Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, August 25, 1995 TAG: 9508250068
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
Circuit Judge Diane Strickland stopped short of declaring the entire ordinance unconstitutional and dismissing the charge against Holdaway. But prosecutors said her ruling will nonetheless make it more difficult to prosecute parents who repeatedly allow their children to break curfew.
"This certainly impairs the commonwealth's ability to prove its case," Assistant Commonwealth's Attorney Gerald Teaster said. "It absolutely weakens the ordinance."
Teaster said he will have to review Holdaway's case in light of the ruling before deciding whether to proceed with the prosecution. Holdaway is the first parent to be charged under the ordinance, which was passed by City Council in 1992.
Holdaway appealed the case to Circuit Court, where her arguments hinged on two words in the ordinance - "insufficient control."
The disputed clause states that it is illegal for parents to permit, "or by insufficient control to allow," their children to violate the curfew. Offenders face up to a year in jail.
The attorney for Holdaway - who says she was asleep when her son slipped out of their Southwest Roanoke home late at night - called the judge's decision a victory for his client and all other parents in Roanoke.
"As it relates to parents, I think the ordinance is dead," Salem lawyer Jeff Dorsey said.
Strickland's ruling does not affect the hundreds of cases in which juveniles have been charged with violating the curfew, which requires minors 16 and younger to be off the streets by 11 p.m. on weeknights and midnight on weekends.
Holdaway, 36, was charged earlier this year under a provision of the ordinance that authorities said they use only as a last resort - holding parents criminally responsible for allowing their children to break curfew.
A judge in Juvenile and Domestic Relations Court convicted Holdaway in April and sentenced her to 10 days in jail. The American Civil Liberties Union decried that as the harshest punishment in Virginia for a curfew violation.
The ACLU said jailing parents such as Holdaway threatens to "exacerbate the problems in the family by splitting up mother and child."
Dorsey argued that the law's wording is so vague that it creates confusion among parents, and encourages selective enforcement by police.
Noting that his client was asleep when her son left the home, Dorsey asked: "What could Ms. Holdaway have done? Does she have to physically restrain her son, or have someone watch him when she is asleep?"
But Teaster stressed that Holdaway's crime was one of omission, not commission. He compared it to a case of child neglect where a parent leaves a 2-year-old home alone all day, and the child is injured. "The parent does not have to know that this is happening to be guilty of the crime of omission of improper supervision," Teaster said in written arguments - just as a parent does not have to know that a juvenile is breaking curfew to be guilty of insufficient control.
Teaster further argued that police can interpret the law to find evidence of insufficient control by parents. In Holdaway's case, for example, authorities had picked up her son at least 13 times for curfew violations before she was charged.
Given the problems with juvenile delinquency, Teaster said, "I think it speaks for itself that the government has a right and a responsibility to intervene in these cases."
Strickland, however, agreed with Dorsey that the language in the ordinance is so vague that parents could easily differ on its meaning and application. "That would be a matter of guesswork," she said.
To remedy the problem, Strickland deleted the offending words so that the ordinance says it is unlawful for any parent or guardian to knowingly permit a juvenile to break the curfew.
The new language, Strickland said, eliminates potential confusion about whether or not a parent has criminal intent in violating the ordinance by "insufficient control."
The judge said prosecutors are free to pursue the charge against Holdaway under the amended ordinance, but Dorsey said he does not expect that to happen.
Prosecutors have already agreed that Holdaway was asleep when her 16-year-old son crept out of the house early in the morning on Feb. 11 and took her car. He was arrested a short time later on a traffic violation, and police then charged Holdaway as well.
Given that scenario, Teaster acknowledged it would be difficult to obtain a conviction against Holdaway.
Holdaway had asked that the entire ordinance be declared unconstitutional, on the grounds that it violates the First Amendment rights of juveniles to travel and assemble. But because Holdaway herself is not governed by the curfew's hours, Strickland ruled that she did not have standing to challenge that part of the ordinance.
After Thursday's hearing, Holdaway said she is hopeful that the case against her soon will be dropped.
Although her son has had many problems with curfew violations and other criminal charges in the past, Holdaway said he is still living with her and "doing really good now."
by CNB