City of Sumner v. Walsh, 71451-7.

• Decision Date: 23 January 2003
• Docket Number: No. 71451-7.,71451-7.
• Citation: 148 Wash.2d 490,61 P.3d 1111
• Court: Washington Supreme Court
• Parties: CITY OF SUMNER, Respondent, v. Thomas Edward WALSH, Petitioner.

61 P.3d 1111

148 Wash.2d 490

CITY OF SUMNER, Respondent, v. Thomas Edward WALSH, Petitioner.

No. 71451-7.

Supreme Court of Washington, En Banc.

Argued March 14, 2002.

Decided January 23, 2003.

Jennifer Shaw, Aaron Caplan, Seattle, for Petitioner.

Patricia Bosmans, Asst. Sumner City Atty., Sumner, for Respondent.

Annette Monnett, Asst. Tacoma City Atty., Tacoma, amicus curiae on behalf of City of Tacoma.

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 29 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 Wash.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 Wash.2d 778, 881 P.2d 210 (1994). Furthermore, our decision in City of Seattle v. Pullman, 82 Wash.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 Wash.2d at 796, 514 P.2d 1059 (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 only applies to proceedings brought under the Uniform Declaratory Judgments Act. See Standow v. City of Spokane, 88 Wash.2d 624, 633, 564 P.2d 1145 (1977), overruled on other grounds by State v. Smith, 93 Wash.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...