Sale ex rel. Sale v. Goldman, No. 27315.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM
Citation539 S.E.2d 446,208 W. Va. 186
PartiesAnna SALE, By and Through Her Next Friend and Parents, June and William SALE; Katelyn Genevieve Kimmons, By and Through Her Next Friend and Parent, Rebecca Kimmons; Carol Freas, M.D.; Lealah Pollack, By and Through Her Next Friend and Parent, Carol Freas; and the American Civil Liberties Union of West Virginia, Petitioners Below, Appellants, v. Mayor Jay GOLDMAN, Mayor of the City of Charleston; Chief Jerry Riffe, the Chief of Police for the City of Charleston; and the City of Charleston, Respondents Below, Appellees, Center For Community Interest And West Side Neighborhood Association, Intervenors Below, Appellees.
Docket NumberNo. 27315.
Decision Date19 July 2000

539 S.E.2d 446
208 W. Va. 186

Anna SALE, By and Through Her Next Friend and Parents, June and William SALE; Katelyn Genevieve Kimmons, By and Through Her Next Friend and Parent, Rebecca Kimmons; Carol Freas, M.D.; Lealah Pollack, By and Through Her Next Friend and Parent, Carol Freas; and the American Civil Liberties Union of West Virginia, Petitioners Below, Appellants,
v.
Mayor Jay GOLDMAN, Mayor of the City of Charleston; Chief Jerry Riffe, the Chief of Police for the City of Charleston; and the City of Charleston, Respondents Below, Appellees,
Center For Community Interest And West Side Neighborhood Association, Intervenors Below, Appellees

No. 27315.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 2000.

Decided July 19, 2000.

Dissenting Opinion of Justice Starcher July 20, 2000.


539 S.E.2d 449
Jason E. Huber, Forman & Crane, L.C., Charleston, West Virginia, Attorney for the Appellants

John R. Teare, Jr., Mark H. Dellinger, Bowles Rice McDavid Graff & Love, PLLC, Charleston, West Virginia, Attorney for the Appellees, Mayor of and Chief of Police for City of Charleston, and City of Charleston.

Michael W. Carey, Carey Hill & Douglas, PLLC, Charleston, West Virginia, Attorney for the Appellees, Center for Community Interest and West Side Neighborhood Association.

539 S.E.2d 447

539 S.E.2d 448
PER CURIAM

This appeal was brought by Anna Sale, by and through her next friend and parents, June and William Sale, petitioners below/appellants1 (hereinafter collectively referred to as "the Sales"), from a final order of the Circuit Court of Kanawha County finding a curfew ordinance promulgated and enforced by the City of Charleston, et al., respondents below/appellees2 (hereinafter collectively referred to as the "City"), constitutional and valid under the laws of this State.3 After a careful review of the briefs and record in this case, we affirm the circuit court's order.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying this appeal are generally not disputed by the parties. On December 1, 1997, the City, through its City Council, adopted a "Youth Protection Ordinance."4 The purpose of the ordinance includes the protection of minors from criminal victimization and exposure to criminal activity.5 The ordinance carries out its purpose by imposing a curfew on juveniles under the age of eighteen. The curfew becomes effective at 10:00 p.m. on Sunday, Monday, Tuesday, Wednesday, and Thursday nights, and lasts until 6:00 a.m. the following mornings. On Saturday and Sunday mornings, i.e., Friday and Saturday nights, respectively, the curfew operates from 12:01 a.m. until 6:00

539 S.E.2d 450
a.m. Numerous exceptions to these time limits include emergency situations and youngsters who are employed, emancipated, accompanied by their parents, or engaged in errands at their parents' direction. Further excluded from the curfew restriction are those minors who are exercising their constitutional right to freedom of speech, religion, and assembly and youth who are participating in activities sponsored by school, church, community, or government organizations. Finally, the ordinance allows affected individuals to apply for a permit to exempt them from the curfew's time limits for special circumstances not otherwise provided for therein, so long as the applicant has his/her parent's permission to participate or engage in the stated activity which has necessitated the exemption.

Violators of the curfew are subject to detention by law enforcement authorities and may be adjudicated delinquent. According to the Sales, curfew violators may be transported to their homes or to a holding facility until their parents can pick them up. In addition, those individuals who assist or acquiesce in the minor's disregard of the stated time limits and who are found guilty of this infraction are guilty of a misdemeanor and subject to a fine not to exceed $500 and/or a jail sentence of not more than thirty days.

Perceiving the imposition of a curfew to be an impermissible infringement of their constitutional rights, the Sales instituted this civil action in the Circuit Court of Kanawha County on March 24, 1998, seeking to enjoin enforcement of the ordinance. The Sales alleged that the ordinance operates to deprive them of their constitutional rights to equal protection, freedom of speech and association, due process, and freedom from unreasonable searches and seizures. Furthermore, the Sales complained that the ordinance violates W. Va.Code § 49-5-8(b) [1997].6 In addition, at least one parent/appellant complained that the ordinance abrogated her constitutional right to parental privacy.7

Following discovery, the circuit court held a hearing in this matter on July 15, 1998. Thereafter, on May 20, 1999, the circuit court issued its decision, ordering:

1. That Charleston City Code § 18-17(d)(11) is unconstitutional insofar as the Charleston City Council delegated to the police chief its legislative authority to create exceptions to prohibitions of the curfew ordinance, giving unbridled discretion to the police chief to issue permits without providing any meaningful standards by which the police chief may exercise his or her authority.
2. That Charleston City Code § 18-17(d)(11) must be interpreted so as to eliminate any discretion on the part of the chief of police, by requiring him or her to issue a permit when a parent or guardian makes a determination that there is a reasonable necessity for his or her child or ward to be in a public place during curfew hours;
3. The ordinance does not violate juveniles' equal protection of the laws, even when subjected to strict scrutiny, and is not overbroad or impermissibly vague;
4. The ordinance does not interfere with parents' right to raise their children as they see fit, free from undue interference by the State;
5. The ordinance is not invalid because it does not provide for an arrest protocol;
6. The ordinance does not make parents criminally liable for the actions of their children;
7. The ordinance does not violate the Fourth Amendment right to be free from unreasonable search and seizure; and
8. The ordinance does not violate the provisions of W. Va.Code § 49-5-8(b).

Subsequent to the issuance of the circuit court's order, on May 24, 1999, the Sales moved the circuit court to continue the stay

539 S.E.2d 451
of the ordinance's operation to permit an appeal of the circuit court's decision to this Court. By order entered June 2, 1999, the circuit court denied the motion for a stay of the curfew's implementation. As a result of the circuit court's adverse rulings, the Sales similarly requested this Court stay the ordinance's institution pending an appeal of the circuit court's decision on the merits. By order entered June 9, 1999, we denied the requested stay. The Sales then filed this appeal. We now consider the assignments of error.

II.

STANDARD OF REVIEW

This case presents an appeal from a final order of the circuit court denying injunctive relief to the Sales, and raises one statutory issue and several constitutional challenges to the curfew ordinance in question. This Court indicated in Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996), that "[b]ecause interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review." See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). However, when, as here, an action is tried before a judge without a jury, the trial court's findings of fact "shall not be set aside unless clearly erroneous[.]" W. Va. R. Civ. P. 52(a). We have also held that

[a] finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.

Syl. pt. 1, in part, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). See also Woo v. Putnam County Bd. of Educ., 202 W.Va. 409, 412, 504 S.E.2d 644, 647 (1998) ("Reversal of a factual finding under the `clearly erroneous' standard should not be done lightly.").

This Court is also reminded that "[w]hen the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). Accord Syl. pt. 3, Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994). Further, as was held in Syllabus point 1, in part, of State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965), "[c]ourts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Accord Syl. pt. 4, Tony P. Sellitti Constr. Co. v. Caryl, 185 W.Va. 584, 408 S.E.2d 336 (1991). It is with the above-mentioned standards in mind that we review the circuit court's order.

III.

DISCUSSION

A. Statutory Challenge Under W. Va.Code § 49-5-8

The Sales first contend that the curfew ordinance violates W. Va.Code § 49-5-8(b) [1997],8 which establishes very specific

539 S.E.2d 452
and limited instances in which a law enforcement...

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16 practice notes
  • Covington v. Smith, No. 30734.
    • United States
    • Supreme Court of West Virginia
    • March 17, 2003
    ...of error that are not argued in the briefs on appeal may be deemed by this Court to be waived."). See also Sale ex rel. Sale v. Goldman, 208 W.Va. 186, 199-200 n. 22, 539 S.E.2d 446, 459-60 n. 22 (2000) (per curiam) (deeming assignment of error that "is terse and lacks any authority to supp......
  • Jenkins v. City of Elkins, No. 11–1059.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...purported cross assignment of error to be insufficient to be preserved for appellate review. See Sale ex rel. Sale v. Goldman, 208 W.Va. 186, 199–200 n. 22, 539 S.E.2d 446, 459–60 n. 22 (2000) (deeming assignment of error that “is terse and lacks any authority to support it” to have been wa......
  • Jenkins v. City of Elkins, No. 11-1059
    • United States
    • Supreme Court of West Virginia
    • November 15, 2012
    ...purported cross assignment of error to be insufficient to be preserved for appellate review. See Sale ex rel. Sale v. Goldman, 208 W. Va. 186, 199-200 n.22, 539 S.E.2d 446, 459-60 n.22 (2000) (deeming assignment of error that "is terse and lacks any authority to support it" to have been wai......
  • State v. Boyd, No. 15-0878
    • United States
    • Supreme Court of West Virginia
    • January 19, 2017
    ...conclusions. We do not address conclusions; we address adequately briefed assignments of error. See Sale ex rel. Sale v. Goldman , 208 W.Va. 186, 199–200 n.22, 539 S.E.2d 446, 459–60 n.22 (2000) (deeming assignment of error that "is terse and lacks any authority to support it" to have been ......
  • Request a trial to view additional results
16 cases
  • Covington v. Smith, No. 30734.
    • United States
    • Supreme Court of West Virginia
    • March 17, 2003
    ...of error that are not argued in the briefs on appeal may be deemed by this Court to be waived."). See also Sale ex rel. Sale v. Goldman, 208 W.Va. 186, 199-200 n. 22, 539 S.E.2d 446, 459-60 n. 22 (2000) (per curiam) (deeming assignment of error that "is terse and lacks any authority to supp......
  • Jenkins v. City of Elkins, No. 11–1059.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...purported cross assignment of error to be insufficient to be preserved for appellate review. See Sale ex rel. Sale v. Goldman, 208 W.Va. 186, 199–200 n. 22, 539 S.E.2d 446, 459–60 n. 22 (2000) (deeming assignment of error that “is terse and lacks any authority to support it” to have been wa......
  • Jenkins v. City of Elkins, No. 11-1059
    • United States
    • Supreme Court of West Virginia
    • November 15, 2012
    ...purported cross assignment of error to be insufficient to be preserved for appellate review. See Sale ex rel. Sale v. Goldman, 208 W. Va. 186, 199-200 n.22, 539 S.E.2d 446, 459-60 n.22 (2000) (deeming assignment of error that "is terse and lacks any authority to support it" to have been wai......
  • State v. Boyd, No. 15-0878
    • United States
    • Supreme Court of West Virginia
    • January 19, 2017
    ...conclusions. We do not address conclusions; we address adequately briefed assignments of error. See Sale ex rel. Sale v. Goldman , 208 W.Va. 186, 199–200 n.22, 539 S.E.2d 446, 459–60 n.22 (2000) (deeming assignment of error that "is terse and lacks any authority to support it" to have been ......
  • Request a trial to view additional results

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