State Of Idaho v. Doe, 36606.

Decision Date05 May 2010
Docket NumberNo. 36606.,36606.
Citation231 P.3d 1016,148 Idaho 919
PartiesSTATE of Idaho, Plaintiff-Respondent,v.John DOE, Defendant-Appellant.
CourtIdaho Supreme Court

148 Idaho 919
231 P.3d 1016

STATE of Idaho, Plaintiff-Respondent,
John DOE, Defendant-Appellant.

No. 36606.

Supreme Court of Idaho,
Boise, February 2010 Term.

March 26, 2010.
Rehearing Denied May 5, 2010.

231 P.3d 1017


231 P.3d 1018


231 P.3d 1019


231 P.3d 1020
Capitol Law Group, PLLC, Boise, for appellant. David A. Heida argued.

Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

J. JONES, Justice.

John Doe appeals the district court's holding that Wendell City Ordinance No. 442 is not facially unconstitutional. We affirm.

Facts and Procedural History

John Doe, a minor, was a passenger in a vehicle stopped at 1:30 a.m. for a traffic violation. Doe was supposed to be staying at a friend's house, but sneaked out with two friends to look for a party. Doe was cited for a violation of Wendell City Ordinance No. 442 (“Ordinance”), a curfew ordinance, which provides:

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.
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 sought to dismiss the citation in juvenile court, asserting the Ordinance was facially unconstitutional. Specifically, Doe argued that the Ordinance was void for vagueness in violation of the Due Process Clause, was overbroad in violation of the First Amendment, denied Doe equal protection of the laws in violation of the Fourteenth Amendment, and denied the fundamental right of a parent to direct the upbringing of his child in violation of the Due Process Clause.1 The magistrate judge orally denied the constitutional challenge. As a result, Doe made a conditional admission of guilt under the Ordinance and the constitutional challenge was orally certified for appeal to the district court. The district court also orally rejected the constitutional challenge.

Doe appealed, raising the same constitutional challenge and seeking reversal of the district court's order. The appeal was assigned to the Court of Appeals. The Court of Appeals reversed the district court, finding that the Ordinance was unconstitutionally overbroad. The Court of Appeals did not reach the other constitutional issues. This Court then granted the State's petition for review.

231 P.3d 1021
Issues on Appeal

The following issues are presented on appeal: (1) whether the Ordinance is unconstitutionally overbroad or void for vagueness; (2) whether the Ordinance denies equal protection of the laws; and (3) whether Doe has standing to assert the alleged violation of his parents' rights to direct his upbringing.

Standard of Review

A petition for review of a decision of the Court of Appeals will only be granted “when there are special and important reasons” for review. Idaho App. R. 118(b). When the Supreme Court reviews a case previously decided by the Court of Appeals, “this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court.” In re Doe, 144 Idaho 819, 821, 172 P.3d 1094, 1096 (2007). “On appeal of a decision rendered by a district court while acting in its intermediate appellate capacity, the Court directly reviews the district court's decision.” In re Doe, 147 Idaho 243, 248, 207 P.3d 974, 979 (2009).

This Court freely reviews constitutional questions. Plummer v. City of Fruitland, 139 Idaho 810, 812, 87 P.3d 297, 299 (2004). When determining the constitutionality of a city ordinance, the Court will review the ordinance de novo. Id. A party challenging an ordinance on constitutional grounds bears the burden of establishing the ordinance's unconstitutionality and is required to “overcome a strong presumption of validity.” State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003). We are obligated to attempt to interpret the ordinance in a manner that upholds its constitutionality. Id.

Overbreadth and Vagueness

Doe argues that his conviction should be reversed because the Ordinance is unconstitutionally overbroad and vague. Doe contends that the Ordinance is overbroad because it prohibits activities that constitute protected speech under the First Amendment without providing an exception for carrying out those activities. Doe points to three portions of the Ordinance he contends are vague: (1) “loiter, idle, wander, stroll, play, or otherwise be upon;” (2) “where the minor is upon an emergency errand or other legitimate business;” and (3) “some form of documentation.” Doe does not argue that these provisions are unconstitutional as applied to him, but instead that the Ordinance is unconstitutional on its face because of the inclusion of the challenged phrases. Doe contends that these are imprecise terms that have not been defined, vesting police officers with virtually unfettered discretion to make arrests under the Ordinance and failing to inform the general public of the conduct made criminal. The State contends that Doe should not succeed in his facial challenge because the Ordinance does not reach a substantial amount of protected conduct and is not unconstitutionally vague in all its applications.

It is a key principle of constitutional law “that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839-40 (1973). As a result, a litigant need not be prohibited from any constitutionally protected behavior in order to mount a facial challenge to a legislative measure in order to protect the rights of others not before the court. Id. at 612, 93 S.Ct. at 2915-16, 37 L.Ed.2d at 839-40 However, because invalidating an ordinance based on a challenge of one who does not have standing in the traditional sense is “strong medicine,” courts should use care in reviewing facial challenges. Id. at 613, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840-41.

231 P.3d 1022

Where a facial challenge is made to an ordinance on overbreadth and vagueness grounds, a court must first decide whether the ordinance “reaches a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982). If the ordinance does not reach a substantial amount of protected conduct, then the overbreadth challenge will fail. Id. A court should then examine the ordinance on the facial vagueness challenge. Id. The ordinance will only be found void for vagueness if it is unconstitutionally vague in all its applications. Id. at 494-95, 102 S.Ct. at 1191-92, 71 L.Ed.2d at 368-70. Normally, where the complaining party has engaged in conduct that is clearly prohibited by the ordinance, he cannot argue that the ordinance is vague. Id. Accordingly, given this structure, the overbreadth challenge will be addressed first and then the vagueness challenge.


Doe argues that the Ordinance is facially overbroad. An ordinance may be facially overbroad if it: (1) seeks to regulate only constitutionally protected speech; (2) impermissibly burdens innocent associations; or (3) places regulations on “the time, place, and manner of expressive or communicative conduct,” particularly where the restriction “delegate[s] standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights.” Broadrick, 413 U.S. at 612-13, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840. The review of an ordinance varies depending on the type of conduct prohibited or criminalized by the enactment.

In this case, Doe argues that the Ordinance has incidental effects on expressive conduct and innocent associations rather than directly prohibiting protected speech. “[O]verbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment rather than pure speech, but doing so in a neutral, noncensorial manner.” Id. at 614, 93 S.Ct. at 2917., 37 L.Ed.2d at 841 Where conduct, as well as speech, is regulated by a statute and the State has a legitimate interest in regulating the conduct in question, there must be a demonstration of real and substantial overbreadth in order for a facial challenge to be successful. Id. at 615, 93 S.Ct. at 2917-18, 37 L.Ed.2d at 841-42. The party arguing overbreadth bears the burden of showing “ ‘from the text of [the law] and from actual fact,’ that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148, 159 (2003) (quoting New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 16-17 (1988)). This showing...

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