Treacy v. Municipality of Anchorage

Decision Date14 May 2004
Docket Number No. S-10149., No. S-9800
Citation91 P.3d 252
PartiesDavid Galaway TREACY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. Municipality of Anchorage, Appellant, v. Sam Williford, Tara Riordan, Individually and as mother of and next friend to Brenna Randall Riordan, a minor under the age of eighteen (18), Steve and Ann Treacy, individually and as parents of and next friends to David Treacy, a minor under the age of eighteen (18), Appellees.
CourtAlaska Supreme Court

Mark Rindner, Lane Powell Spears Lubersky LLP, Anchorage, for Appellant David Galaway Treacy.

Hugh W. Fleischer, Law Offices of Hugh W. Fleischer, Anchorage, for Appellees Sam Williford, Tara Riordan, and Steve and Ann Treacy.

Patricia Huna-Jines, Assistant Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellant (S-10149) and Appellee (S-9800) Municipality of Anchorage.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

This consolidated appeal challenges the juvenile curfew ordinance enacted by the Municipality of Anchorage. In one case, David Treacy appeals from a hearing officer's finding that he violated the ordinance and that the ordinance is constitutional. In a separate case, the Municipality of Anchorage appeals from a superior court determination that the ordinance is unconstitutional. We conclude that the municipality has a compelling interest in protecting juveniles and curbing juvenile crime, and that there is a sufficient connection between the government's interests and the classifications it has chosen to achieve them. For the purpose of this facial review of the ordinance's constitutionality, we also conclude that Anchorage used the least restrictive alternative available. We therefore uphold the ordinance against the claim that it is unconstitutional on its face.

II. FACTS AND PROCEEDINGS
A. The Anchorage Ordinance

The Anchorage Police Department recorded a sixty-two percent increase in the number of juvenile arrests between 1990 and 1994. Because of this increase, the Municipality of Anchorage began to take many proactive steps to curb juvenile crime, one of which was to strengthen the municipality's juvenile curfew law.

The Anchorage Municipal Assembly researched the curfew issue by reviewing other cities' curfew laws and recent court decisions regarding curfews. Concerned with the constitutionality of the existing ordinance, the Anchorage Municipal Assembly chose to fashion its new law after an ordinance that had recently been upheld by the Fifth Circuit Court of Appeals in the case of Qutb v. Strauss.1

On October 10, 1995 the Anchorage Municipal Assembly held a public hearing to discuss repeal of the existing curfew law and re-enactment of a more comprehensive one. The assembly heard testimony from a wide spectrum of speakers, and it considered recent crime statistics which indicated an increase in juvenile arrests for both violent crimes and property crimes.

The new ordinance was enacted into law as Anchorage Municipal Code (AMC) 8.05.440 (subsequently amended and renumbered in 19982). Under the ordinance, all persons under eighteen years of age, except for those emancipated or married, are banned from remaining in a public place or on the premises of an establishment during curfew hours. Curfew hours vary by season. From September to May the curfew hours are between 11:00 p.m. on weekdays and 1:00 a.m. on weekends through 5:00 a.m. During the summer months of June, July, and August the curfew hours are between 1:00 a.m. and 5:00 a.m. every day.

Under the curfew law as it existed at all times relevant to this appeal, a parent,3 guardian, or owner of an establishment can also be held liable for the actions of a minor who violates the curfew if the parent, guardian, or owner knowingly permits or, by insufficient control, allows the minor to remain in a public place during curfew hours. The ordinance has many exceptions to enforcement, including, among others, employment, attendance at official school or religious activities, errands approved by parents, and activities protected by the First Amendment.4

B. Treacy v. Municipality of Anchorage
1. Facts

On January 9, 1999 at approximately 1:35 a.m., Anchorage Police Officer Kevin Armstrong observed a vehicle make an illegal U-turn. He stopped the vehicle and spoke with the individuals inside, one of whom was David Treacy. Officer Armstrong checked the occupants' identification cards and discovered that Treacy was seventeen years old. Officer Armstrong also discovered that Treacy had been cited previously for violating the curfew ordinance. Officer Armstrong issued Treacy a $300 citation for a second offense under the ordinance. Before issuing the citation, Officer Armstrong attempted to determine if Treacy came within any exceptions under the ordinance, but determined that he did not.

Upon receiving the citation, Treacy handed Officer Armstrong a business card that stated:

Curfew Release

I am exercising my

First Amendment Rights!

This individual is exempt from prosecution under the Anchorage Curfew Law, as he/she is in full compliance with AO 95-195(1)(C)(1)(g).

After reading the card, Officer Armstrong told Treacy that he could challenge the citation before a hearing officer who would determine the validity of his First Amendment defense.

2. Proceedings

On March 10 a hearing was held regarding the curfew citation issued to Treacy. Treacy did not attend the hearing; however, his father, Stephen Treacy, was in attendance and Treacy was represented by counsel. Officer Armstrong was the only witness. In a written decision issued on April 21 the hearing officer found that the ordinance was constitutional and that Treacy had violated it on the night of January 9.

Treacy then appealed to the superior court. Superior Court Judge Karen L. Hunt found the ordinance to be constitutional. Judge Hunt also affirmed the hearing officer's determination that Treacy had violated the ordinance and that no competent evidence established that he had been exercising a First Amendment right.

Treacy now appeals Judge Hunt's order. Treacy, as well as his parents, are also named parties in the accompanying case involving Sam Williford.

C. Municipality of Anchorage v. Williford, et al.
1. Facts
a. Williford

The circumstances under which Williford was cited for violating the ordinance5 are in dispute. According to the citation, during curfew hours on August 15, 1996, Williford, a minor, was in the parking lot at the Willowcrest School in a vehicle with a friend. Police Officer Kevin Mitchell, who was at the school investigating potential vandalism, noticed Williford's vehicle enter the lot.

Williford contends that, on the night in question, he was spending the night at a friend's house. While at his friend's house, Williford claims that he began to experience pain related to a chronic intestinal disease. He telephoned his mother who told him to come home. Williford claims he was traveling home when he was pulled over by Officer Mitchell. The officer called Williford's mother and she explained that Williford was returning home because of his intestinal problem. But when he was pulled over, Williford told the officer that he stopped because he was experiencing an asthma attack, not an upset stomach. Because the officer noticed that Williford showed no signs of an asthma attack, did not have an inhaler, and showed no sign of being in a hurry to go home, Williford was cited for a curfew violation.

At the hearing on the citation, Williford and his mother defended on the grounds "that the defendant and his friend were at a friend's house when he began having an asthma attack." The hearing officer was not persuaded by this claim, relying on Officer Mitchell's testimony that Williford "showed no signs of distress, there was no sign of an inhaler and defendant showed no urgency about getting home." Based on the hearing officer's findings, Williford was cited for violating the ordinance and he received a fine.

b. Riordan

On February 22, 1998 Brenna Riordan, a minor, was a passenger in a car driven by a friend over the age of eighteen. Brenna was traveling from her friend's home to her home during curfew hours. The vehicle was stopped by an Anchorage police officer after it crossed the center line. After discovering Brenna's age, the officer telephoned Brenna's mother, Tara Riordan. Tara explained that Brenna had her permission to be out during curfew hours. Nonetheless, the officer cited Brenna for violating the ordinance. The hearing officer upheld the citation.

2. Proceedings

On June 9, 2000 Williford, the Riordans, and the Treacys (collectively "the plaintiffs") filed a complaint in the superior court for declaratory relief, claiming that the ordinance is unconstitutional and seeking to permanently enjoin Anchorage from further enforcement of the law. Following amendment of the complaint, the plaintiffs moved for summary judgment. Anchorage opposed the motion and cross-moved for summary judgment.

Superior Court Judge Rene J. Gonzalez issued a decision and order in March 2001 granting the plaintiffs' motion for summary judgment and denying Anchorage's cross-motion. He found the ordinance unconstitutional. Judge Gonzalez determined that strict scrutiny was the appropriate standard to examine the ordinance's constitutionality. While he determined that Anchorage had a compelling interest in promulgating the ordinance, he also concluded that the municipality did not use the least restrictive means to achieve its goal. Accordingly, Judge Gonzalez determined that the ordinance was not narrowly tailored to achieve its interest and, thus, that the ordinance was unconstitutional.

Anchorage appeals.

D. Consolidation

Anchorage moved this court to consolidate Treacy's appeal with its own. No objections were filed and we granted the motion.

III. STANDARD OF REVIEW

In an...

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