Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Treacy v. Municipality of Anchorage (05/14/2004) sp-5807

Treacy v. Municipality of Anchorage (05/14/2004) sp-5807

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


DAVID GALAWAY TREACY,                   )
                                   )    Supreme Court No. S-9800
             Appellant,                           )
                                   )    Superior Court No.
     v.                                                         )
                                   3AN-99-3396 CI
             Appellee.                             )    [No. 5807
                                   - May 14, 2004]
____________________________________    )
                                   )    Supreme Court No. S-10149
              Appellant,                     )
                                   )    Superior Court No.
          v.   )                                  3AN-99-7662 CI
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.                     )
____________________________________    )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,   Karen  L.  Hunt  and   Rene   J.
          Gonzalez, Judges.

          Appearances:   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.

          CARPENETI, Justice.


          This consolidated appeal challenges the juvenile curfew

ordinance enacted by the Municipality of Anchorage.  In one case,

David  Treacy  appeals from a hearing officers  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

governments  interests and the classifications it has  chosen  to

achieve  them.   For  the purpose of this facial  review  of  the

ordinances  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.


     A.   The Anchorage Ordinance

          A.   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 municipalitys 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  officers

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 Hunts 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

          a.   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 Willifords

vehicle enter the lot.

          Williford  contends that, on the night in question,  he

was  spending the night at a friends house.  While at his friends

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

Willifords 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 friends house when he began having an asthma  attack.

The  hearing officer was not persuaded by this claim, relying  on

Officer  Mitchells 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  officers

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 friends home to her  home  during

curfew  hours.   The vehicle was stopped by an  Anchorage  police

officer  after  it  crossed the center line.   After  discovering

Brennas age, the officer telephoned Brennas 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


          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  Anchorages cross-motion.  He  found

the  ordinance unconstitutional.  Judge Gonzalez determined  that

strict  scrutiny  was  the appropriate standard  to  examine  the

ordinances 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


          Anchorage appeals.

     D.   Consolidation

          Anchorage  moved  this  court  to  consolidate  Treacys

appeal with its own.  No objections were filed and we granted the



          In  an  administrative appeal, where the superior court

acts  as an intermediate appellate court, we directly review  the

agency action in question.6  As we substitute our judgment, it is

our  duty  to  adopt the rule of law that is most  persuasive  in

light  of precedent, reason, and policy. 7  We review the factual

findings  made by an administrative agency using the  substantial

evidence  test.8   Substantial  evidence  to  support  an  agency

decision  exists  when  there is  such  relevant  evidence  as  a

reasonable   mind  might  accept  as  adequate  to  support   the

conclusion. 9

          We review grants of summary judgment de novo and affirm

if  there  are no genuine issues of material fact and the  moving

party  is  entitled to judgment as a matter of law.10  We  review

constitutional  questions using our independent  judgment,  again

adopting  the  rule of law that is most persuasive  in  light  of

precedent, reason, and policy.11


     A.   Constitutionality of the Ordinance

          A.    In  addition  to  challenging  the  ordinance  as

unconstitutionally void for vagueness, the plaintiffs claim  that

the  ordinance violates a number of fundamental rights.  Included

in  the plaintiffs claim are the right to equal protection of the

laws,  the right of parents to raise their children, the right to

travel,  the  right  to  privacy, and the rights  to  freedom  of

expression  and  association.   A  duly  enacted  law  or   rule,

including   a   municipal   ordinance,   is   presumed   to    be

constitutional.12  Courts should construe enactments to  avoid  a

finding of unconstitutionality to the extent possible.13  This is

particularly  so  in  a case like this:  a  facial  challenge  as

opposed  to a challenge to the ordinance as applied.14   We  next

address   whether  the  ordinance  is  void  for   vagueness   or

          unconstitutional upon its face.

          1.   The ordinance is not void for vagueness because it is
               phrased with sufficient clarity so that ordinary people can
               understand what conduct is prohibited .
          As  generally  stated, the void-for-vagueness  doctrine

requires  that a penal statute define the criminal  offense  with

sufficient definiteness that ordinary people can understand  what

conduct  is  prohibited and in a manner that does  not  encourage

arbitrary and discriminatory enforcement.15

          The  plaintiffs argue that the ordinance contains words

which are not sufficiently defined so that an ordinary person  is

put  on  notice  as  to  what conduct is  prohibited.   Anchorage

contends  each word is sufficiently defined.  We agree  with  the


               a.   remain

          a.   a.   Under the Anchorage Municipal Code, a minor commits an

offense  if  he  or she remains in any public  place  or  on  the

premises  of  any  establishment within the  municipality  during

curfew  hours.16   The plaintiffs claim that the operative  word,

remain,  is vague because someone in a moving automobile must  be

characterized  as  lingering  or  staying  in  order  to  find  a

violation.  They assert that the Ninth Circuit came to  the  same

conclusion  in  Nunez ex rel. Nunez v. City of San  Diego17  when

faced  with an ordinances use of the words loiter, idle,  wander,

stroll  or  play.18   But  the language used  in  the  San  Diego

ordinance  struck down in Nunez  loiter, idle, wander, stroll  or

play   and  the  ordinances  lack  of  meaningful  exceptions  to

enforcement make it wholly different from the ordinance at  issue

in this case.  The juvenile curfew ordinance struck down in Nunez

was  enacted in 1947 and made it unlawful for a minor to  loiter,

idle,  wander, stroll or play in public during nighttime hours.19

The  ordinance  allowed for only four limited exceptions.20   The

Ninth  Circuit held that the phrase loiter, wander, idle,  stroll

or  play  was unconstitutionally vague and instead construed  the

ordinance as prohibiting minors presence in public during  curfew

          hours.21  The court ultimately struck down the ordinance because

it  lacked  exceptions sufficient to protect  the  constitutional

rights  of  minors  and their parents.22  As we  discuss  in  the

sections  that follow, we find that the exceptions to enforcement

of  the  Anchorage ordinance are sufficient to withstand a facial

challenge.  Nunez is, therefore, inapposite.

          The  plaintiffs  also rely on Brown v. Municipality  of

Anchorage23 to support their argument that remain is vague.  Brown

is  also  inapplicable  as  it is a loitering  case.   Here,  the

violation comes not from loitering, but because juveniles are  in

public  places during curfew hours.  To analogize to  Brown,  the

ordinance  at  issue  would  have  to  prohibit  juveniles   from

loitering at any time, not only during curfew hours.

          The  use  of  the  word  remain presents  no  vagueness

problem.  It has been used in other curfew ordinances24 and upheld

after  challenge.25   The  plaintiffs do not  provide  sufficient

reason  to  conclude that it is incapable of being understood  by

ordinary people.  The Anchorage ordinance makes it an offense for

a  minor  to  remain in a public place or on the premises  of  an

establishment   during  curfew  hours.   The   import   of   this

prohibition  is that minors must be at home during  curfew  hours

unless they qualify for an exception, to which we turn next.

          The   ordinance   contains   several   exceptions    to

prosecution under specified circumstances.  For example, a  minor

will  not  be  prosecuted under the ordinance if he  or  she  is:

accompanied by a parent or guardian, on an errand at the  written

instruction of a parent or guardian, involved in an emergency, at

work,  immediately  outside of his or her own home,  attending  a

supervised activity, exercising First Amendment rights, or either

married or an emancipated minor.26  The plaintiffs attack four of

these exceptions as impermissibly vague.

               b.   the emergency exception

          The  ordinance provides an exception to prosecution  if

the  minor was involved in an emergency.27  The plaintiffs  claim

          that this exception is vague because the ordinance defines an

emergency  as an unforeseen combination of circumstances  or  the

resulting  state  that  calls for immediate  action,28  which  it

further  specifies  as including, but not  limited  to,  a  fire,

natural disaster, automobile accident, or any situation requiring

immediate  action  to prevent serious bodily injury  or  loss  of

life.29  The plaintiffs argue that while the first statement could

lead  one  to  believe  that forgetting a  book  at  the  library

constitutes  an emergency, the second implies that the  situation

must  be  dire.   Such  a contradiction, they  claim,  makes  the

exception vague.

          Anchorage   correctly  notes  that  similar   emergency

exceptions have been upheld in other jurisdictions.  In  Hutchins

v.  District of Columbia,30 the court found a similar argument to

border on the frivolous.31  In fact, it is most likely because the

term emergency might connote so many different possibilities that

the  word is further defined to provide specific examples of what

could  constitute  an emergency under the statute.   Because  the

emergency  exception  adequately provides notice  of  what  could

constitute  an  emergency  under  the  ordinance,   it   is   not

impermissibly vague.

               c.   the sponsored event exception

          The  ordinance  also provides an exception  for  events

sponsored  by  the  Municipality of Anchorage,  Anchorage  School

District,  a  civic organization, or another similar entity  that

takes responsibility for the minor.32  The plaintiffs contend that

this  provision is vague because the ordinance does  not  specify

what sort of entity is similar to a civic organization or what it

means  for  such an organization to take responsibility  for  the


          The  court  in  Hutchins addressed a similar  vagueness

challenge.  The Hutchins court found that although the challenged

terms might be imprecise, they were not so ambiguous as to affect

the  curfew ordinances constitutionality.33  In this context, the

          addition of civic organization, or other similar entity simply

includes  within  the defense the general class of  organizations

that   may   be   thought   analogous   to   schools,   religious

organizations,  or governmental entities.34  We agree  with  this


          While  another similar entity and taking responsibility

for  the  minor  may not specifically define this exception,  the

context  of the sponsored event exception indicates what sort  of

activities  and  events qualify:  The activity must  be  formally

authorized,   supervised  by  adults,   and   sponsored   by   an

organization.    Formally   authorized,   supervised,   all-night

graduation  activities  would be covered;  a  private,  all-night

graduation   party  without  parental  supervision   would   not.

Similarly,  a  meeting sponsored by the American Civil  Liberties

Union  or the Anchorage School District and supervised by  adults

to  discuss the impact of the curfew on minors legal rights would

be  protected under this exception, whereas an informal gathering

of  students at a coffee shop to discuss the curfew would not  be

covered under the sponsored event exception.35

          Because  the  sponsored event exception is sufficiently

understandable, this provision is not void for vagueness.

               d.   the sidewalk exception

          Under the ordinance, a minor may remain outside of  his

or  her  home during curfew hours if he or she is on  the  public

right-of-way immediately abutting the minors residence or that of

a  next-door  neighbor, if the neighbor did not complain  to  the

police  department about the minors presence.36   The  plaintiffs

complain  that  the  sidewalk exception  is  impermissibly  vague

because it grants neighbors standardless discretion to declare  a

minor  in  violation  of  the  curfew  without  reason.   Such  a

provision, they argue, is similar to the ordinance struck down as

void for vagueness in Coates v. City of Cincinnati.37

          The Anchorage ordinance, however, is not comparable  to

that   in  Coates.   There,  the  ordinance  allowed  police   to

          criminalize conduct they found annoying.38  The term annoying was

what  the  court found vague because it provided no standard  for

proscribed  conduct.39   The ordinance here  does  not  use  such

language.  Rather, it allows minors to remain on the public right-

of-way  adjacent to their own homes and to remain on  the  public

right-of-way  immediately next to the residence  of  a  next-door

neighbor  unless the neighbor complains to the police department.

The fact that a neighbor has discretion to complain to the police

poses no vagueness problem, because as the D.C. Circuit stated in

Hutchins,   [i]t  is  irrelevant,  for  purposes  of   evaluating

vagueness, that a neighbor has discretion to call the police if a

juvenile  remains on the neighbors sidewalk during  curfew  hours

the  discretion exercised in this situation is analogous to  that

exercised   by  property  owners  under  trespass  laws.40    The

plaintiffs argument also fails because it is not the neighbor who

issues  the  citation,  but  local  law  enforcement.   That  the

neighbor makes a complaint simply means the minor has no  defense

under  this  exception.  The minor may still  remain  outside  if

another  exception applies.  Moreover, contrary to the  situation

in  Coates, a minor who remains on the sidewalk in front  of  the

minors   own   home   would  face  no  threat   of   prosecution.

Because the sidewalk exception is sufficiently clear and does not

give  undue  discretion to neighbors to implement the  ordinance,

the provision is not vague.

               e.   the First Amendment exception

          Finally,  the  ordinance also excepts from  prosecution

minors  who  are  engaged in protected First Amendment  activity,

such as the free exercise of religion, freedom of speech, or  the

right  of  assembly.41   The  plaintiffs  claim  that  the  First

Amendment  exception is vague.  They argue that there is  no  way

for  a minor or a police officer to determine what activities are

protected;  therefore, the ordinance fails to put the  public  on

notice  as  to  what activities are prohibited.  This  vagueness,

they  argue,  renders the exception meaningless unless  both  the

          officer and the minor are constitutional scholars.  The exception

is  also  meaningless,  they claim, as  it  merely  restates  the

obvious, i.e., that the law cannot bar constitutionally protected

activities.   They  argue that, because the  exception  fails  to

state what those activities are, it allows rights to be infringed

while the matter is sorted out in court.  We reject these claims.

          In  Ramos ex rel. Ramos v. Town of Vernon,42 a  similar

First  Amendment  exception was upheld,  even  though  it  lacked

examples  of  protected activity43 such as are  included  in  the

ordinance  at issue in this case.44  The Ramos court stated  that

[t]he  basic  protections of the First Amendment  are  ones  that

ordinary  citizens  know and comprehend.   Thus,  this  exception

provides  citizens with sufficient notice of the type of activity

that  falls  within the exception.45  And, as the Fourth  Circuit

found in Schleifer ex rel. Schleifer v. City of Charlottesville:46

          The   First   Amendment  exception   provides
          adequate notice to citizens.  It is perfectly
          clear  that  core First Amendment  activities
          such  as  political  protest   and  religious
          worship  after  midnight would be  protected.
          It  is equally clear that rollerblading would
          not.   Between  these poles may lie  marginal
          cases, which can be taken as they come.[47]
          We  conclude that, on its face, the ordinance does  not

violate the First Amendment.   In so holding, we do not close the

door  to  a  future  argument that the ordinance  as  applied  in

specific  circumstances may violate an individuals  rights  under

the First Amendment.

          2.   The ordinance does not violate constitutional guarantees of
               equal protection.
          The Equal Protection Clause of the Fourteenth Amendment

is  essentially  a directive that all persons similarly  situated

should  be treated alike.48  The general rule is that legislation

is   presumed  to  be  valid  and  will  be  sustained   if   the

classification drawn by the statute is rationally  related  to  a

legitimate state interest.49  But if a classification impinges  a

fundamental  right  or  disadvantages  a  suspect  class,50   the

          ordinance is subject to strict scrutiny.51

            The   plaintiffs  claim  the  ordinance   makes   two

impermissible classifications calling for disparate treatment  of

citizens.   First, they claim the ordinance treats persons  under

the  age  of  eighteen differently from those  over  the  age  of

eighteen.   Second, they allege the ordinance  treats  single  or

unemancipated  minors differently from those who are  married  or

emancipated.  We consider first whether the rights at  issue  are

fundamental,  and then whether the fact that minors are  involved

affects the level of scrutiny to be applied.

               a.   fundamental right

          a.   There is no question that the rights at issue in this case

the  rights to move about, to privacy, to speak  are fundamental.

But  Anchorage argues that we should apply an intermediate  level

of  scrutiny because the rights of children are not accorded  the

same  level  of protection as those of adults.  Before discussing

the level of scrutiny applicable to this case, we briefly address

the  nature of the right to move about.  The federal courts  have

generally  acknowledged a right to travel  without  defining  its

precise  contours.  For example, the United States Supreme  Court

has  said:   Undoubtedly the right of locomotion,  the  right  to

remove from one place to another according to inclination, is  an

attribute   of  personal  liberty  protected  by  the  Fourteenth

Amendment  to  the United States Constitution.52  Indeed,  it  is

apparent that an individuals decision to remain in a public place

of  his choice is as much a part of his liberty as the freedom of

movement inside frontiers that is a part of our heritage . . . .53

Like the federal courts, we have also recognized a right both  to

interstate and intrastate travel.54  Accordingly, we assume  that

the  right  to intrastate travel is fundamental, but  we  do  not

address its scope.55

               b.   level of scrutiny

          The plaintiffs contend that, because fundamental rights

are  implicated,  strict  scrutiny is the  appropriate  level  of

          review for this equal protection claim.  Anchorage contends that

intermediate scrutiny should apply because the rights of children

are not coextensive with those of adults and are entitled to less


          In  Bellotti  v. Baird,56 the Supreme Court  recognized

three  reasons  justifying the conclusion that the constitutional

rights  of  children cannot be equated with those of adults:  the

peculiar  vulnerability  of children;  their  inability  to  make

critical  decisions  in  an  informed,  mature  manner;  and  the

importance  of  the parental role in child rearing.57   Anchorage

contends   that,   because  Bellotti  limits  childrens   rights,

intermediate scrutiny is the applicable standard.  We reject this


          We  have  previously applied strict scrutiny to  review

the  constitutionality of laws that infringe upon the fundamental

rights of minors.  In State v. Planned Parenthood of Alaska,58 we

held  that  a minors right to privacy was deserving of  the  most

exacting scrutiny.59 While that case addressed a minors right  to

an  abortion, we will not create a false dichotomy by classifying

some  fundamental  rights as more deserving  of  protection  than

others.   Accordingly, we reject the municipalitys argument  that

intermediate scrutiny should apply.60

          Instead, we agree with the Ninth Circuit, which  stated

in Nunez, [t]he Bellotti test does not establish a lower level of

scrutiny  for the constitutional rights of minors in the  context

of  a  juvenile  curfew.  Rather, the Bellotti framework  enables

courts  to determine whether the state has a compelling  interest

justifying  greater  restrictions on  minors  than  on  adults.61

Therefore,  we  will  apply  strict  scrutiny  in  reviewing  the

plaintiffs  equal  protection claims  because  those  rights  are


               c.   narrowly tailored

          In  order for the ordinance to survive strict scrutiny,

the classification created must be narrowly tailored to promote a

          compelling governmental interest and be the least restrictive

means available to vindicate that interest.62

          The  principal objectives of the curfew ordinance  were

to  protect minors from crime and to curb juvenile crime.63   The

government has a compelling interest in each of these objectives.64

Whether the ordinance survives strict scrutiny, then, depends  on

whether the ordinance is narrowly tailored and whether there is a

less restrictive alternative to meet the municipalitys interest.

          To  be  narrowly tailored, there must be  a  sufficient

nexus   between   the   stated  government   interest   and   the

classification created by the ordinance.65  The curfew was enacted

because of an increase in juvenile crime.  The plaintiffs  claim,

however, that Anchorage did not have enough data before  it  when

enacting the ordinance.  The adequacy of statistical support  for

a curfew law was also challenged in Qutb v. Strauss.66  There, the

Fifth Circuit determined that,

          [a]lthough  the  city was unable  to  provide
          precise   data  concerning  the   number   of
          juveniles who commit crimes during the curfew
          hours,  or the number of juvenile victims  of
          crimes committed during the curfew, the  city
          nonetheless  provided  sufficient   data   to
          demonstrate  that the classification  created
          by  the  ordinance fits the states compelling
          Sufficient  data  was  provided here  as  well.   While

Anchorage passed the ordinance without any fact-finding,  it  had

the benefit of police department statistics concerning the number

of  juvenile  arrests between the hours of 11:00  p.m.  and  5:00

a.m.,  broken down by categories of crime, as well as the  number

of  juvenile  victims, the percentage of emergency  calls  during

that period, and comparative figures showing what percentages  of

calls  (for all categories of crimes) were received during  those

hours.   The  plaintiffs claim that a memorandum  issued  by  the

Anchorage  Police  Department the day  after  the  ordinance  was

enacted shows that no statistics were utilized. The passage  they

cite,  however,  merely states that the computer  was  unable  to

          provide a succinct report of the data, that the required

statistics  were  gathered by hand, and that  a  standard  report

format  should be developed to make gathering the figures  easier

in  the future.  The memorandum cited by the plaintiffs disproves

their own allegation.

          Not only did Anchorage rely on statistical data showing

an  increase  in juvenile crime, but it also heard  testimony  to

that  effect  from  law enforcement officers  regarding  juvenile

criminal  activity  during curfew hours.   When  it  enacted  the

ordinance, Anchorage considered sufficient data to determine that

a  youth  curfew  might  aid  in decreasing  juvenile  crime  and


          The  plaintiffs are correct that, since passage of  the

ordinance,  police reports show that only a small  percentage  of

violent and property crimes occurs during curfew hours.  But this

is  just as likely evidence of the curfews effectiveness as it is

evidence that the ordinance was not needed.  It could also be the

result of other factors, such as an overall decrease in crime, as

occurred in Alaska during the period in question.

          In sum, Anchorage considered sufficient data to provide

the   nexus   between  the  governments  interest  in  protecting

juveniles  and decreasing juvenile crime and the  classifications

created  by  the ordinance.  Moreover, statistics gathered  since

passage  of the ordinance do not cast substantial doubt  on  this


               d.   least restrictive means

          a.   We now turn to the last inquiry under our equal protection

analysis:  Is the ordinance the least restrictive means available

to  achieve  the municipalitys objective?  For the purpose  of  a

facial  review  in  this  declaratory  judgment  action,  as  the

ordinance concerns unemancipated minors who are moving  about  in

public after curfew hours without a recognized purpose or with an

improper  purpose,68 we believe the answer is yes.  The ordinance

affects  minors only from 11:00 p.m. to 5:00 a.m.  on  weeknights

          during the school year and 1:00 a.m. to 5:00 a.m. on weekends and

in  the summer.  It also contains numerous exceptions that  allow

minors  to  be  out after curfew hours for employment,  including

traveling  to  and  from  work  activities;  for  attendance   at

activities sponsored by civic organizations, including  traveling

to  and  from such events; in the event of emergency; for errands

done for their parents; for any purpose when they are accompanied

by   a   parent,   guardian,  or  adult  acting   with   parental

authorization;   and  in  front  of  their  own   homes   without

qualification.  We believe that, taken as a whole, the  ordinance

is   the  least  restrictive  means  available  to  achieve   the

municipalitys interests.69

          The   plaintiffs   argue  that   a   less   restrictive

alternative  would  be  to impose the curfew  as  a  probationary

measure  only on minors who violate the law.  But this would  not

meet  the ordinances stated purpose of protecting juveniles  from

becoming  victims of crime perpetrated by adults.  The plaintiffs

also argue that the municipality could attempt to reduce juvenile

crime  by  increasing recreational activities  for  youth  or  by

promoting  the  Anchorage Youth Court.  This too  would  fail  to

address the municipalitys concern for minors as victims of crime.

               e.   married or emancipated minors

          a.   The plaintiffs also allege that the ordinance violates equal

protection guarantees because it does not apply to minors who are

married  or emancipated.  But plaintiffs misunderstand the  legal

significance   of  marriage  and  emancipation.   The   ordinance

establishes  a  curfew for minors but exempts from prosecution  a

minor  who is married or who has had the disabilities of minority

removed in accordance with AS 09.55.540.70  These exemptions  are

redundant   since  both  married  and  emancipated   minors   are

considered adults under the law.  Alaska Statute 25.20.020 states

that [a] person arrives at the age of majority upon being married

according to law. . . . and AS 09.55.590(g) states that  [e]xcept

for specific constitutional and statutory requirements for voting

          and use of alcoholic beverages, a minor whose disabilities are

removed  for  general purposes has the power and capacity  of  an

adult, including, but not limited to the right to self-control. .

.  .   The  ordinance  does not apply to married  or  emancipated

minors because they are deemed adults by law.

               f.   facial challenge

          As  we noted, plaintiffs seeking facial invalidation of

a  law  must  establish at least that the law  does  not  have  a

plainly legitimate sweep.71  The  failure to meet this burden  in

this case does not preclude the possibility that the ordinance as

applied  in  other  situations might  be  unconstitutional.   And

although  the  ordinance could be enforced in ways that  bear  no

rational  connection to the municipalitys goals, or in ways  that

unduly  restrict the underlying substantive rights  of  movement,

privacy, and speech, we need not deal with such possibilities  on

this facial review.72  Because there is a sufficient nexus between

the  municipalitys interest and the classification created by the

ordinance,   and  because  the  ordinance  presents   the   least

restrictive alternative for meeting all of its stated  goals,  we

hold  that  the  ordinance  is not facially  unconstitutional  as

applied  to  minors  who  are out during  curfew  hours  with  no

recognized purpose or with an improper purpose.

          3.   The ordinance does not violate the constitutional rights of


          The  plaintiffs claim that the ordinance violates their

Fourteenth  Amendment right to due process because  it  infringes

upon  the  liberty interest of parents to determine how to  raise

their  children.  Anchorage argues that parents rights  to  raise

their  children are not unqualified and that, in any event,  they

do  not  supersede the governments concurrent right  to  regulate

childrens conduct.

          Under  the  Fourteenth Amendment to the  United  States

Constitution, no state shall deprive any person of life, liberty,

or property without due process of law.73  The due process clause

          guarantees more than fair process, however; it also includes a

substantive component that provides heightened protection against

government  interference  with  certain  fundamental  rights  and

liberty  interests. 74  Thus, the Fourteenth Amendment  prohibits

the  government from infringing on fundamental liberty  interests

unless  that  infringement  is  narrowly  tailored  to  serve   a

compelling state interest.75

          In   order  to  qualify  for  substantive  due  process

protection, the fundamental right must be deeply rooted  in  this

nations  history,  and the fundamental liberty interest  must  be

carefully  described.76   The  due process  clause  protects  the

fundamental  right  of parents to make decisions  concerning  the

care, custody, and control of their children.77  This interest was

recognized more than seventy-five years ago in Meyer v. Nebraska.78

We have also recognized that [t]he right to direct the upbringing

of  ones  child is undeniably one of the most basic of all  civil

liberties. 79  Thus, the plaintiffs are correct that parents have

a fundamental right to control the upbringing of their children.

          The  plaintiffs  contend that the curfew  on  its  face

interferes  with  the  rights of parents because  it  limits  the

freedom  of  parents  to authorize their children  to  engage  in

harmless  errands or entertainment.  They also contend  that  the

ordinance   limits  the  ability  of  parents  to   promote   the

development  of their children by gradually giving them  some  of

the   freedoms  and  responsibilities  of  adulthood.   Anchorage

responds that recognizing the plaintiffs argument would transform

any  case involving minors rights into one about parents  rights,

thereby avoid[ing] the Supreme Courts determination that children

do not possess all the freedoms of adults.80

          As  the United States Supreme Court noted in Prince  v.

Massachusetts,81 the state has a wide range of power for limiting

parental  freedom  and authority in things affecting  the  childs

welfare.82  Therefore, to the extent that the curfew is  enforced

against minors moving about in public with no purpose or with  an

          improper purpose, we agree with Anchorage.  We have already held

in  Part  IV.A.2 that the municipalitys interest in the ordinance

is  compelling.  We also find that the curfew is the  alternative

least   restrictive   of  parental  rights  while   meeting   the

municipalitys stated goals.  Parents can avoid the effects of the

ordinance  by  providing a note to their child,83 by accompanying

the  child  while in public after curfew hours, or by authorizing

someone over the age of eighteen to have care and custody of  the

child.   The ordinance has little impact on parents who  wish  to

authorize  their  children  to attend  civic  events,  hold  paid

employment,  or  act  in emergencies or on authorized  errands.84

Although the requirement of a timed, dated, and signed writing to

prove  that the minor is on a parental errand does give  us  some

pause,85  we  agree  with Anchorage that such  a  requirement  is

appropriate  to the reasonable enforcement of the ordinance,  and

we  believe that the writing requirement would not unduly  burden

parents  in its mainstream application.  We therefore  hold  that

the  ordinance  has a plainly legitimate sweep.86   As  with  the

plaintiffs  equal protection claim, although the ordinance  could

be  enforced  in  ways that bear no rational  connection  to  the

municipalitys goals, or in ways that more directly  infringe  the

rights  involved  (here,  the rights of  parents  to  direct  the

upbringing of their children), we need not deal with such  remote

possibilities on this facial review.87

          Because  the  municipalitys  interest  is  sufficiently

compelling,  and  because  the  ordinance  presents   the   least

restrictive alternative for meeting all of its stated  goals,  we

hold  that  the  ordinance is not facially unconstitutional  with

regard to minors who are out after curfew with no purpose or with

an  improper purpose, or to parents who knowingly permit  or,  by

insufficient control allow, their children to commit violations.

          B.     Treacy  Was  Properly  Found  Liable  Under  the
          1.   Exclusion of Treacys Trial Exhibits Was Within the
               Superior Courts Discretion.
          In  his  appeal to the superior court, Treacy attempted
          to introduce several exhibits into the record, including
Anchorage  Assembly  and  Anchorage  Police  Department  internal
memoranda  used in drafting the ordinance and an article  by  the
Justice  Policy Institute entitled The Impact of Juvenile  Curfew
Laws  in  California.  Anchorage moved to strike the exhibits  on
the  ground  that  they  were not part of the  agency  record  on
appeal,88  and Judge Hunt granted the motion without explanation.
Treacy  appeals this ruling, arguing that the exhibits  consisted
of legislative facts properly considered by an appeals court89 and
that  Judge Hunt should have ordered a de novo trial to  consider
the  constitutional  issues at stake since  the  hearing  officer
could  not  properly have ruled on the constitutionality  of  the
ordinance.90   Anchorage  contends  that  the  exhibits  are  not
legislative  facts and argues that, while Alaska  Appellate  Rule
609(b)(1)91 does afford the trial court discretion to hold a trial
de novo in an administrative agency review, such trials are rare.92
          We review the superior courts decision whether to order
a  de novo trial or a de novo examination of the record for abuse
of discretion.93  To find an abuse of discretion, we must be left
with  a  definite and firm conviction after reviewing  the  whole
record  that the trial court erred in its ruling.94  A  trial  de
novo  is  particularly appropriate when certain  issues  are  not
within  the  expertise of the reviewing body or when the  present
record is inadequate.95  A trial de novo is also appropriate when
the  procedures  of the administrative body are  inadequate,  for
instance when they do not provide due process,96 when the  agency
was  biased,97 or when the agency excluded important  evidence.98
Normally, however, a court will review an agency decision on  the
record.99   In  this  case,  where there  was  no  suggestion  of
inadequate  procedure  or  bias, the superior  court  acted  well
within  its  discretion in not granting a trial de  novo  on  the
broad  question of the constitutional validity of the  ordinance.
Since  there was no trial de novo, the superior court also  acted
within  its  discretion to review only the administrative  agency
record  under  Alaska  Appellate Rule  604(b)(1),  regardless  of
whether  the proposed exhibits contained legislative  facts.   It
          should be noted that, even had we ruled to the contrary, this
issue  would be moot, as we have considered most, if not all,  of
the excluded evidence in our facial review of the ordinance.
               2.   The word remain in the ordinance does not imply lack of
          1.   Treacy contests the application of the ordinance to his

particular  case.   He  argues that he cannot  be  said  to  have

remained  in public under the ordinance, which defines remain  in

part as to stay or to linger, because all of these words imply  a

lack  of  motion,  whereas  he was in a  moving  car.   Anchorage

replies  that  the intent of the ordinance is to  prevent  minors

from being on the streets or in public places after curfew hours,

and  that Treacys definition of remain is so excessively  precise

as to strain common sense.

           We hold that Treacy could not avoid citation under the
ordinance merely by moving from one place to another.100   Remain
does  not  necessarily imply a lack of motion;  as  we  discussed
above, a minor who is moving about in public without a purpose or
with  an improper purpose remains in public after a time when  he
or she should have gained lawful admittance to a place to which a
substantial group of the public does not have access.101  Although
other courts have held that remain in a juvenile curfew ordinance
simply refers to the minor being in public,102 Treacys case  does
not require us to rule on this issue.103  We hold that the hearing
officer  and  superior  court  did  not  construe  the  ordinance
improperly in Treacys case.
          I.    The ordinance is not void for vagueness.  The ordinance is
not   unconstitutional  on  its  face:   It   serves   compelling
governmental  interests, it is supported by a sufficiently  close
connection  between  those interests and the  classifications  it
utilizes  to  vindicate them, and it uses the  least  restrictive
alternative  in  doing  so.  Accordingly, we  conclude  that  the
ordinance  is constitutional under the United States  and  Alaska
Constitutions.   We therefore AFFIRM the decision in  3AN-99-3396
CI  holding the ordinance constitutional and REVERSE the decision
in 3AN-99-7662 CI holding the ordinance unconstitutional.
     1    11 F.3d 488 (5th Cir. 1993).

     2      The  amended  and  renumbered  ordinance  (with  1998
additions underlined) reads as follows:

          8.75.060  Minors:  curfew.
               A.   Definitions.  The following words, terms  and
          phrases,  when  used in this section,  shall  have  the
          meanings  ascribed  to them in this subsection,  except
          where   the   context  clearly  indicates  a  different
               Curfew hours means:
               1.   September through May:
                    a.   11:00   p.m.  on  any  Sunday,   Monday,
                         Tuesday,  Wednesday, or  Thursday  until
                         5:00 a.m. of the following day; and
                    b.   1:00 a.m. on any Saturday and Sunday until 5:00 a.m. of the
                         same day.
               2.   June through August: 1:00 a.m. on any day until 5:00 a.m. of
                    the same day.
               Emergency  means  an  unforeseen  combination   of
          circumstances  or the resulting state  that  calls  for
          immediate  action.   The  term  includes,  but  is  not
          limited   to,  a  fire,  natural  disaster,  automobile
          accident,  or any situation requiring immediate  action
          to prevent serious bodily injury or loss of life.
               Establishment means any privately-owned  place  of
          business  operated for a profit to which the public  is
          invited,  including but not limited  to  any  place  of
          amusement or entertainment.
               Guardian means:
               1.   A  person  who,  under court  order,  is  the
                    guardian of the minor; or
               2.   A public or private agency with whom a minor has been placed
                    by a court.
               Knowingly means, with respect to a conduct or to a
          circumstance  described by a provision of law  defining
          an  offense,  that a person is aware that  his  or  her
          conduct  is  of  that nature or that  the  circumstance
          exists; when knowledge of the existence of a particular
          fact  is  an  element of an offense, that knowledge  is
          established  if  a  person is aware  of  a  substantial
          probability  of  its  existence,  unless   the   person
          actually believes it does not exist.
               Minor means any person under the age of 18 years.
               Operator  means any individual, firm, association,
          partnership,  or  corporation operating,  managing,  or
          conducting  any establishment.  The term  includes  the
          members  or  partners of an association or  partnership
          and the officers of a corporation.
               Parent means a person who is:
               1.   A  natural parent, adoptive parent, or  step-
                    parent of another person; or
               2.   At least 18 years of age and authorized by a parent or
                    guardian to have the care and custody of a minor.
               Public  place means any place to which the  public
          or  a  substantial group of the public has access,  and
          includes  but  is  not  limited to  streets,  highways,
          sidewalks,  bridges, alleys, plazas, parks,  driveways,
          parking   lots,  and  the  common  areas  of   schools,
          hospitals,    apartment   houses,   office   buildings,
          transport facilities, and shops.
               Remain means to:
               1.   Linger or stay; or
               2.   Fail to leave the premises when requested  to
                    do  so  by  a  police officer or  the  owner,
                    operator, or other person in control  of  the
               Serious  bodily  injury means bodily  injury  that
          creates  a  substantial risk of death  or  that  causes
          death,  serious permanent disfigurement, or  protracted
          loss or impairment of the function of any bodily member
          or organ.
               A.   Offenses.
               1.   A  minor  commits an offense  if  he  or  she
                    remains  in  any  public  place  or  on   the
                    premises  of  any  establishment  within  the
                    municipality during curfew hours.
               2.   A parent or guardian of a minor commits an offense if he or
                    she knowingly permits, or by insufficient control allows, the
                    minor to remain in any public place or on the premises of any
                    establishment within the municipality during curfew hours in
                    violation of this section.
                    a.   Indifference as to the activities or whereabouts of the
                         minor shall be prima facie evidence of insufficient control.
               3.   The owner, operator, or any employee of an establishment
                    commits an offense if he or she knowingly allows a minor to
                    remain upon the premises of the establishment during curfew
               B.   Exceptions.
               1.   It is an exception to prosecution under subsections B.1. and
                    B.2. of this section if the minor was:
                    a.   Accompanied by his or her parent or guardian;
                    b.   On an errand at the written direction of his or her parent
                         or guardian without any detour or stop (written direction must be
                         signed, timed, and dated by the parent or guardian and must
                         indicate the specific errand);
                    c.   Involved in an emergency;
                    d.   Engaged in an employment activity, or going to or returning
                         from an employment activity, without detour or stop;
                    e.   On the public right-of-way immediately abutting the minors
                         residence or immediately abutting the residence of a next-door
                         neighbor, if the neighbor did not complain to the police
                         department about the minors presence;
                    f.   Attending, or going to or returning home from, without any
                         detour or stop, an official school, religious, or other
                         recreational activity supervised by adults and sponsored by the
                         municipality, Anchorage school district, a civic organization, or
                         another similar entity that takes responsibility for the minor;
                    g.   Exercising First Amendment rights protected by the United
                         States Constitution, such as the free exercise of religion,
                         freedom of speech, and the right of assembly; or
                    h.   Married or had disabilities of minority removed in
                         accordance with AS 9.55.540.
               2.   It is an exception to prosecution under subsection B.3 of
                    this section that the owner, operator, or employee of an
                    establishment promptly notified the police department that a
                    minor was present on the premises of the establishment during
                    curfew hours and refused to leave.
               D.  Violation of this section shall be punished by
          a fine of not more than $300.00.
               E.   As an alternative to the remedies, procedures
          and  penalties  provided  in  this  Title  and  section
          1.45.010, a violation of this section may be charged as
          a   civil  violation  subject  to  and  prosecuted   in
          accordance  with  Title 14 and in such  case  shall  be
          punishable  by  a  civil  penalty  in  accordance  with
          chapter 14.60.
     3     Subsequent amendment of the ordinance removed parental
liability.  See AMC 8.75.060(B) (2003).

     4    AMC 8.75.060(C)(1) (1998).

     5     Because  Sam Williford was found in violation  of  the
ordinance  in 1996, we assume he was cited under the  version  of
the curfew ordinance in effect at that time, AMC 8.05.440 (1995).

     6     See  N.  Alaska Envtl. Ctr. v. State, Dept of  Natural
Res., 2 P.3d 629, 633 (Alaska 2000).

     7     Cook  Inlet Pipe Line Co. v. Alaska Pub. Utils. Commn,
836  P.2d  343, 348 (Alaska 1992) (quoting Guin v. Ha,  581  P.2d
1281, 1284 n.6 (Alaska 1979)).

     8     Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998).

     9     Bouse  v.  Firemans Fund Ins. Co., 932 P.2d  222,  231
(Alaska  1997)  (quoting Miller v. ITT Arctic  Servs.,  577  P.2d
1044, 1046 (Alaska 1978)).

     10    Municipality of Anchorage v. Repasky, 34 P.3d 302, 305
(Alaska 2001).

     11     Chiropractors for Justice v. State, 895 P.2d 962, 966
(Alaska 1995).

     12    Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899-900
(Alaska 2003); Hilbers v. Municipality of Anchorage, 611 P.2d 31,
35 (Alaska 1980).

     13     State,  Dept of Revenue v. Andrade, 23  P.3d  58,  71
(Alaska 2001).

     14     In  deciding  a  facial challenge  to  a  statute  on
procedural  due process grounds, we have held that the challenged
act  would be invalid on its face only if no set of circumstances
exists under which the Act would be valid.  Javed v. Dept of Pub.
Safety, Div. of Motor Vehicles, 921 P.2d 620, 625 (Alaska  1996).
In  a  later  case  involving the right to privacy,  however,  we
emphasized that Javeds  no set of circumstances language is not a
rigid  requirement.  State v. Planned Parenthood  of  Alaska,  35
P.3d 30, 35 (Alaska 2001).  Yet even under a relaxed standard  of
facial   review  it  would  be  improper  to  declare  Anchorages
ordinance  invalid  on  its face if it has a  plainly  legitimate
sweep.   See  Troxel v. Granville, 530 U.S. 57, 85 &  n.6  (2000)
(Stevens,  J., dissenting).  For purposes of deciding this  case,
our  opinion  assumes that this lenient standard applies  to  our
facial  review of the curfew ordinance, concluding that,  despite
any  occasional  problems it might create in its  application  to
specific cases, the ordinance has a plainly legitimate sweep.

     15    Kolender v. Lawson, 461 U.S. 352, 357 (1983).

     16    AMC 8.75.60(b)(1).

     17    114 F.3d 935 (9th Cir. 1997).

     18    Id. at 940-41.

     19    Id.

     20    Id. at 938-39.

     21    Id. at 943-44.

     22    Id. at 949, 951-52.

     23    584 P.2d 35 (Alaska 1978).

     24    See, e.g.,  Qutb v. Strauss, 11 F.3d 488, 497 (5th Cir.
1993); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1252
(M.D. Pa. 1975) affd, 535 F.2d 1245 (3d Cir. 1976).

     25    Qutb, 11 F.3d at 497; Bykofsky, 401 F. Supp. at 1252.

     26    AMC 8.75.060(C)(1).

     27    AMC 8.75.060(C)(1)(c) (1998).

     28    AMC 8.75.060(A) (1998).

     29    Id.

     30    188 F.3d 531 (D.C. Cir. 1999).

     31    Id. at 547.

     32    AMC 8.75.060(C)(1)(f) (1998).

     33    Hutchins, 188 F.3d at 547.

     34    Id.

     35    We pass no judgment on whether such a meeting might be
included    within   the   First   Amendment   exception.     AMC

     36    AMC 8.75.060(C)(1)(e).

     37    402 U.S. 611 (1971).

     38    Id. at 612 n.1.

     39    Id. at 614.

     40    Hutchins v. Dist. of Columbia, 188 F.3d 531, 547 (D.C.
Cir. 1999).

     41    AMC 8.75.060(C)(1)(g).

     42     48  F.  Supp. 2d 176 (D. Conn. 1999), revd  on  other
grounds, Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003).

     43    Id. at 182.

     44    AMC 8.75.060(C)(1)(g) (1998).

     45     Ramos, 48 F. Supp. 2d at 182, revd on other  grounds,
Ramos  v.  Town of Vernon, 353 F.3d 171 (2d Cir. 2003); see  also
Adam  W. Poff, A Tale of Two Curfews (And One City): What do  Two
Washington,  D.C.  Juvenile Curfews Say About the  Constitutional
Interpretations of District of Columbia Courts and the  Confusion
Over  Juvenile Curfews Everywhere?, 46 Vill. L. Rev. 277,  291-92
(2001)  (discussing  exceptions for First  Amendment  activities,
similar to ordinance at issue here, that were upheld after  legal

     46    159 F.3d 843 (4th Cir. 1998).

     47    Id. at 854.

     48     City of Cleburne v. Cleburne Living Center, 473  U.S.
432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)).

     49    Id.

     50     Age is not a suspect class.  Gregory v. Ashcroft, 501
U.S.  452,  470 (1991).  Therefore, the plaintiffs  claim  strict
scrutiny  is  applicable  solely on the basis  that   fundamental
rights are at stake.

     51    Plyler, 457 U.S. at 216-17; Valley Hosp. Assn, Inc. v.
Mat-Su Coalition for Choice, 948 P.2d 963, 971 (Alaska 1997).

     52    Williams v. Fears, 179 U.S. 270, 274 (1900).  See also
Hutchins  v. Dist. of Columbia, 188 F.3d 531, 536-39  (D.C.  Cir.
1999)  (plurality opinion) (recognizing some Supreme  Court  case
law  suggesting  some  . . . generalized right  to  movement  but
declining  to  find  the  existence of a  fundamental  right  for
juveniles  to  be  in  a public place without  adult  supervision
during curfew hours).

     53     City  of Chicago v. Morales, 527 U.S. 41,  54  (1999)
(internal quotations and citations omitted).

     54     See Peloza v. Freas, 871 P.2d 687, 691 (Alaska  1994)
(recognizing  right to both interstate and intrastate  travel  as
affecting     constitutionality    of    durational     residency

     55     See Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993)
(assuming  without deciding that right to move about  freely  was
fundamental for purpose of reviewing juvenile curfew ordinance).

     56    443 U.S. 622 (1979).

     57    Id. at 634.

     58    35 P.3d 30 (Alaska 2001).

     59     Id.  at  45 (quoting Planned Parenthood of Cent.  New
Jersey v. Farmer, 762 A.2d 620, 633 (N.J. 2000)).

     60    We are aware that some courts have applied intermediate
scrutiny  when  evaluating the constitutionality  of  a  juvenile
curfew  ordinance.  See, e.g., Ramos v. Town of Vernon, 353  F.3d
171,  180-81  (2d Cir. 2003); Hutchins v. Dist. of Columbia,  188
F.3d  531,  541 (D.C. Cir. 1999); Schleifer ex rel. Schleifer  v.
City  of  Charlottesville, 159 F.3d 843,  847  (4th  Cir.  1998).
While  Bellotti, 443 U.S. at 634 (plurality opinion),  held  that
the  rights  of minors are not always coextensive with  those  of
adults,  the  Supreme Court has recognized that  there  are  many
situations in which the rights of children warrant the same level
of  protection.  See, e.g., In re Winship, 397  U.S.  358  (1970)
(holding  that  beyond  a reasonable doubt  standard  applies  to
juveniles  in  criminal proceedings); In re  Gault,  387  U.S.  1
(1967)  (holding  that  criminal  due  process  rights  apply  in
juvenile   delinquency   proceedings).    In   our   view,    the
determination  of  whether the minors right is  coextensive  with
that of an adult is not a question of whether the right itself is
fundamental.  Fundamental rights will be reviewed using a  strict
scrutiny  standard.  Rather, where minors are involved,  we  will
use  the  Belotti factors to assess the governments justification
for its infringement on those fundamental rights.

     61    Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935,
945  (9th Cir. 1997).  See also Qutb v. Strauss, 11 F.3d 488, 492
(5th  Cir. 1993) (subjecting juvenile curfew ordinance to  strict
scrutiny review).

     62     Planned Parenthood, 35 P.3d at 42 (when state  action
infringes upon fundamental right, state must demonstrate that  no
less restrictive alternative exists to accomplish its purpose).

     63     The  curfew  ordinance was aimed at  both  protecting
minors and curbing juvenile crime.  The ordinance noted that  the
municipality highly values the safety and welfare of our  minors,
and that the physical, psychological, and moral well-being of our
minors  is threatened by . . . increasing . . . street crime  and
juvenile  gang  activity.  It also stated that  during  the  late
night  and  early  morning  hours minors  in  public  places  are
particularly  susceptible to participate in  unlawful  activities
and  are  particularly  vulnerable to  become  victims  of  older
perpetrators of crime and that the Municipality has an obligation
to provide for the protection of minors.

     64     See,  e.g., Hodgson v. Minnesota, 497 U.S.  417,  444
(1990)  (the  state has a strong and legitimate interest  in  the
welfare  of  its young citizens, whose immaturity,  inexperience,
and  lack  of  judgment  may sometimes impair  their  ability  to
exercise   their   rights  wisely.);  Sable   Communications   of
California,  Inc. v. F.C.C., 492 U.S. 115, 126  (1989)  (We  have
recognized that there is a compelling interest in protecting  the
physical and psychological well-being of minors.).

     65    Nunez, 114 F.3d at 946.

     66    11 F.3d 488 (5th Cir. 1993).

     67    Id. at 493.

     68    We use this phrase to denote minors who are out during
curfew  hours  but  fall  under none of  the  exceptions  in  the

     69      See   Schleifer  ex  rel.  Schleifer  v.   City   of
Charlottesville,  159 F.3d 843, 851-52 (4th Cir.  1998)  (holding
that  juvenile curfew ordinance was least restrictive alternative
because it was only in effect for a few hours each night  and  it
contained  similar list of exceptions); Qutb, 11 F.3d  at  494-95

     70    AMC 8.75.060(C)(1)(h).

     71     Troxel  v.  Granville, 530 U.S. 57, 85 &  n.6  (2000)
(Stevens, J., dissenting).

     72     See State, Dept of Revenue, Child Support Enforcement
Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998) (holding that mere
fact  that  statute  may be applied unconstitutionally  need  not
result in facial unconstitutionality).

     73    U.S. Const. amend XIV,  1.

     74      Troxel,  530  U.S.  at  65  (quoting  Washington  v.
Glucksberg, 521 U.S. 702, 720 (1997)).

     75    Washington, 521 U.S. at 721.

     76    Id. at 720-21.

     77    Troxel, 530 U.S. at 66.

     78    262 U.S. 390, 399 (1923).

     79     In  re  Adoption of A.F.M., 15 P.3d 258, 266  (Alaska
2001)  (quoting  Flores  v. Flores, 598  P.2d  893,  895  (Alaska

     80     See  also  Schleifer ex rel.  Schleifer  v.  City  of
Charlottesville, 159 F.3d 843, 852-53 (4th Cir.  1998)  (adopting
similar analysis in rejecting challenge to Charlottesville curfew

     81    321 U.S. 158 (1944)

     82    Id. at 167.

     83     The  requirement  of  a note  was  deleted  from  the
ordinance by the Anchorage Assembly after the violations  charged
in  these  cases.  The current ordinance provides  the  following
exception:  Attending, or going to and returning from, any lawful
activity with the consent of the minors parent or guardian.   AMC
8.75.060(C)(1)(e) (2003).

     84     See,  e.g.,  Schleifer, 159 F.3d  at  853  (upholding
ordinance because no substantial impact on parents rights);  Qutb
v. Strauss, 11 F.3d 488, 495-96 (5th Cir. 1993) (same).

     85    But see supra n.83.

     86     See Troxel v. Granville, 530 U.S. 57, 85 & n.6 (2000)
(Stevens, J., dissenting).

     87     See State, Dept of Revenue, Child Support Enforcement
Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998).

     88    Alaska R. App. P. 604(b)(1)(A) governs actions in which
the  superior  court  acts as an appellate court  for  an  agency
proceeding  and  provides in relevant part that [t]he  record  on
appeal  consists of the original papers and exhibits  filed  with
the  administrative agency, and a typed transcript of the  record
of proceedings before the agency.

     89     See  State  v. Erickson, 574 P.2d 1, 7 (Alaska  1978)
(holding  that  appellate court may consider  legislative  facts,
those that provide background policy considerations of statute or
rule, even if those facts were not presented to trial court).

     90     See  Califano  v. Sanders, 430 U.S.  99,  109  (1976)
(Constitutional questions obviously are unsuited to resolution in
administrative hearing procedures.).

     91     Alaska R. App. P. 609(b)(1) provides in relevant part
that  [i]n an appeal from an administrative agency, the  superior
court may in its discretion grant a trial de novo in whole or  in

     92    See Southwest Marine, Inc. v. State, Dept of Transp. &
Pub. Facilities, 941 P.2d 166, 179 (Alaska 1997) (citing Kott  v.
City of Fairbanks, 661 P.2d 177, 180 n.1 (Alaska 1983)).

     93    See id. at 172, 179-80.

     94     Christensen v. NCH Corp., 956 P.2d 468,  473  (Alaska

     95     Eufemio  v.  Kodiak Island Hosp., 837  P.2d  95,  102
(Alaska 1992).

     96    State v. Lundgren Pac. Constr. Co., Inc., 603 P.2d 889,
896 (Alaska 1979).

     97     City  of Fairbanks Mun. Util. Sys. v. Lees, 705  P.2d
457, 460 (Alaska 1985).

     98    Id.

     99    Id.

     100    We review questions of statutory construction de novo.
See State v. Saathoff, 29 P.3d 236, 237 (Alaska 2001).

     101    See AMC 8.75.060(A) (Public place means any place  to
which  the  public  or  a substantial group  of  the  public  has

     102    See Ramos ex rel. Ramos v. Town of Vernon, 48 F. Supp.
2d 176, 182 (D. Conn. 1999), revd on other grounds, Ramos v. Town
of  Vernon,  353 F.3d 171 (2d Cir. 2003); Bykofsky v. Borough  of
Middletown, 401 F. Supp. 1242, 1252 (M.D. Pa. 1975).

     103    Aside from the exceptions, the ordinance suggests that
a  minor who leaves a public establishment at the request of  the
owner  and goes home, for instance, does not violate the  statute
while  in  transit.   See AMC 8.75.060(A) (Remain  means  to:  1.
Linger  or  stay; or 2. Fail to leave the premises when requested
to  do  so  by a police officer or the owner, operator, or  other
person  in  control  of  the premises.).   Whether  a  minor  has
remained  in  public after curfew hours is a matter for  case-by-
case determination.