the ordinance which have been set forth in Section 2 of the ordinance. In short, the Mayor is directed to promulgate a "formal rule" only if the purposes of the ordinance will be furthered. With the deletion of the aforementioned two phrases pertaining to "maturity," Section 5(k) is constitutional.
Finally, plaintiffs challenge on the ground of vagueness one word used in the general text of the ordinance: they argue that the definition of "remain" set forth in Section 3(d) is ambiguous and hence the ordinance is vague. "Remain" is defined in Section 3(d) as "to stay behind, to tarry and to stay unnecessarily upon the streets, including the congregating of groups (or of interacting minors) totalling four or more persons in which any minor involved would not be using the streets for ordinary and serious purposes such as mere passage or going home." Section 3(d) then goes on to state that the word "remain" is used in a sense that makes the curfew ordinance the "remaining" type rather than "a mere prohibitory or presence type."
First, the court notes that whether the statutory language of a curfew ordinance prohibits "remaining" or "being" on the streets is insignificant because "remain" and "to be" are generally given synonymous interpretations at the enforcement level for the obvious reason they have as a practical matter in the curfew context no intelligible difference in meaning, and a judicial determination on this ground as to the validity of an ordinance is mere semantics and untenable. See, Note, Curfew Ordinances And The Control Of Nocturnal Juvenile Crime, 107 University of Pennsylvania Law Review 66, 98-100 (1958). In short, this court apprehends no significant difference with respect to meaning or constitutional validity between a "prohibitory or presence" type curfew and a "remaining" type curfew. Attempts to define words in terms of one type of curfew or the other is meaningless and can be confusing.
While the definition of "remain" set forth in Section 3(d) is cumbersome and more complex than need be, it is not unconstitutionally vague. Section 4 clearly states that it shall be unlawful for any person subject to the curfew ". . . to be or remain in or upon the streets within the Borough." Thus it is self-evident that a minor during the curfew hours must not be upon the streets of the Borough, unless he qualifies under one of the several exceptions set forth in the ordinance, and then he may be on the street only to the extent permitted by the exception. Therefore, the word "remain" as defined and used in the ordinance is not impermissibly vague.
In summary, the court holds that the curfew ordinance, with the aforementioned word and phrase deletions from curfew exceptions contained in Sections 5(g), 5(h) and 5(k), is not unconstitutionally vague. The ordinance prohibits minors of specific age groups from being on the streets of the Borough during clearly specified hours unless they are accompanied by a parent or otherwise qualify under one of the numerous exceptions. The exceptions are necessarily couched in language which classify the types of activities and the kinds of circumstances which are outside the proscription of the ordinance, it being impossible to compile an all-inclusive list of every factual situation which would warrant a minor being present on the streets during the curfew hours. The ordinance clearly gives fair warning as to what is proscribed and through mayoral advisory opinions (see Section 9) provides a means for the citizenry to determine officially in any given factual situation what is prohibited. Cf. Cox v. Louisiana, 1965, 379 U.S. 559, 568-569, 85 S. Ct. 476, 13 L. Ed. 2d 487 ("near" the courthouse not impermissibly vague, particularly in light of on-the-spot administrative interpretation by officials charged with enforcing statute upon which demonstrators could rely). The ordinance contains no broad invitation to subjective or discriminatory enforcement and does not deposit unbridled or unlimited discretion in the hands of the law enforcement officials.
The Constitution does not require impossible standards. United States v. Petrillo, 1947, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 91 L. Ed. 1877; see Roth v. United States, 1957, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. A more precise articulation of what the curfew ordinance intends would be most difficult, if possible at all, and the values which the void for vagueness doctrine furthers are adequately protected by this ordinance. Indeed the precision seemingly demanded by plaintiffs with respect to this curfew ordinance would, if deemed constitutionally required, make it next to impossible to draft any curfew ordinance, or for that matter, any criminal statute. It will always be true that the fertile legal "imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question." American Communications Assn. v. Douds, 1950, 339 U.S. 382, 412, 70 S. Ct. 674, 691, 94 L. Ed. 925. Furthermore, as Justice Holmes observed, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment . . .; he may incur the penalty of death." Nash v. United States, 1913, 229 U.S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232. In short, laws expressed in words of general applicability ultimately must be applied to specific factual circumstances. Thus, while there must be definiteness and ascertainable standards so that men of common intelligence can apprehend the meaning of the ordinance, perfect precision is neither possible nor constitutionally required. "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. at 110, 92 S. Ct. at 2300. The court holds that the Middletown curfew ordinance is not impermissibly vague.
SUBSTANTIVE DUE PROCESS RIGHTS OF THE MINOR
The Supreme Court has not yet articulated the special factors that determine how existing frameworks for analyzing the rights of adults are to be applied to minors. While the Court has recognized that minors are persons under the Constitution "possessed of fundamental rights which the State must respect," Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 511, 89 S. Ct. 733, 739, 21 L. Ed. 2d 731, it has dealt explicitly only with first amendment rights, Tinker v. Des Moines Independent Community School District, supra, (symbolic speech); West Virginia State Bd. of Education v. Barnette, 1943, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (mandatory flag salute), equal protection claims, Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (school desegregation), and procedural due process questions, Breed v. Jones, 1975, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (minor is put in jeopardy at juvenile court adjudicatory hearing and hence double jeopardy clause of fifth amendment prohibits his prosecution for same offense as an adult); Goss v. Lopez, 1975, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (right to notice and informal hearing before suspension or expulsion from school); McKeiver v. Pennsylvania, 1971, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (no right to jury trial in juvenile court proceedings); In re Winship, 1970, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (proof beyond reasonable doubt necessary for conviction of minors in juvenile proceedings); In re Gault, 1967, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (minors have right to notice, counsel, confrontation, cross-examination, and privilege against self-incrimination in juvenile court proceedings); Gallegos v. Colorado, 1962, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (inadmissibility of involuntary confessions against minors); Haley v. Ohio, 1948, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (same as Gallegos), all arising in the context of the educational system or juvenile court proceedings. The Court has refrained from analyzing the "totality of the relationship of the minor and the State." Ginsberg v. New York, 1968, 390 U.S. 629, 636, 88 S. Ct. 1274, 1279, 20 L. Ed. 2d 195, citing In re Gault, 1967, 387 U.S. 1, 13, 87 S. Ct. 1428, 18 L. Ed. 2d 527.
However, it is apparent that the constitutional rights of adults and juveniles are not co-extensive. In McKeiver v. Pennsylvania, 1971, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647, the Court declined to impose the right to a jury trial on juvenile court proceedings thereby denying to minors a fundamental right of the adult criminal justice system. First amendment rights of minors are not "co-extensive with those of adults." Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. at 515, 89 S. Ct. at 741 (Stewart, J., concurring). "[A] state may permissibly determine that, at least in some precisely delineated areas, a child -- like someone in a captive audience -- is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Ginsberg v. New York, 1968, 390 U.S. at 649-650, 88 S. Ct. at 1286 (Stewart, J., concurring). In assessing whether a minor has the requisite capacity for individual choice the age of the minor is a significant factor. See Rowan v. Post Office Dept., 1970, 397 U.S. 728, 741, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (Brennan, J., concurring). "The state's authority over children's activities is broader than over like actions of adults" and ". . . the mere fact a state could not wholly prohibit this form of adult activity . . . does not mean it cannot do so for children"; ". . . 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 . . .." Prince v. Massachusetts, 1944, 321 U.S. 158, 168, 170, 64 S. Ct. 438, 443, 88 L. Ed. 645. Thus this court holds that the conduct of minors may be constitutionally regulated to a greater extent than those of adults.
The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values "implicit in the concept of ordered liberty" protected by the due process clause of the fourteenth amendment. United States v. Wheeler, 1920, 254 U.S. 281, 293, 41 S. Ct. 133, 65 L. Ed. 270; see Griswold v. Connecticut, 1965, 381 U.S. 479, 500, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (Harlan, J., concurring); Palmer v. City of Euclid, 1971, 402 U.S. 544, 546, 91 S. Ct. 1563, 29 L. Ed. 2d 98 (Stewart, J., concurring); cf. Cox v. Louisiana, 1965, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471; Coates v. City of Cincinnati, 1971, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214; Shuttlesworth v. City of Birmingham, 1965, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176; Cox v. Louisiana, 1968, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487; Cox v. New Hampshire, 1941, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Edwards v. California, 1941, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119; Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 18 L. Ed. 745 (1867). One may be on the streets even though he is there merely for exercise, recreation, walking, standing, talking, socializing, or any other purpose that does not interfere with other persons' rights. As the Supreme Court stated in United States v. Wheeler, 1920, 254 U.S. 281, 293, 41 S. Ct. 133, 134, 65 L. Ed. 270:
"In all the states, from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom, with a consequent authority in the States to forbid and punish violations of this fundamental right. Corfield v. Coryell, 4 Wash.C.C. 371, 380, 381, 6 F. Cas. 546, Fed. Cas.No.3,230; Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 76, 21 L. Ed. 394."
No right is more sacred, or is more carefully guarded, by the liberty assurance of the due process clause than the right of every citizen to the possession and control of his own person, free from restraint or interference by the state. The makers of our Constitution conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man. Union Pacific Railway Company v. Botsford, 1891, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734; Olmstead v. United States, 1928, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944 (Brandeis, J., dissenting). Uninhibited movement is essential to freedom. Baker v. Bindner, W.D.Ky.1967, 274 F. Supp. 658, 662; see Aptheker v. Secretary of State, 1964, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992.
However, personal freedoms are not absolute, and the liberty guaranteed by the due process clause implies absence of arbitrary interferences but not immunity from reasonable regulations. Gere v. Stanley, 3 Cir. 1971, 453 F.2d 205, aff'g M.D.Pa.1970, 320 F. Supp. 852; see Zeller v. Donegal School District Board of Education, 3 Cir. 1975, 517 F.2d 600.
Thus, the question is whether the curfew ordinance is reasonable, with reasonableness being determined by weighing the legitimate interests of the state which the ordinance actually furthers against the competing liberty interests of the minor. This interest balancing-means test requires the court to weigh the governmental interests against the burden upon the minor's rights of freedom of movement and use of the public streets, and to examine the ordinance to insure that it in fact furthers the asserted governmental interests.
The ordinance was enacted to further the following Borough interests: (1) the protection of the younger children in Middletown from each other and from other persons on the street during the nighttime hours; (2) the enforcement of parental control of and responsibility for their children; (3) the protection of the public from nocturnal mischief by minors; and (4) reduction in the incidence of juvenile criminal activity. The court must decide whether the curfew actually advances these governmental interests. In exercising its police power, the state must further the "public health, safety, morals and general welfare" if its actions are not to be considered an arbitrary deprivation of liberty. See Euclid v. Ambler Realty, 1926, 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303; Village of Belle Terre v. Boraas, 1974, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797.
Obviously, the ordinance in fact promotes the safety of younger children by keeping them off the streets after 10:00 P.M. unless accompanied by an adult. It is also apparent that the ordinance, which imposes criminal penalties on the parent, encourages parents to supervise, control, and know the whereabouts of their children during the nighttime hours. The curfew undoubtedly inhibits the nocturnal accumulation of juveniles on the public streets with its attendant risk of mischief, and the ordinance prevents youths from aimlessly roaming the streets or congregating on street corners. Chief of Police Mrakovich testified that the principal complaints received by the Middletown police from the inhabitants of the Borough against juveniles under the age of eighteen during the nighttime hours were vandalism, prowling, loud noise, and disorderly conduct. The court can take judicial notice of the rapidly increasing crime rate among juveniles and that teenagers commit a high percentage of all serious crime. Indeed, plaintiffs' own expert witness, Dr. Thomas Rush, who had an expertise in criminology and sociology, testified that in 1970 youths under eighteen years of age accounted for 25% of all arrests during the nighttime hours. Chief of Police Mrakovich testified that the incidence of nocturnal juvenile crime was particularly high and increasing among persons sixteen and seventeen years of age. The police records introduced in evidence at the trial (see defendants' Exhibits Nos. 1 and 2) indicate that while there was a decrease in crime during curfew hours for both minors and adults, there was a greater relative decrease for the minors who are subject to the curfew. These records also corroborate Chief Mrakovich's testimony that there has been a high incidence of and increase in crime among sixteen and seventeen year olds in the last three years. Thus the evidence adduced at trial indicates that the curfew ordinance makes a substantial contribution to the alleviation of nocturnal juvenile criminal activity. The court, however, notes that as a practical matter the effectiveness of a curfew in achieving this objective is impossible to ascertain with scientific certainty.
However, even in the absence of any statistical data, it is apparent that some juvenile crime is prevented, such as the "spur-of-the-moment" nocturnal crime and mischief resulting from group or gang action, because accumulations of juveniles are easily detected and can be dispersed under the curfew. Moreover, the underlying assumption that likelihood of criminal activity decreases as the amount of control exercised by parents over the activities of their children increases is not an unreasonable tenet. The greater the breakdown in the social structure of the family unit or the greater the parental neglect, then the greater the chance of anti-social behavior by the minor. Thus, to the extent the curfew induces parents, under the pain of imposition of a criminal penalty, to exercise their control where they otherwise might allow their children freer rein and ignore their nighttime whereabouts and activities, it is effective in decreasing nocturnal juvenile crime and mischief and in strengthening the family unit.
For the foregoing reasons, the court concludes that the ordinance does in fact further the purposes for which it was enacted. Therefore, there is a rational relation between the end sought and the means chosen.
To determine whether the curfew ordinance is a reasonable exercise of the Borough's police power and thus constitutional, the court must balance the minor's constitutional right to freedom of movement and his concomitant constitutionally protected interest to be upon and use the public streets during the nighttime hours under circumstances other than those provided for in the curfew exceptions against the aforementioned governmental interests advanced by the ordinance.
The interest of minors is being abroad during the nighttime hours included in the curfew is not nearly so important to the social, economic, and healthful well-being of the community as the free movement of adults. In Re C, 1972, 28 Cal.App.3d 747, 105 Cal.Rptr. 113, 118-119. Moreover, the ordinance contains numerous exceptions that allow minors to be on the streets during the curfew hours when they have a specific, important, legitimate purpose for being there or if they are accompanied by a parent. The community has a special interest in the protection of children of immature years. Because of their lack of mature judgment, minors are subject to the continuing control and supervision of parents or guardians until they become of age or are emancipated. Minors are deprived of many privileges and rights -- e. g., the fundamental right to vote, to enlist in the military forces, to contract, to operate motor vehicles, to purchase or consume alcoholic beverages, to work at certain jobs, or to marry without parental consent. The state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor and the safety, peace, and order of the community. See Stanley v. Illinois, 1972, 405 U.S. 645, 652, 92 S. Ct. 1208, 31 L. Ed. 2d 551; Wisconsin v. Yoder, 1972, 406 U.S. 205, 230, 92 S. Ct. 1526, 32 L. Ed. 2d 15. The curfew ordinance recognizes the dangers to which minors are subject if allowed at nighttime to be upon the streets unattended by adults. Legislation peculiarly applicable to minors is necessary for their proper protection. Likewise, due to their immaturity, legislation peculiarly applicable to minors is warranted for the protection of the public, e. g., to protect the community from youths aimlessly roaming the streets during the nighttime hours.
The Supreme Court has recognized that the activities and conduct of minors upon the street may be regulated and restricted to a greater extent than those of adults. In Prince v. Massachusetts, 1944, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645, the Court upheld the constitutionality of a statute which prohibited minors from selling upon the streets or in other public places newspapers, magazines, periodicals, or other articles of merchandise even if accompanied by their parents. The Court, in rejecting the contention of a Jehovah Witness guardian that to prohibit her child from selling religious literature on the street was a violation of the first amendment and a denial of equal protection, reasoned as follows:
"Concededly a statute or ordinance identical in terms with section 69, except that is applicable to adults or all persons generally, would be invalid. Young v. California, 308 U.S. 147, [60 S. Ct. 146, 84 L. Ed. 155]; Nichols v. Massachusetts, 308 U.S. 147, [60 S. Ct. 146, 84 L. Ed. 155]; Jamison v. Texas, 318 U.S. 413 [63 S. Ct. 669, 87 L. Ed. 869]; Murdock v. Pennsylvania, 319 U.S. 105 [63 S. Ct. 870, 87 L. Ed. 1292, 146 A.L.R. 81]; Martin v. City of Struthers, 319 U.S. 141 [63 S. Ct. 862, 87 L. Ed. 1313]. But the mere fact a state could not wholly prohibit this form of adult activity, whether characterized locally as a 'sale' or otherwise, does not mean it cannot do so for children. Such a conclusion granted would mean that a state could impose no greater limitation upon child labor than upon adult labor. Or, if an adult were free to enter dance halls, saloons, and disreputable places generally, in order to discharge his conceived religious duty to admonish or dissuade persons from frequenting such places, so would be a child with similar convictions and objectives, if not alone then in the parent's company, against the state's command.