McDONALD, J., Concurring. I take the unusual step of writing a concurring opinion even though I am the author of the majority opinion. I believe the majority opinion accurately summarizes the law and properly applies that law to the narrow issues resolved by the majority opinion, and agree the true finding that A.G. violated San Diego Municipal Code section 58.0102 must be reversed. However, I believe there is an additional and significant basis for reversing the true finding that is not addressed by the majority opinion: whether the San Diego curfew ordinance is invalid because it violates the equal protection clauses of the federal and state Constitutions. I write separately to explain my view that the San Diego curfew ordinance is invalid under the equal protection clauses of the federal and state Constitutions because it burdens a minor’s First Amendment rights to speech and association without being narrowly tailored to serve the state interest.
A. A. G. ’s Facial Challenge
A.G. asserts the San Diego curfew ordinance is invalid under the rationale employed by Nunez by Nunez v. City of San Diego (9th Cir. 1997) 114 F.3d [146993]5 (Nunez) in which the court invalidated San Diego’s previous curfew law; she argues the current iteration of the San Diego curfew ordinance continues to offend the equal protection clause. The People counter that the San Diego curfew ordinance is valid, under the rationale of Qutb v. Strauss (5th Cir. 1993) 11 F.3d 488 (Qutb), because the current version of the San Diego curfew ordinance contains exceptions that adequately safeguard protected conduct.
The Appropriate Standard of Review
The equal protection clause “is essentially a direction that all persons similarly situated should be treated alike.” (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439 [87 L.Ed.2d 313, 105 S.Ct. 3249].) Only if the challenged government action classifies or distinguishes between two or more relevant groups must a court conduct an equal protection inquiry. (Brennan v. Stewart (5th Cir. 1988) 834 F.2d 1248, 1257.) Here, the San Diego curfew ordinance indisputably distinguishes between classes of individuals on the basis of age, and because the San Diego curfew ordinance distinguishes between two groups, I analyze the San Diego curfew ordinance under the equal protection clause.
Curfew ordinances of varying configurations have a long history, both in California (see, e.g., Alves v. Justice Court (1957) 148 Cal.App.2d 419 [306 P.2d 601]) and in other jurisdictions around the country (see Note, Juvenile Curfews and the Major Confusion over Minor Rights (2005) 118 Harv. L.Rev. 2400, 2402), and numerous courts in both the state and federal systems have addressed constitutional issues similar to the issues implicated by the San Diego curfew ordinance. (See, e.g., State v. J.R (Fla. 2004) 907 So.2d 1101; Treacy v. Municipality of Anchorage (Alaska 2004) 91 P.3d 252; Ramos v. Town of Vernon (2d Cir. 2003) 353 F.3d 171 (Ramos); Hutchins v. District of Columbia (D.C. Cir. 1999) 338 U.S. App.D.C. 11 [188 F.3d 531] (Hutchins); Nunez, supra, 114 F.3d 935; Qutb, supra, 11 F.3d 488.) The courts that have analyzed the constitutionality of the curfew ordinance before them have disagreed over the appropriate level of scrutiny to apply: some courts appear to have applied the deferential “rational basis” level of scrutiny (see, e.g., Sale ex rel. Sale v. Goldman (2000) 208 W.Va. 186 [539 S.E.2d 446,456]; People v. Walton (1945) 70 Cal.App.2d Supp. 862, 866-867 [161 P.2d 498]); others have applied the so-called “intermediate scrutiny” approach (see, e.g., Hodgkins ex rel. Hodgkins v. Peterson (7th Cir. 2004) 355 F.3d 1048, 1057 (Hodgkins); Ramos, supra, 353 F.3d at p. 181; Hutchins, supra, 188 F.3d at p. 541); and a third group of courts have applied “strict scrutiny” to the ordinances under review. (See, e.g., Nunez, supra, 114 F.3d at p. 946; Qutb, supra, 11 F.3d at p. 492.)
[1470]I initially determine the appropriate level of scrutiny for a court to employ in assessing A.G.’s equal protection challenge to the validity of the San Diego curfew ordinance. A.G. asserts strict scrutiny is the applicable standard to test whether the San Diego curfew ordinance violates her right to equal protection under the federal and state Constitutions, while the People contend we must reject A.G.’s equal protection challenge if the classifications established by the San Diego curfew ordinance satisfy the rational basis standard of review.
Generally, legislation is presumed to pass constitutional muster and will be sustained under the equal protection clause if the classification drawn by the statute or ordinance is rationally related to a legitimate state interest. (Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at p. 440.) However, when the classification either disadvantages a “suspect class” or impinges on a “fundamental right,” the ordinance is subject to strict scrutiny review. (Plyler v. Doe (1982) 457 U.S. 202, 216-217 [72 L.Ed.2d 786, 102 S.Ct. 2382].) Because age is not a suspect classification, statutory classifications based on age are ordinarily subject to rational basis review. (Gregory v. Ashcroft (1991) 501 U.S. 452, 470 [115 L.Ed.2d 410, 111 S.Ct. 2395].)
A.G. argues, however, that strict scrutiny should apply because the ordinance infringes on fundamental rights protected by the Constitution: the rights of free movement, travel, and free speech. Certainly, there is substantial authority for the proposition that laws burdening the “constitutional right to travel, or, more precisely, the right of free interstate migration” will be subjected to strict scrutiny. (Attorney General of N. Y. v. Soto-Lopez (1986) 476 U.S. 898, 902 [90 L.Ed.2d 899, 106 S.Ct. 2317], italics added.) Although the United States Supreme Court has not explicitly held that intrastate travel is similarly a fundamental right protected by the federal constitution (see Schor v. City of Chicago (7th Cir. 2009) 576 F.3d 775, 780; see also Hutchins, supra, 188 F.3d at p. 537 [right to travel under federal Constitution may be limited to narrower right to “travel across borders, not mere ‘locomotion’ ”]), some California cases have characterized the right to intrastate travel as “a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.” (In re White (1979) 97 Cal.App.3d 141, 148 [158 Cal.Rptr. 562]; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100-1101 [40 Cal.Rptr.2d 402, 892 P.2d 1145].)
Although cases such as Tobe and White appear to support the conclusion that California recognizes a right to intrastate travel for adults that would be fundamental for equal protection purposes, it is unnecessary in this case definitively to delineate the extent to which an adult’s right to intrastate travel [1471]is a “fundamental right.” Even assuming an ordinance directly restricting movement of an adult would impinge on that adult’s fundamental rights and thereby subject any classification to strict scrutiny (cf. City of Chicago v. Morales (1999) 527 U.S. 41, 54 [144 L.Ed.2d 67, 119 S.Ct. 1849]), the critical question is whether a minor has a corresponding right that would require the same restrictive level of scrutiny. In many situations, minors do not possess the same constitutional rights possessed by adults; for example, minors are afforded less freedom of choice than adults with respect to numerous rights, including marriage, labor, voting, or access to First Amendment-protected expression of the “adult entertainment” variety, all of which are (or likely would be deemed) fundamental when exercised by an adult. The inherent differences between minors and adults—the minor’s immaturity, vulnerability, and need for parental guidance—have been recognized by the United States Supreme Court as the basis to justify treating minors differently from adults under the federal Constitution. (See Bellotti v. Baird (1979) 443 U.S. 622, 634-635 [61 L.Ed.2d 797, 99 S.Ct. 3035].) “So ‘although children generally are protected by the same constitutional guarantees ... as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability’ by exercising broader authority over their activities.” (Hutchins, supra, 188 F.3d at p. 541, quoting Bellotti, supra, 443 U.S. at p. 635.)
Bellotti’s rationale is persuasive to the extent a curfew ordinance constrains a minor from freely engaging in conduct in which an adult counterpart would be free to engage. For example, there is little doubt that (even absent a curfew) police could take into custody a vulnerable eight-year-old child found alone at night on a city street for the child’s own safety and well-being, while a similar treatment of an adult would be impermissible. Even assuming police may not do the same to a more mature minor solely under the parens patriae function, an unemancipated minor still does not have the right to freely “come and go at will.” (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 654 [132 L.Ed.2d 564, 115 S.Ct. 2386].) Indeed, “juveniles, unlike adults, are always in some form of custody” (Schall v. Martin (1984) 467 U.S. 253, 265 [81 L.Ed.2d 207, 104 S.Ct. 2403]), and they lack an unfettered right to travel because their right to free movement is limited at least by their parents’ authority to consent to or prohibit movement (see Ramos, supra, 353 F.3d at pp. 182-183). As one court observed when it elected to apply intermediate scrutiny to a curfew ordinance despite its impacts on the juvenile’s right of movement, “it would be inconsistent to find a fundamental right here, when the [Supreme] Court has concluded that the state may intrude upon the ‘freedom’ of juveniles in a variety of similar circumstances without implicating fundamental rights . . . .” (Hutchins, supra, 188 F.3d at p. 539.)
[1472]New York’s highest court recently observed, “[r]ather than categorically applying strict scrutiny to a curfew which implicates a minor’s right to free movement simply because the same right, if possessed by an adult, would be fundamental, courts have found that intermediate scrutiny is better suited to address the complexities of curfew ordinances . . . .” (Anonymous v. City of Rochester (2009) 13 N.Y.3d 35, 46-47 [886 N.Y.S.2d 648, 915 N.E.2d 593] (Anonymous).) Selection of this intermediate scrutiny standard acknowledges the unquestioned precepts that minors do have rights protected by the Constitution but are concomitantly subject to greater regulation and control by the state than are adults (Ramos, supra, 353 F.3d at pp. 180-181), yet nevertheless provides a sufficiently probing scrutiny that reconciles the competing considerations of rigorously protecting constitutional rights while retaining adequate flexibility to accommodate legislation carefully crafted to address the particularized situation of minors. (See Hutchins, supra, 188 F.3d at p. 541.) As summarized by the Fourth Circuit when it selected intermediate scrutiny to evaluate an equal protection challenge to a curfew ordinance; “In light of the case law, two things seem clear. First, children do possess at least qualified rights, so an ordinance which restricts their liberty to the extent that this one does should be subject to more than rational basis review. Second, because children do not possess the same rights as adults, the ordinance should be subject to less than the strictest level of scrutiny. See Carey v. Population Servs. Int’l, 431 U.S. 678, 693, n. 15 [52 L.Ed.2d 675, 97 S.Ct 2010] (1977) (plurality opinion) (when minors are involved the level of scrutiny ‘is apparently less rigorous than the “compelling state interest” test applied to restrictions on the privacy rights of adults’); [citation]. We thus believe intermediate scrutiny to be the most appropriate level of review and must determine whether the ordinance is ‘substantially related’ to ‘important’ governmental interests.” (Schleifer by Schleifer v. City of Charlottesville (4th Cir. 1998) 159 F.3d 843, 847 (Schleifer).)
I agree with the line of authority represented by Schleifer, and conclude the constitutional validity of the San Diego curfew ordinance under an equal protection challenge should be tested under the intermediate scrutiny standard.
Application of the Test
The intermediate scrutiny test, as first articulated in Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980) 447 U.S. 557 [65 L.Ed.2d 341, 100 S.Ct. 2343], examines whether the asserted governmental interest promoted by the law is substantial, whether the law directly advances the governmental interest asserted, and whether the law is not more extensive than is necessary to serve that interest. (Id. at p. 566.) “The court has clarified that the last part of the test—determining whether the regulation is not more extensive than [1473]‘necessary’—does not require the government to adopt the least restrictive means, but instead requires only a ‘reasonable fit’ between the government’s purpose and the means chosen to achieve it. [Citation.]” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 952 [119 Cal.Rptr.2d 296, 45 P.3d 243].)
The parties do not dispute that the underlying purposes served by the San Diego curfew ordinance include reducing juvenile crime and preventing juveniles from victimization. The courts have generally recognized those governmental interests served by curfew ordinances are at least substantial within the meaning of the intermediate scrutiny test (see, e.g., Hutchins, supra, 188 F.3d at p. 542 [“there can be no serious dispute that protecting the welfare of minors by reducing juvenile crime and victimization is an important government interest”]) and, indeed, have even been found to be sufficiently compelling to satisfy the most rigorous of the equal protection tests. (See, e.g., Nunez, supra, 114 F.3d at p. 947 [concluding city’s interest in reducing juvenile crime and juvenile victimization are compelling interests]; Qutb, supra, 11 F.3d at p. 492.)
It is the second and third interrelated prongs of the inquiry—whether the particularized provisions of the curfew ordinance directly and materially advance those governmental interests (Schleifer, supra, 159 F.3d at p. 849) and whether those provisions are substantially broader than necessary to advance those interests (see, e.g., Ward v. Rock Against Racism (1989) 491 U.S. 781, 800 [105 L.Ed.2d 661, 109 S.Ct. 2746])—that have provided the primary grist for the judicial mill. For those courts that have applied intermediate scrutiny to assess curfew ordinances, some have concluded the curfew ordinance satisfies the second prong because they concluded the statute directly and materially advanced the governmental interests of protecting juveniles’ safety and preventing juvenile crime (see, e.g., Schleifer, supra, 159 F.3d at pp. 849-851; Hutchins, supra, 188 F.3d at pp. 542-545), while other courts appear to have reached the contrary conclusion.1 (See, e.g., Ramos, supra, 353 F.3d at pp. 183-187; Anonymous, supra, 13 N.Y.3d at pp. 48-51 [concluding there was no substantial nexus between evils to be remedied and nocturnal restrictions on minors].)
[1474]In evaluating whether the final two interrelated prongs of the intermediate scrutiny analysis—whether the fit between the government’s interests and the means chosen to achieve those interests is direct and not substantially more burdensome than necessary to achieve those goals—the courts have generally recognized the appropriate focus should be placed on the exemptions to determine whether the ban on nighttime activities is substantially more burdensome than necessary to remedy the evils at which the ban was directed. (See, e.g., Qutb, supra, 11 F.3d at pp. 493-494; State v. J.P., supra, 907 So.2d at p. 1117 [“[t]he scope of the exceptions to the curfew is of more significance in assessing whether an ordinance is narrowly tailored”]; Schleifer, supra, 159 F.3d at pp. 851-852 [upholding curfew because its “narrow scope and comprehensive list of exceptions . . . represents the least restrictive means to advance Charlottesville’s compelling interests”].) The courts that have invalidated curfew ordinances, under either the intermediate scrutiny analysis or strict scrutiny analysis, have generally done so because they concluded the exemptions/defenses within the ordinances did not provide adequate breathing room to accommodate the minor’s ability either to exercise constitutionally protected fundamental rights (such as 1st Amend, activities or interstate travel) or to engage in other activities that carried none of the dangers the curfew law was designed to ameliorate.2 (See, e.g., Hodgkins, supra, 355 F.3d at pp. 1060-1065; Johnson v. City of Opelousas (5th Cir. 1981) 658 F.2d 1065, 1072-1074 [absence of exemptions for benign activities fatal to curfew ordinance].) Conversely, those courts that have upheld curfew ordinances, under either level of scrutiny, have reasoned the exemptions or defenses provided by the particular ordinance under consideration significantly narrowed the curfew’s operative effect to those nocturnal activities that involved conduct both unprotected and likely to generate the dangers at which the statute was targeted. (See, e.g., Hutchins, supra, 188 F.3d at p. 545 [statute upheld applying intermediate scrutiny based in part on recognition that “the eight defenses to the curfew strengthen the [1475]relationship between the curfew and its goal of reducing juvenile crime and victimization by narrowing the scope of the curfew . . . [by] ensuring] that the ordinance does not sweep all of a minor’s activities into its ambit but instead focuses on those nocturnal activities most likely to result in crime or victimization” (fn. omitted)]; Quib, supra, 11 F.3d at p. 494 [“[b]y including the defenses to a violation of the ordinance, the city has enacted a narrowly drawn ordinance that allows the city to meet its stated goals while respecting the rights of the affected minors” (fn. omitted)]; Schleifer, supra, 159 F.3d at pp. 851-852; Treacy v. Municipality of Anchorage, supra, 91 P.3d at pp. 267-268 [exemptions for minors engaged in legitimate activities, including exemption for traveling to and from such activities, sufficiently tailored to achieve objectives of the curfew].)
It is the narrowing impact of the exemptions provided by the San Diego curfew ordinance that is pivotal to my conclusion. Under this curfew ordinance, a minor is not subject to misdemeanor liability if in public while accompanied by the minor’s parent, guardian, or another responsible adult; in a motor vehicle involved in interstate travel; is involved in an emergency undertaking; or is on the sidewalk abutting the minor’s residence. (San Diego Ord. No. 0-18416, § 2; San Diego Mun. Code, § 58.0102, subd. (c)(1), (3), (5) & (6).) Additionally, as long as the minor does not engage in any detour or stop, the minor is not subject to misdemeanor liability if on an errand at the direction of the minor’s parent, guardian, or other responsible adult, or is engaged in (or going to or returning home from) an employment activity, or is engaged in (or going to or returning home from) an official school, religious, or other recreational activity supervised by adults and sponsored by the City of San Diego, a civic organization, or another similar entity that takes responsibility for the minor. (San Diego Mun. Code, § 58.0102, subd. (c)(2), (4) & (7).) These exemptions largely track the exemptions that persuaded other courts to hold the ordinance sufficiently narrowly tailored to avoid being substantially more burdensome than necessary to achieving the significant government interests underlying the ordinance.3
However, because the San Diego curfew ordinance does not exempt certain other types of conduct, I conclude the particularized provisions of the curfew ordinance impose constraints substantially broader than necessary to the direct and material advancement of those governmental interests. My principal concern is that, although the ordinance nominally protects the minor’s [1476]ability to “exercise[e] First Amendment rights protected by the United States Constitution” (San Diego Mun. Code, § 58.0102, subd. (c)(8)), the protection is a hollow one because it applies only when the minor is engaged in those activities after 10:00 p.m. with (or even without) parental permission but it does not provide for the minor to travel to or from those activities except when accompanied by an adult.4 Additionally, the curfew ordinance contains no “going to or coming home from” exemption that would permit a minor safely to pass from one exempt location to another, which circumscribes a minor’s ability to attend activities like an evening study group hosted in a fellow student’s home (or even a social occasion at that home) and limits the minor to attending those events only when the minor is certain the work (or festivities) will end with enough time to allow the minor’s pre-curfew return home. Thus, the ordinance sweeps within its ambit entirely benign (or even laudable) conduct, and the People offer no articulation of how circumscribing such benign conduct directly and materially furthers the underlying governmental interests of preventing crime and victimization.
At least three other courts, applying the same intermediate scrutiny to curfew ordinances that I employ to the San Diego curfew ordinance, have concluded the ordinances were invalid. (See Hodgkins, supra, 355 F.3d 1048; Ramos, supra, 353 F.3d 171; Anonymous, supra, 13 N.Y.3d 35.) Although the ordinances considered by those courts contained slight variations, and the rationales of those courts for invalidating the ordinances contain elements not germane here, they have expressed at least some level of concern that the ordinance either imposed restrictions that left inadequate space for the exercise of First Amendment rights (see Hodgkins, supra, 355 F.3d at p. 1064 [only way for minor to avoid risk of arrest under curfew law while exercising 1st Amend, rights was to find adult to accompany him and “[t]o condition the exercise of First Amendment rights on the willingness of an adult to chaperone is to curtail them”]),5 or that the restrictions imposed on minors were not limited to those types of conduct that had a reasonably tight nexus to the underlying goals of the ordinance. (See, e.g., Ramos, supra, 353 F.3d at pp. 183-187; Anonymous, supra, 13 N.Y.3d at pp. 48-51.) The San Diego [1477]curfew ordinance suffers from both defects: it imposes de facto restrictions on or conditions to the exercise of First Amendment rights, and it restricts the minor’s ability to engage in activities after 10:00 p.m. in otherwise safe (and potentially supervised) environments without any suggestion that going directly to (or returning directly home from) those locales implicates the juvenile crime and juvenile victimization goals of the ordinance.
I conclude that, although a more narrowly tailored curfew ordinance is within the legislative prerogative, the present ordinance “sweeps too broadly and includes within its ambit” “otherwise innocent and legal conduct by minors even where they have the permission of their parents.” (State v. J.P., supra, 907 So.2d at pp. 1117, 1118.) I conclude the San Diego curfew ordinance is unconstitutional, and would also vacate the true finding on this separate ground.
The courts that have applied strict scrutiny to assess curfew ordinances likewise appear to be split over whether the curfew ordinance directly advanced the governmental interests of protecting juveniles’ safety and preventing juvenile crime. (Compare Nunez, supra, 114 F.3d at p. 948 [“[w]e will not dismiss the City’s legislative conclusion that the curfew will have a salutary effect on juvenile crime and juvenile victimization”] and Qutb, supra, 11 F.3d at p. 493 [concluding sufficient nexus existed between the stated interests and the classifications created by the ordinance] with Commonwealth v. Weston W. (2009) 455 Mass. 24 [913 N.E.2d 832, 845] [concluding imposition of criminal liability for curfew violation is an “extraordinary and unnecessary response” and no showing the use of criminal rather than civil penalties provided any increased benefits toward reducing juvenile crime or protecting juveniles against victimization] and State v. J.P., supra, 907 So.2d at pp. 1118-1119.)
For those courts that have applied strict scrutiny to curfew ordinances, similar considerations have convinced many of those courts that the ordinances were invalid. (See State v. J.P., supra, 907 So.2d at pp. 1117-1119 [failure to have statutory exceptions for juveniles engaged in “ ‘legal, wholesome activities who have the permission of their parents’ ” was overly broad]; Nunez, supra, 114 F.3d at pp. 948-951 [failure to exempt minors engaged in legitimate activities with or without parental permission or to exempt minors who seek to exercise 1st Amend, rights during curfew hours was overly broad].) However, other courts employing strict scrutiny have examined the exemptions/defenses under the ordinance and concluded that “[b]y including the defenses to a violation of the ordinance, the city has enacted a narrowly drawn ordinance that allows the city to meet its stated goals while respecting the rights of the affected minors.” (Qutb, supra, 11 F.3d at p. 494, fn. omitted; accord, Treacy v. Municipality of Anchorage, supra, 91 P.3d at pp. 267-268 [curfew exemptions for minors engaged in legitimate activities, including exemption for traveling to and from such activities, found to be least restrictive means to achieve objectives of the curfew].)
See, e.g., Hutchins, supra, 188 F.3d at pages 534—535 (substantively similar exemptions); Qutb, supra, 11 F.3d at page 498 (substantively similar exemptions).
The requirement of adult supervision for going to and from First Amendment activities may impermissibly confer on a parent a de facto veto right over after-hours exercise of the minor’s First Amendment rights. (See Whittaker, Gay-Straight Alliances and Free Speech: Are Parental Consent Laws Constitutional? (2009) 24 Berkeley J. Gender L. & Just. 48, 60 [“[w]hat remains unclear is whether the State may use parental authority to indirectly limit constitutional rights that the State may not limit directly”].)
On rehearing, the People suggest we should follow the dissenting opinion in State v. J.P., supra, 907 So.2d 1101, 1120 (dis. opn. of Cantero, J.), which argued in favor of upholding the curfew ordinance under consideration there, as better reasoned. However, the dissenting opinion in State v. J.P. did not examine an ordinance containing a de facto restriction on a minor’s First Amendment rights, because the ordinance there expressly exempted a juvenile who was attending “or traveling to or from” an activity that involves the exercise of rights protected under the First Amendment. (State v. J.P., supra, 907 So.2d at p. 1106.)