APPEAL from the Circuit Court of Ogle County; the Hon. ALAN W.
CARGERMAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendants appeal from their conviction in the Circuit Court of Ogle County for violation of the Illinois juvenile curfew law (Ill. Rev. Stat. 1973, ch. 23, par. 2371).
The relatively simple and, for the most part, undisputed facts may be summarized as follows: In the early morning hours of March 25, 1973, Cynthia Chambers, 17 years of age, her sister, Patricia Chambers, 15 years of age, and a friend who is not involved in this appeal were in a car driven by Cynthia in the rural area of Ogle County. At approximately 1 a.m. their car was parked on a one-lane bridge with its lights out. An Ogle County deputy sheriff saw the darkened vehicle as he drove by on patrol. As he approached the bridge, the car's lights came on and it proceeded across the bridge. When the deputy followed her car, Cynthia stopped and got out to speak to him. After several questions he determined that the girls were of "curfew age" and that no adult accompanied them. He arrested them both for curfew violation.
The curfew statute under which defendants were convicted reads in pertinent part:
"It is unlawful for a person less than 18 years of age to be present at or upon any public assembly, building, place, street or highway at the following times unless accompanied and supervised by a parent, legal guardian or other responsible companion at least 21 years of age approved by parent or legal guardian or unless engaged in a business or occupation which the laws of the State authorize a person less than 18 years of age to perform:
1. Between 12:01 a.m. and 6:00 a.m. Saturday;
2. Between 12:01 a.m. and 6:00 a.m. Sunday; and
3. Between 11:00 p.m. on Sunday to Thursday, inclusive, and 6:00 a.m. on the following day."
Cynthia and Patricia Chambers were tried in the circuit court of Ogle County and convicted of violating the curfew. On appeal, as at trial, they challenge the constitutionality of the curfew statute. They argue that its provisions, by restricting their freedom of movement, deprive them of liberty without due process of law in contravention of the fourteenth amendment to the Constitution of the United States, and of article I, section 2, of the 1970 Illinois Constitution.
The constitutionality of curfew laws, when measured by the standard of due process, has been considered in a variety of situations. In the days immediately following the attack on Pearl Harbor, the military commander for the Western Defense Command (which comprised Alaska Territory, Washington, Oregon, California, and five other states) imposed by proclamation a curfew for all persons of Japanese ancestry. Under this proclamation, all such persons living in the Pacific coast states had to remain in their homes between 8 p.m. each night and 6 a.m. the next morning. In United States v. Gordon Kiyoshi Hirabayashi, 46 F. Supp. 657 (W.D. Wash. 1942), aff'd, 320 U.S. 81 (1943), the defendant, an American citizen of Japanese ancestry, was arrested in Seattle for violating the curfew. He attacked the curfew as being an encroachment by the Federal Government upon his liberty, without due process of law, in breach of the Fifth Amendment to the United States Constitution. In response to his argument, the Federal district court said: "[T]he decision of the case must be in the light of the unprecedented world conflict which so suddenly engulfed this nation, in the light of this being a declared Military Area * * *," and "There must, of course, be extraordinary reasons to justify curfew for, or removal, even from a military area, of American citizens residing therein. But with respect to those of Japanese ancestry in Military Area No. 1, certainly since Pearl Harbor most extraordinary reasons have obtained." The United States Supreme Court affirmed the decision with similar language.
More recent cases involving curfew laws stem from the efforts of urban officials to prevent or to end riots in their cities. (See, for example, United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) (curfew proclaimed by mayor of Asheville, North Carolina, after battles between police and high school students in September, 1969); Glover v. District of Columbia, 250 A.2d 556 (D.C. App. 1969) (curfew declared by Commissioner of Washington, D.C., during a riot in April, 1968; extended from night to night until the violence ceased); Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207 (1968) (curfew imposed by the mayor of Milwaukee in order to prevent a riot from occurring in the summer of 1967); Davis v. Justice Court, 10 Cal.App.3d 1002, 89 Cal.Rptr. 409 (1970) (curfew imposed on an area around a housing project in Pittsburg, California, during a riot there in 1968).) In all these cases, the validity of the curfew was directly in issue, and the curfew was upheld as a reasonable measure for restoring the public peace.
In both the military curfew and the riot curfew cases, three factors were present that strongly disposed the courts in favor of the curfew laws: An emergency existed, wherein the safety of the public was obviously and gravely threatened; the curfew, as an attempt to cope with the emergency, was limited to the place of the emergency; and the curfew was limited in time to the duration of the emergency. The importance of these factors was most clearly recognized in the Glover case at 250 A.2d 556, 560.
Another type of curfew has been employed in this country since the end of the 1800s. This is a curfew, typically established by city ordinance, which requires juveniles to be off the streets by a certain hour every night. This kind of curfew differs from military and riot curfews in that it is not instituted to deal with any pressing emergency, and that its duration is not limited. Traditionally, the incentive for passing juvenile curfew ordinances has been the hope of city officials that a curfew would keep children apart from evil influences found in a city at night and also help police to prevent juvenile delinquency by giving the police authority to command nighttime gatherings of youngsters to disperse. See Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime, 107 U. Pa. L. Rev. 66, 66-68 (1958).
The judicial response to juvenile curfew laws has been inconsistent. The first pronouncement on their validity was made in 1898, in Ex parte McCarver, 39 Tex.Crim. 448, 452, 46 S.W. 936, 937 (Tex.Crim. App. 1898), in which the ...