantial amount of constitutionally protected conduct" and is not impermissibly vague in all its applications, a party lacks standing to challenge the statute on vagueness grounds. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982).

As one writer has noted,

where the [alleged] vice is vagueness, the litigant asserting the vagueness defense must demonstrate that the statute in question is vague either in all possible applications or at least as applied to the litigant's conduct, and not simply as applied to some others.

L. Tribe, American Constitutional Law § 12-32, at 1036 (2d ed. 1988).

Simmons' vagueness attacks in district court were directed only at sections 4, 5, and 6. Sections 4 and 5 prohibit the acts of certain adults and "business establishments," respectively, which allow violations of the ordinance by minors. Simmons, who does not fall in either of those categories, could not be prosecuted under these sections and therefore lacks standing to complain of any vagueness in them.

Section 6 provides that a minor charged with violating the ordinance is to be returned to the minor's "parent, guardian or other person charged with the care and custody of the minor." Simmons complains that the phrase "other person charged with the care and custody of the minor" is vague, but in his case, he was simply ordered by the officer to go home; there is no question about whether the person to whom he was "returned" was a qualified person under the ordinance. Simmons has therefore not been affected by application of this section. In addition, section 6 is only an "after-the-fact" enforcement provision; it has no notice-giving function for purposes of a vagueness analysis.

On Simmons' appeal to this court, the main thrust of his vagueness argument is directed at section 3 which provides for the exceptions to the curfew. He claims that an "approved" place of employment, church, municipal or school function is too indefinite to be enforceable. The ordinance does not define the word "approved" nor does it specify who is to give such approval. The ordinance also provides that traveling to and from such activities is excepted, but the ordinance does not define "traveling." Simmons poses the question whether this means the traveling must be by vehicle or also includes walking. Also, the ordinance provides an exception for a minor who is accompanied by certain persons including parents, guardians, and ...