In Interest of Doe, Docket No. 35004 (Idaho App. 3/31/2009), Docket No. 35004.
| Decision Date | 31 March 2009 |
| Docket Number | Docket No. 35004. |
| Parties | IN THE INTEREST OF: JOHN DOE, A MINOR CHILD STATE OF IDAHO, Plaintiff-Respondent, v. JOHN DOE, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. R. Barry Wood, District Judge. Hon. Mark A. Ingram, Magistrate.
Decision of the district court affirming the magistrate'fs decree, reversed.
Capitol Law Group; David A. Heida, Gooding, for appellant. David A. Heida argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
John Doe appeals from the district court's decision affirming the magistrate's decree that John Doe falls within the purview of the Juvenile Corrections Act for violation of a juvenile curfew ordinance. Specifically, he challenges the constitutionality of the ordinance which he violated. We reverse the decision of the district court and hold the ordinance unconstitutional.
John Doe, a minor, was the passenger in a vehicle stopped in Wendell, Idaho, at 1:30 a.m., for a traffic infraction. Doe was supposed to be staying at a friend's house that night, but had sneaked out to meet two other friends to look for a party. Doe was cited for violating the city's curfew ordinance. The Wendell ordinance states:
Section 1. Curfew Hours, Violations, and Exceptions.
A. Night Time Curfew: It shall be unlawful for any minor person under the age of eighteen (18) years to loiter, idle, wander, stroll, play, or otherwise be upon the public streets, highways, roads, sidewalks, alleys, parks, playgrounds, or other public grounds, or public places, building, or other property generally open to public use, or vacant lots within the City of Wendell, between the hours of 11:00 o'clock p.m. and 5:00 o'clock a.m.
B. Exceptions: The provisions of this section do not apply to a minor accompanied by his or her parents or legal guardians, or where the minor is upon an emergency errand or other legitimate business directed by his or her parents or legal guardian or custodian or school, having in their possession some form of documentation as to the business to be performed.
Section 4. Responsibility of Parents, or Other Person(s). It shall be unlawful for the parents or legal guardian of a minor under the age of 18 years to knowingly permit such minor to be in violation of any section of this ordinance. It shall also be unlawful for any person by any act to knowingly encourage, aid, or otherwise facilitate the violation of any section of this ordinance by any person under the age of eighteen (18) years.
Section 5. Penalties. Any person in violation of any section or provision of this ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Ordinance Number 192 of the City of Wendell, Idaho. Each violation of any section of this ordinance shall constitute a separate offense.
Doe moved to dismiss the petition in juvenile court on the ground that the ordinance is void for vagueness, an overbroad violation of First Amendment rights, a violation of the Equal Protection Clause, and a violation of a parent's fundamental right to parent a child. The magistrate denied Doe's motion, and Doe conditionally admitted to the violation, reserving his right to appeal from the denial of his motion. The district court affirmed the magistrate's denial. On appeal, Doe raises the same constitutional challenges to Wendell's curfew ordinance, while the state challenges this Court's jurisdiction to hear his appeal.
On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Id. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Id.
When this Court considers a claim that a statute or ordinance is unconstitutional, we review the trial court's ruling de novo since it involves purely a question of law. State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003); State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998); State v. Hansen, 125 Idaho 927, 930, 877 P.2d 898, 901 (1994); State v. Laramore, 145 Idaho 428, 430, 179 P.3d 1084, 1086 (Ct. App. 2007). There is a strong presumption of the validity of an ordinance, City of Lewiston v. Mathewson, 78 Idaho 347, 350, 303 P.2d 680, 682 (1956), and an appellate court is obligated to seek an interpretation of an ordinance that upholds its constitutionality. Cobb, 132 Idaho at 197, 969 P.2d at 246; State v. Newman, 108 Idaho 5, 13 n.12, 696 P.2d 856, 864 n.12 (1985).
The state contends that Doe was not yet found to be "within the purview" of the Juvenile Corrections Act (JCA or Act) when the magistrate denied his motion to dismiss and therefore he cannot appeal as a right under Idaho Code Section 20-528, which authorizes appeals from "orders or final judgments made by any court in matters affecting a juvenile within the purview of this act." The state asserts that this Court therefore lacks jurisdiction to hear Doe's appeal because Doe took his appeal from a non-appealable order without perfecting his permissive appeal. The state did not raise this objection to Doe's intermediate appeal to the district court. Nevertheless, we must consider this question because whether a court lacks jurisdiction is a question of law that may be raised at any time, Pizzuto v. State, 127 Idaho 469, 471, 903 P.2d 58, 60 (1995), and over which appellate courts exercise free review, State v. Barros, 131 Idaho 379, 381, 957 P.2d 1095, 1097 (1998); see also State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004).
Doe appealed from the magistrate's oral denial of his motion to dismiss, a pre-adjudicatory order. After accepting Doe's conditional admission of violating Wendell's curfew ordinance, the magistrate orally certified the question of the constitutionality of the ordinance for appeal prior to disposition. The magistrate then transferred the case to Doe's home county for final disposition. The record before us does not disclose any final disposition.
In a permissive appeal from an interlocutory order, a party must first obtain certification from the magistrate, and then move the district court to hear the appeal. Idaho Appellate Rule 12. Only after the district court has accepted the appeal will the party file a notice of appeal and begin the appellate process. Id. However, not all flaws in the appellate process are jurisdictional as the state asserts. State v. McCarthy, 133 Idaho 119, 123, 982 P.2d 954, 958 (Ct. App. 1999). "Failure of a party to timely take any . . . step in the appellate process [other than failure to timely file a notice of appeal] shall not be deemed jurisdictional, but may be grounds only for such action or sanction as the Supreme Court deems appropriate, which may include dismissal of the appeal." I.A.R. 21. A motion for an appellate court's acceptance of an interlocutory appeal is not a notice of appeal, but qualifies as "any other step" in the appellate process, which I.A.R. 21 provides is not jurisdictional. McCarthy, 133 Idaho at 123, 982 P.2d at 958. Indeed, the Idaho Supreme Court has accepted several interlocutory appeals without the appellant having obtained full permission as required by I.A.R. 12. See Taylor v. Maile, 142 Idaho 253, 257, 127 P.3d 156, 160 (2005); Idaho Dep't of Labor v. Sunset Marts Inc., 140 Idaho 207, 209, 91 P.3d 1111, 1113 (2004); North Pacific Ins. Co. v. Mai, 130 Idaho 251, 253, 939 P.2d 570, 572 (1997); Kindred v. Amalgamated Sugar Co., 118 Idaho 147, 149, 795 P.2d 309, 311 (1990). In each case, the Supreme Court treated the issue as a discretionary matter in deciding whether to allow the appeals to proceed, and exercised its discretion in favor of resolving the cases on the merits. See also McCarthy, 133 Idaho at 123, 982 P.2d at 958.
After denying Doe's motion to dismiss and engaging in a colloquy with Doe, the magistrate stated, "I'll accept the admission and certify the question prior to disposition." As in McCarthy, Doe in this case sought and obtained certification from the magistrate to file an interlocutory appeal, albeit an oral certification. Doe thereafter filed his notice of appeal. The district court heard the appeal and rendered a decision, without the state ever raising the issue of perfection of the appeal. The failure to obtain the permission of the district court in this interlocutory appeal did not deprive the district court of jurisdiction. Accordingly, the state's failure to raise this procedural objection in the district court waived the issue. See McCarthy, 133 Idaho at 123-24, 982 P.2d at 958-59. Under these circumstances, we will treat this appeal as an appeal by permission under I.A.R. 12. Because this appeal was brought pursuant to I.A.R. 12, we do not need to consider whether it qualifies as an appeal of right under I.C. § 20-528.
Doe asserts that the curfew ordinance violates the Idaho and United States constitutions three different ways.1 First, he asserts that the ordinance is void for vagueness because several phrases fail to inform the community of the conduct that is prohibited, or allow law enforcement officers too much discretion in the enforcement of the ordinance. See Laramore, 145 Idaho at 430, 179 P.3d at 1086; see also Cobb, ...
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