Judges: DUSTIN McDANIEL, Attorney General
Filed Date: 12/6/2010
Status: Precedential
Modified Date: 4/17/2021
The Honorable Shane Broadway State Senator
201 Southeast Second Street Bryant, Arkansas 72022-4025
Dear Senator Broadway:
This is my opinion on your questions about Saline County's existing nighttime juvenile curfew ordinance and a proposal to amend it to apply during the day. Your questions are:
1. Does a county have the authority under Arkansas law to enact a curfew, either daytime, nighttime, or both, for juveniles?
2. Does the proposed ordinance, which would amend Saline County's current ordinance by establishing a daytime curfew for juveniles, offend either the Arkansas or U.S. Constitution?
3. If a county has the authority to enact a curfew ordinance, can the ordinance be enforced inside the limits of each city within the county or would the ordinance only be enforceable in the unincorporated areas of the county?
In my opinion, an Arkansas county has clear authority to enact a nighttime juvenile curfew. I believe a county has authority to enact a daytime curfew as well, but there are plausible arguments to the contrary. For the reasons described below, I cannot confidently opine on the proposed ordinance's constitutionality but, if enacted, it will be entitled to a presumption of constitutionality. With respect to your third question, it is my opinion that, absent a municipality's consent and agreement, a county has clear and unequivocal authority to enforce its juvenile curfew ordinance only in unincorporated areas. *Page 2
A predecessor in this office opined that a city may enact a juvenile curfew. See Op. Att'y Gen.
Counties may "exercise local legislative authority not denied by the Constitution or by law." Ark. Const. amend.
A county's expressly-granted police power appears to be at least as broad as that of a city, which, my predecessor opined, may enact a juvenile curfew. Additionally, counties may exercise any local legislative authority not denied by law, while cities, being creatures of the legislature, have only such power as is bestowed by law.See, e.g., Jones v. American Home Life Ins. Co.,
But as noted above, county legislative authority exists only where "not denied by the Constitution or by law." Ark. Const. amend.
While I know of no state law generally denying or limiting a county's power to enact a nighttime juvenile curfew, 1 a daytime curfew might be subject to challenge under at least two laws. One provides that a county may not take legislative action "that applies to or affects the public school system. . . ." A.C.A. §
Here, the proposed amendment does not say why the county needs a daytime curfew or the result it is meant to achieve. Because it would apply only on school days during school hours, it could be interpreted as an effort to compel young people to attend school. Cf. Op. Att'y Gen.
Arkansas has a compulsory school attendance law. See
A.C.A. §
While I do not think it is particularly likely, a court might deem a daytime curfew that applies only on school days during school hours to be contrary to these "general laws of the state" concerning school attendance, or to impermissibly *Page 4 affect the public school system by additionally restricting the whereabouts of juveniles.
Laws that prohibit localities from legislating in areas affecting the public schools have been interpreted in Arkansas and elsewhere. InMears v. Little Rock Sch. Dist.,
A similar question arose in California, where cities have police power but no authority to legislate in the area of public education, and courts have held that state truancy laws are educational, not penal. Plaintiffs challenged a city's daytime curfew, which applied only on school days, alleging that the curfew was a truancy measure, thus educational and beyond the city's authority. The court rejected the argument, holding the curfew to be a valid exercise of the city's police power, advancing a public interest in protecting unsupervised juveniles from harm and preventing them from harming others. See Harrahill v.City of Monrovia, 104 Cal. App. 4th 761,
Decisions applying prohibitions on local laws that conflict with general state laws are similar to those involving alleged local interference with public schools. In Kollmeyer v. Greer,
Similar arguments were raised in Harrahill,supra. California cities may make law "not in conflict with general [state] laws." Id. at 767, quoting Cal. Const. art. XI, § 7. The court held that the local curfew was not in conflict with the general (truancy) laws, in part because they were not coextensive; conduct in violation of one is not necessarily in violation of the other. Seeid. at 768. The court also said that the state cannot be said to have preempted the relevant field because the state has legislated in the area of truancy, while the curfew is a police power measure. Seeid. at 770. Finally, the court stated that its conclusion was consistent with the facts that local daytime curfews had been in effect in California at least eight years and the legislature had not in that time enacted pervasive laws on the topic. See id. at 771. While I can offer no assurances, I believe a court probably would adopt reasoning like that described in Harrahill to uphold a county daytime juvenile curfew against a challenge citing statutory limitations like those in A.C.A. §
Finally with respect to county authority, and as noted in Op. Att'y Gen.
It is evident that the town's purpose could readily be accomplished by the enactment of an ordinance directly prohibiting the objectionable conduct. There is no need for the town to attain its objective indirectly by closing all places engaged in lawful business after midnight. In a similar case the Mississippi Supreme Court held invalid an ordinance that would have required drug stores, doctors, lawyers, and all businessmen to close their *Page 6 offices by ten o'clock at night. Goodin v. City of Philadelphia,
222 Miss. 77 ,75 So. 2d 279 (1954). Here, too, the sweep of the ordinance goes too far beyond the necessities of the situation.
Town of Dyess,
Although it is my opinion that a county may enact a curfew that applies at any time of day, a curfew's effective hours would surely be a factor in a court's decision of whether the "sweep of the ordinance" extends unreasonably past the "necessities of the situation" to be remedied by the curfew. So in this sense too, in my opinion, a county's authority to enact and enforce a daytime curfew is more limited than its authority with respect to a nighttime curfew. I believe a court would reject a Town of Dyess challenge to the proposed daytime curfew ordinance, but there can be no assurance in this regard.
Question 2 — Does the proposed ordinance, which would amend SalineCounty's current ordinance by establishing a daytime curfew forjuveniles, offend either the Arkansas or U.S. Constitution?
Existing case law provides no basis on which to opine on the proposed ordinance's constitutionality with any degree of confidence. It should be noted, however, that the ordinance, if enacted, will be presumed valid and will be enforceable until a challenger, who will bear the burden of proof, persuades a court that it is unconstitutional.See, e.g., Feland v. State,
None of the United States Supreme Court, the United States Court of Appeals for the Eighth Circuit, a United States District Court for an Arkansas district, the Supreme Court of Arkansas, nor the Arkansas Court of Appeals has decided a reported case addressing the constitutionality of any juvenile curfew, day or night. There is, accordingly, no binding precedent on which to rely in Arkansas.
While many cases from other jurisdictions involve constitutional challenges of nighttime juvenile curfews, I have found no case deciding a broad daytime juvenile curfew's constitutionality.5 Ordinarily, one would expect cases addressing *Page 7
nighttime curfews to be instructive by analogy. In this instance, however, the results of the nighttime curfew cases are remarkably inconsistent and therefore not particularly helpful in trying to predict how a court would assess any curfew ordinance. "Although less restrictive [nighttime] curfew regulations have been upheld with greater frequency, the cases do not indicate any consensus among thecourts."6 Danny R. Veilleux, Annotation, Validity,Construction, and Effect of Juvenile CurfewRegulations, 83 A.L.R.4th 1056, § 2[a] (1991)7 (emphasis added). One court characterized as "epic understatement" a scholar's observation of the absence of consensus among the courts. Brown v. Ashton,
Another commenter described the federal appeals court cases:
The federal circuits are inconsistent on the proper treatment of [constitutional] claims [challenging nighttime juvenile curfews]: not only do they disagree on exactly what freedoms are at issue and how fundamental they are, but they also have applied varying levels of scrutiny — with different results — when determining whether those freedoms are unconstitutionally burdened. Because even those circuits hostile to nonemergency juvenile curfews have not rejected them as inherently unconstitutional, the question presented by this fractured doctrine is not whether [nighttime] juvenile curfews are constitutional, but rather, what [nighttime] juvenile curfews are constitutional.
. . . [T]he circuits remain undeniably split on the constitutionality of [nighttime] juvenile curfews. The split involves wildly varying standards *Page 8 of review, significant disagreement over the rights at issue, and dramatic differences in the way in which cities must prove the need for a curfew.
Note, Juvenile Curfews and the Major Confusion over Minor Rights, 118 HARV. L. REV. 2400, 2400-2401, 2421 (2005) (footnotes omitted) [hereinafter Minor Rights]. "[I]nconsistent results" characterize the state court decisions as well. David A. Herman, Note, JuvenileCurfews and the Breakdown of the Tiered Approach to EqualProtection, 82 N.Y.U. L. REV. 1857, 1861 (2007).
The decisions consider nighttime curfew laws that, while similar in some respects to each other, are unique to each case. As noted above, none involves a general daytime curfew, so there is no discussion of whether a daytime curfew is more susceptible to constitutional challenge than a nighttime curfew owing to the fact that minors, like most everyone else, have more legitimate reasons to be in public during the day than late at night. The decisions address constitutional claims of several different types, and are rendered at various procedural stages of litigation. Some resolve facial challenges while others consider curfew laws applied to particular facts.
Constitutional challenges of daytime juvenile curfews have commonly been based on the Equal Protection and Due Process Clauses of the
As stated above in the quote from Minor Rights, supra, courts considering equal protection and due process claims have not agreed on the freedoms at issue or their *Page 9
importance. See id. at 2401 n. 12 and cases cited therein. Additionally, "[t]he courts . . . have disagreed on the appropriate level of scrutiny to apply. . . ." In re A.G., No. J220062, slip op. at 2 (Cal. Ct. App. July 28, 2010) (McDonald, J., concurring). See, e.g., Sale v. Goldman,
Even where the same level of scrutiny is applied, results differ.See, e.g., Commonwealth v. Weston W.,
The inconsistency in judicial approaches and conclusions on the constitutionality of juvenile curfews has generated a cottage industry of academic comment.8
Given the state of the law, my opinion on the constitutionality of the proposed ordinance would be little more than speculation. Again, however, it should be noted that a local curfew ordinance will be presumed to be valid and will be enforceable until a challenger sustains the burden of proving its unconstitutionality.
Question 3 — If a county has the authority to enact a curfewordinance, can the ordinance be enforced inside the limits of each citywithin the county or would the ordinance only be enforceable in theunincorporated areas of the county? *Page 10
As discussed in response to your first question, a county has adequate police power to enact a juvenile curfew. The constitutional and statutory provisions affirmatively establishing that power do not expressly impose any territorial limits on it, but limits unquestionably exist. No one would argue, for instance, that a county may generally and in the normal course enforce its ordinances within another county.
The general rule with respect to county authority within municipalities appears to be that a county "has no legal right to legislate for a municipality . . . upon any subject which is within the scope of the powers granted to the municipality, and particularly upon any matters involving the police power of the state." In reKnight,
"It is firmly established that there cannot be, at the same time, within the same territory, two distinct municipal corporations, 9
exercising the same powers, jurisdiction, and privileges." 2A Eugene McQuillin, The Law of MunicipalCorporations § 7:8, at 500 (3d ed. 1999) (footnote omitted). It is a "well settled principle that two municipal corporations cannot have co-existent control over the same territory and contemporaneously exercise essentially the same governmental powers in it. . . ." Cityof Galena Park v. City of Houston,
It is hardly to be supposed that it was the intention of any enactment . . . to authorize two agencies with co-ordinate power to have control and supervision over [a single matter] when the effect might be to enable each to thwart the other and to play at cross purposes.
Sanderson v. City of Texarkana,
As stated above, this office has opined that a city may impose a juvenile curfew. See Op. Att'y Gen.
While no law expressly states or even strongly implies that counties may act within municipal limits, Arkansas law does prohibit a county from taking "[a]ny legislative act that conflicts with the exercise by municipalities of any expressed, implied, or essential powers of municipal government. . . ." A.C.A. §
One might argue that the statute is evidence that a county has general legislative authority within municipal boundaries so long as its actions therein do not create a conflict described by the statute. One might argue on the other hand that, given municipalities' limited but real extraterritorial jurisdiction (see, e.g., A.C.A.
A number of Arkansas cities have enacted juvenile curfews.See, e.g., Little Rock Code of Ordinances §§ 17.5-21 to-28, North Little Rock Code of Ordinances §§ 66-96 to-102, Pine Bluff Code of Ordinances §§ 14-121 to-127. A county's attempt to enforce its own curfew in any such municipality would create a clear conflict and would be prohibited by A.C.A. §
A closer question may arise when a municipality has not enacted its own curfew. It might be argued that such a city has notexercised (within the meaning of that word in the statute) any municipal power at all with respect to curfews and therefore that the county is free to act in the area; that a county legislative act *Page 12 cannot create an impermissible conflict unless a municipality has affirmatively exercised its power by enacting its own ordinance or taking some other action. An advocate of this position might cite the rule of statutory construction that every word of a legislative act is presumed to have meaning. See, e.g., White County, supra. It can be argued, in other words, that the phrase "the exercise by municipalities of" would be without meaning or effect if the statute were held to prohibit county encroachment on unexercised municipal power.
One could counter that officials of a city without a curfew may in fact have exercised the city's authority by considering enacting a curfew but determining instead that one was not necessary or appropriate given local conditions. Or one might advance the views that county action in an area of municipal authority conflicts with the municipality's ability to exercise its power at some time in the future, and that such a conflict is prohibited by the statute. I expect that a court would hold that an area clearly within a city's legislative authority is generally off-limits to the county even where the city has not affirmatively acted. A predecessor in this office cited A.C.A. §
Arkansas law provides that a county may, "[f]or any public purpose, contract or join with . . . any political subdivision. . . ." A.C.A. §
Additionally, "[i]t is well settled that a law is unconstitutionally vague under due-process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited. . . ."Landmark Novelties v. Arkansas State Bd. of Pharm.,
One court, noting uncertainty about county authority within city limits, stated that "it is fundamentally a legislative task to define intergovernmental relationships between cities and counties."Madison County v. Foxx,
Based on all the law described above, it is my opinion that, absent a municipality's consent and agreement, a county is clearly and unequivocally empowered to enforce its juvenile curfew ordinance only in unincorporated areas.
Assistant Attorney General J. M. Barker prepared this opinion, which I approve.
Sincerely,
DUSTIN McDANIEL Attorney General
Mears v. Little Rock School District , 268 Ark. 30 ( 1980 )
Town of Dyess v. Williams , 247 Ark. 155 ( 1969 )
Jennings v. State , 69 Ark. App. 50 ( 2000 )
White County v. Cities of Judsonia, Kensett, and Pangburn , 369 Ark. 151 ( 2007 )
Feland v. State , 355 Ark. 573 ( 2004 )
Walker v. State , 308 Ark. 498 ( 1992 )
Qutb v. Strauss , 11 F.3d 488 ( 1993 )
nancy-hodgkins-colin-hodgkins-and-caroline-hodgkins-by-their-next-friend , 355 F.3d 1048 ( 2004 )
Hutchins, Tiana v. DC , 188 F.3d 531 ( 1999 )
Harrahill v. City of Monrovia , 104 Cal. App. 4th 761 ( 2002 )
Thanh Thuy Vo v. City of Garden Grove , 115 Cal. App. 4th 425 ( 2004 )
gabriel-nunez-a-minor-by-rene-nunez-his-guardian-ad-litem-jennifer , 114 F.3d 935 ( 1997 )
daniel-schleifer-a-minor-by-barry-schleifer-his-father-william-mccutcheon , 159 F.3d 843 ( 1998 )
In Re Knight , 55 Cal. App. 511 ( 1921 )
Brown v. Ashton , 93 Md. App. 25 ( 1992 )
In Re Spagnoletti , 122 Ohio App. 3d 683 ( 1997 )
Madison County v. Foxx , 636 So. 2d 39 ( 1994 )
State Ex Rel. Audrain County v. City of Mexico , 355 Mo. 612 ( 1946 )
C. Galena Park v. City Houston , 133 S.W.2d 162 ( 1939 )
Bykofsky v. Borough of Middletown , 401 F. Supp. 1242 ( 1975 )