People in Interest of J.M.

Decision Date23 January 1989
Docket NumberNo. 87SA252,87SA252
Citation768 P.2d 219
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, in the Interest of J.M., a minor child, Defendant-Appellant, and Concerning A.M., Respondent.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Paul H. Chan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Victor I. Reyes, Deputy State Public Defender, Pueblo, for defendant-appellant.

ROVIRA, Justice.

J.M., a juvenile, was convicted of loitering by a minor after curfew, in violation of Pueblo, Co., Municipal Code § 11-1-703 (1982). In this appeal, 1 J.M. claims that the ordinance is unconstitutional, both on its face and as applied, on the grounds that it violates his constitutionally protected liberty interests and impermissibly infringes on the first amendment rights of all minors. We conclude that the ordinance serves a legitimate state objective and thus does not violate either the United States or Colorado Constitutions. We therefore affirm the judgment of the trial court.

I.

At 11:45 p.m. on August 16, 1985, an officer was dispatched to investigate a reported vandalism at Vinewood Park in Pueblo, Colorado. Upon searching the park on foot, the officer found J.M. and a female companion hiding behind some bushes near the site of the alleged vandalism. The officer determined that J.M. had not committed the reported vandalism. However, because J.M. appeared intoxicated and was under eighteen years of age, he was taken into custody for possession of an alcoholic beverage and for violating section 11-1-703 of the Pueblo Municipal Code, which prohibits loitering by minors after curfew.

J.M. was tried in a juvenile delinquency proceeding and was convicted of violating section 11-1-703, and acquitted of possession of an alcoholic beverage. Upon his adjudication as a delinquent child, he was fined $25. J.M. appeals this adjudication on the basis that the Pueblo municipal ordinance is unconstitutional on its face and as applied. 2 We first address the constitutionality of the ordinance as applied to J.M.

II.

Pueblo, Co., Municipal Code § 11-1-703, states:

(1) Definitions. as used in this section:

(A) "Loitering" or "Loiter" shall mean remaining idle in essentially one location to be dilatory, to tarry, to dawdle and shall include but not be limited to standing around, hanging out, sitting, kneeling, sauntering or prowling.

(2) It shall be unlawful and a Class 2 municipal offense for any person under the age of 18 years to loiter on or about any street, sidewalk, curb, gutter, parking lot, alley, vacant lot, park, playground or yard, whether public or private, without the consent or permission of the owner or occupant thereof, during the hours between 10:00 o'clock P.M. and 6:00 o'clock A.M. according to the applicable time standard then in effect for the City, unless accompanied by a parent, guardian or other adult person over the age of twenty-one years.

J.M. contends that the ordinance impermissibly interferes with his constitutionally protected liberty interests in violation of Colo. Const. art. II, § 3, and the fifth and fourteenth amendments to the United States Constitution. He claims that the right to stroll, loiter, loaf, and use the public streets and facilities in a way that does not interfere with the personal liberties of others is a fundamental right which may not be infringed by the state absent a compelling interest.

Although not labeled a "fundamental right," the United States Supreme Court has defined the activities enumerated by J.M. as historical "amenities of life." In Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), the Court invalidated a Jacksonville vagrancy ordinance. In discussing the acts of walking, wandering, strolling, loafing, and loitering, the Court stated:

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformist and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

Id. at 164, 92 S.Ct. at 844. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (Douglas, J., concurring opinion, wherein he termed the freedom to walk, stroll or loaf a fundamental freedom). In Kent v. Dulles, 357 U.S. 116, 125-26, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958), a case dealing with the right to travel abroad, the Court concluded that freedom of movement and the right to travel are "a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment ..." and that these rights are "basic in our scheme of values." Many jurisdictions have treated as fundamental the right to freedom of movement and the right to use the public streets and facilities in a way that does not interfere with the liberty of others. See Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir.1931); People v. McKelvy, 23 Cal.App.3d 1027, 100 Cal.Rptr. 661 (1972); People v. Kearse, 56 Misc.2d 586, 289 N.Y.S.2d 346 (1968); State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971); Hayes v. Municipal Court, 487 P.2d 974 (Okla.1971); City of Portland v. James, 251 Or. 8, 444 P.2d 554 (1968); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522 (1967); Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207 (1968).

We agree that, as to adults, the rights of freedom of movement and to use the public streets and facilities in a manner that does not interfere with the liberty of others are basic values inherent in a free society and are thus protected by article II, section 3 of the Colorado Constitution and the due process clause of the fourteenth amendment to the United States Constitution. Because these liberty interests are fundamental, the state must establish a compelling interest before it may curtail the exercise of such rights by adults. We now examine whether a minor's freedom of movement also constitutes a fundamental right.

It is undisputed that minors, as well as adults, are protected by the Constitution and possess constitutional rights. "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority." Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976). While the United States Supreme Court has recognized that minors are persons "possessed of fundamental rights which the State must respect," Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969), it has not fully articulated how the existing framework for analyzing rights of adults is to be applied to minors.

It is clear, however, that the constitutional rights of adults and juveniles are not co-extensive. Both the United States Supreme Court and this court have recognized that the state has broader authority to control and supervise the activities of children than those of adults. See Carey v. Population Servs. Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); People in Interest of D.G., 733 P.2d 1199 (Colo.1987).

For example, the Court in Prince upheld the constitutionality of a statute which restricted a minor's use of the streets for selling religious magazines. After acknowledging that the statute would be invalid as to adults, it said:

The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment.

....

It is true children have rights, in common with older people, in the primary use of highways. But even in such use streets afford dangers for them not affecting adults.... What may be wholly permissible for adults therefore may not be so for children, either with or without their parents' presence.

....

... We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.

Prince, 321 U.S. at 168-70, 64 S.Ct. at 443-44. The Court also recognized that a minor's first amendment rights are not co-extensive with those of adults in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), where it upheld a statute prohibiting the sale of sexually explicit magazines to minors.

This augmented state authority over children's activities and the corresponding diminution of children's constitutional rights have also been demonstrated in cases concerning the privacy and procedural due process rights of minors. In considering a minor's privacy rights, the Court upheld a statute which required parental notification before a minor could obtain an abortion in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Court refused to extend the right to a jury trial to juvenile cases, thereby denying minors a right of the adult criminal justice system. We arrived at a similar conclusion in People in Interest of T.M., 742 P.2d 905 (Colo.1987).

Finally, the Court has indicated that a child's liberty interests are not co-extensive with those of an adult. In Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), it upheld the...

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