*1 BROWN, Joyce Appellant, v. COLUMBIA, Appellee. OF
DISTRICT
No. 96-SP-1369. of Appeals.
District of Columbia Court
Argued Sept. April
Decided
I. Joyce charged Brown was on December 1995, with violating twelve counts of the Compulsory School Attendance Act. Ms. Jackson, daughter, Brown’s Lakia had been for year absent the entire 1994r-95 school day, with exception of one and for all but days forty-two nine or ten out of the days 1, 1995, before December in the 1995-96 trial, year. school Prior to Ms. filed Brown parte request authorizing ex for an order examination of both Lakia and at government’s expense Ms. Brown investigate potential order defense. motion cited a number of traumatic family events that had befallen the Brown from 1993 to 1995. These events included separation Brown of Ms. from her hus- band, stroke, suffering Ms. Brown’s daughters fact Brown that Ms. and her two neighborhood, to a preg- moved new and the Goldblatt, DC, Washington, Steven H. ap- nancy, fourteen, at age of the older of the court, pointed by Mary with whom L. daughters. The motion further set Clark, Supervising Attorney and Lance R. forth spoken that defense counsel had awith Bremer, Counsel, appellant. Student for psychologist to the effect of determine these Bixler, Sidney R. Corporation Assistant Lakia, on younger events two Counsel, Robinson, with whom Jo Prin- Anne daughters, go had who refused to to school cipal Deputy Counsel, Corporation during period. Family and Rob- A that time Division Rigsby, Counsel, R. Deputy Corporation judge ert request, denied this and also denied Groce, appellant’s Rosalyn Director, and filed a ap- Calbert motion reconsideration short time pellee. later. As the trial was about to
begin,
judge
the trial
declined a
judge’s rulings
reconsider the motions
but
WAGNER,
Judge,
Before
Chief
any
agreed
indicated
he
event
SCHWELB,
BELSON,
Judge,
Associate
them.
Judge.
Senior
trial,
Before
Ms.
a motion
Brown filed
charges against
dismiss
her on
basis
BELSON,
Judge:
Senior
compulsory
that the
attendance
stat-
Joyce
convicted,
Brown was
after a bench
ute
its face and as
unconstitutional
trial,
violating
Compul-
applied
of nine
counts
trial
case. The
court denied
sory
Act,
prior
trial,
School
motion
Attendance
31-
entered writ-
ten
explaining
ruling.
order after trial
its
appeal,
argues
On
Ms. Brown
Brown,
Daily
See District
Columbia
that the statute is unconstitutional under the
Rptr.
(D.C.Super.Ct. Aug.
Wash. L.
doctrine,
vagueness
void for
and that
1996).
trial
by
court abused its
refusing
discretion
to authorize
engage
defense
counsel
trial,
government
At
called as wit-
psychologist
an expert
child
persons employed
nesses
the District of
reject
government expense.
appellant’s
We
system
gave
who
Columbia school
detailed
argument,
constitutional
but remand for en-
testimony concerning
Lakia’s absences
try
appellant’s
of an
authorizing
order
coun-
persuade appellant
their
efforts to
have
sel to obtain the
psycholo-
services of a child
Lakia attend school
gist.
testified that she
walked
(citations omitted).
at is
When the statute
only
break and
every day,
to have the child
implicate First Amendment con
sue does not
away.
judge
run
The trial
did not credit
cerns,
inquiry is whether
de
proper
testimony.
was evidence that
There
reasonably
question
condition,
“could
fendant
suffering
Brown was
from a heart
contemplated conduct
that his
understand
court found
and had suffered a stroke. The
*3
States, 525
proscribed.”
v. United
German
child’s older sister and father
that when the
(D.C.1987)
596,
(quoting United
A.2d
605
school,
stayed
the child
escorted Lakia
29,
Prod.,
Dairy
372 U.S.
States v. National
Further,
began
Lakia
attended school.
when
(1963))
594,
32-33,
look
language
at the
of the statute itself to
Brown,
requirements
to Ms.
of the stat
meaning.
see
it admits to no more than one
*4
child,
place
ute were clear: to
of whom
See,
Stores,
e.g., Peoples Drug
Inc. v. District
custody
she had
and over whom she had
Columbia,
751,
(D.C.1983)
470 A.2d
753
of
control,
regular
in
(en banc)
attendance in a school.
(citations omitted); see also In re
acceptable
failing
The
to
excuses for
do so
R.F.H.,
(con
844,
(D.C.1976)
354 A.2d
846-47
§
are listed in 5 DCMR 2101.3. Ms. Brown
struing the
“tampering”
word
to include
place
did
in regular
not
attendance
improper purpose).
some
appropri
Where
proffered
in a school and
none of the enu
ate,
sources,
courts
look
must
to other
such
failing
merated valid excuses for
to do so.
history and,
course, previous
of
court deci
provided ample warning
The statute
that this
sions, see, e.g.,
Co.
Standard Oil
v. United
liability
failure
result in
could
criminal
States,
1, 52, 69-70,
502,
221 U.S.
31 S.Ct.
55
part of Ms. Brown.2
(1911) (holding
L.Ed. 619
Sherman Anti-trust
Act was not
general
unconstitutional as
stat
Appellant cites to several cases in which
utory provisions
light
must be construed in
of
compulsory school attendance statutes were
precedents);
reason and common law
United
unconstitutionally vague.
held to be
Those
Co.,
States v. American
221
Tobacco
U.S.
however,
cases,
part
involved for the most
106, 179-80,
632,
(1911)
31
55
S.Ct.
L.Ed. 663
parents
taught
who
their
children
home
(construing
light
Sherman
in
Anti-trust Act
challenged
precision
language
and who
of
precedents
prohibit
all
which
contracts
permitting
the statute
children to be edu-
amount to unreasonable or undue restraint of
See,
private
e.g.,
cated
State v.
schools.
trade),
proper
to determine the
construction Newstrom,
(Minn.1985);
Here, clearly argument, persuaded the words statute are that we the statute parent guardian state that impermissible legisla or of a minor delegation attendance,” place regular “shall minor in authority. body tive A legislative properly 31-402(a) § (1995), delegates D.C.Code authority when it establishes “an minor is absent from intelligible principle person school without an ex which or conform_” cuse, parent guardian or guilty body “shall be ... is directed to Mis 31-403(d) States, 372, 109 § of a 361, misdemeanor.” D.C.Code tretta v. United 488 U.S. activities, out, holidays, malfunctioning 31-403(d) equipment, pointed § 2. As we have D.C.Code conditions, unsanitary that, unsafe or or other con- provides "parent, guardian, per- or other dition(s) requiring closing suspension custody son who of a has or control minor cov- classes; and 31-402(a) § ered under who is absent from (i) absence(s) approved Other in advance guilty school without valid excuse shall be of a principal upon parent, written of a misdemeanor.” guardian, or adult student.
869
(1989)
a valid excuse.”
647,
“without
(quoting
forbids absence
L.Ed.2d 714
102
S.Ct.
States,
31-403(d).
applied
to the
Hampton, Jr. &
v. United
As
Co.
J.W.
348,
408,
394,
L.Ed.
case,
72
624
U.S.
48 S.Ct.
v.
Estates
The
see
facts of this
Hoffman
(1928)).
only “establish
legislature
need
Estates, Inc., 455 U.S.
Flipside, Hoffman
guidelines
govern
law enforce-
minimal
1186, 71
489, 495,
L.Ed.2d
S.Ct.
352,
Lawson, 461 U.S.
Kolender v.
ment.”
sufficiently
(1982),4
clear to a
language is
(1983)
357,
1855,
the scheme here is considerable.
gave
of the District
ute Woods
Council
error relates to
Appellant’s next claim of
authority
regulate busi-
of
broad
to
Columbia
request for authorization to
of her
the denial
promul-
professional
ness and
licenses and
expert psychologist
of an
secure the services
implementing regulations.
Id.
373.
gate
at
appellant
the child and
herself
to examine
1972,
regulations which
In
the Council issued
phobia.5 Appel-
testify regarding school
and
“satisfactory
as a
[the board]”
used
criteri-
that
was entitled to
lant contends
she
on for administrative action.3 This court
expense
expert
government
at
of an
services
“purely subjective,” allowing
found that
be
and
United
under both
D.C.Code
basis.” Id. at 374.
decisions on an “ad hoc
By
involved here itself States Constitution.6
contrast
statute
standard,
virtually
the sense that
Congress
give
but rather in
not
the Council
mative
3.
did
specified at all.’
authority
is
plenary
legislate
field
no standard of conduct
in this
until
Cincinnati,
611, 614,
93-198,
City
402 U.S.
Coates v.
87
Rule Act. Pub.L.
stat. 774
Home
1686,
(1971).
(1973).
a
should not withhold its when un- derlying reasonably suggest facts that fur- As correctly applied the trial court exploration prove may ther beneficial to case, “reasonable efforts” standard to this development the accused in the of a de- the issue of whether the child suffered from *6 charge.... making fense to the In this phobia school was relevant to defense.8 the determination, the trial court should tend sought opportunity the to have rely judgment to the of defense counsel expert psychological trier fact consider primary duty providing who has the an testimony concerning strong Lakia’s and ab adequate defense. school, attending along normal resistance to (citations omitted). apparently fragile Id. Ms. Brown’s at 1368 health circumstances, and other relevant in deter Here, appellant’s original pretrial motion mining whether Ms. Brown made “reason stated that “a number traumatic events able efforts” to secure Lakia’s attendance at occurred in Ms. family Brown’s between 1993 persuaded school. We are that under all the 1995,” that, according and and to a child attorney circumstances a reasonable would “all of psychologist, certainly these events pursued involving pho have a defense school daunting impact upon had a and debilitating Accordingly, bia. the initial denial of the youngest daughter, Ms. Brown’s Lakia Jack- request for court authorization to secure the son.” Defense counsel noted that the com- psychologist services of a was error. pulsory only school penalizes attendance law parent a keep who has failed to a child It remains for this court to decide whether excuse,” school “without valid and stated that denial motions for authorization to at may engage trial “Ms. Brown claim that she a psychologist had the services of a consti- forcing daughter error, valid excuse for not tuted reversible instead was harm- school, i.e., physically so, attend that she doing guided by was less. In our we are "[ijllness Appellant’s pretrial 7. motions and her brief on not constitute an of the student” anas appeal "appointment” expert refer court of an excuse for absence from school. 5 D.C. Mun. psychologist. Under the statute one does Indeed, Regs. § 2101.3. one medical reference "appoint” expert, that the court an proper source indicates that the treatment for but asks the court authorize counsel to obtain younger phobia child is an "immedi- expert government expense. of an at Diagno- ate return to school." Merck Manual of Therapy,supra &sis note at 2099. appellant 8. Counsel conceded at oral ar- gument phobia probably that school itself would is, Laida was phobia, it whether Gaither, what supra, 391 A.2d at decision it, an assessing whether was some suffering n. 8. In the context from or whether there warranted, this court insanity defense phobia, any school relationship between purpose of the ease for the sole remanded Brown, ability through “reason- of Ms. psychiatrist. Id. at 1369. appointing efforts,” regu- daughter’s secure able directly to the psychiatrist report was to to the suc- at school. Crucial lar attendance attorney there was a on whether defense effort to make Ms. Brown’s or failure of cess insanity Id. an defense. pursuing basis for made “reasonable showing that she had if, upon the This stated that based court daughter’s attendance secure her efforts” to attorney concluded that report, the defense of her assessment was the court’s at school warranted, insanity defense was not circumstances, credibility. Under psychiatrist in the earlier appoint failure showing adequate of its defense made proceeding viewed as a stage of the would be testimony expert need at n. This court error. Id. harmless explain intensity potentially could which government proven had stated that as the school, attending of the child’s resistance beyond a the defen- reasonable doubt that to the of the child’s reaction and the nature charged, the had committed the offense dant her mother. prospect separation from sanity of only remaining issue was that of the some as- testimony could corroborate Such Therefore, this the defendant. Id. testimony. If de- pects appellant’s there only concluded that the issue could court velops that Laida suffered evidence credible proceeding on remand be raised in the would phobia, that that condition from school sanity. Id. be the defendant’s kind of con- in Laida the could have caused ease, however, is more issue Brown, trial court duct described complex. This is not an instance how Lakia’s resistance have to determine will insanity will serve as defendant health, school, attending Ms. Brown’s charged despite the crime the fact defense to daughter relate to interaction with her prosecution proven has all of the Brown made “rea- of whether Ms. Rather, the issue necessary elements of the offense. daughter to it that her possibly suffering phobia efforts” see Lakia’s from school sonable weaves into the issue of whether Ms. attended school compel engaged in “reasonable efforts” to *7 daughter attend school.
her light power of this court to In of the had, as “require proceedings [are] to be such in this connection that We observe circumstances,” § 17- just in strong prosecution appears made a to have (1995), remand this ease with instruc judge we against Ms. Brown. The trial case testimony at- her that she court authorize counsel characterized that the trial tions daughter every tempted walk to school her of a child the services Brown to secure Ms. day that as credible. He found as a fact not Ms. examine both Laida and psychologist to by accompanied her older the child was when If, psychologist’s of the a result Brown. her school. father she attended sister Brown, de Laida and Ms. examination was judge The trial also found that child position present mate is in a fense counsel grand- of trial her living at the time tending a defense to to establish rial evidence mother, attending school and was should, upon re charges, the trial court Further, Brown record that Ms. reflects record, defendant, reopen the quest attempted daughter to a never to take her proceedings as are further and conduct such refusing psychologist daughter her was while the examination If the result of warranted. Obviously, all of this tends to attend school. posi in such a put not counsel does defense made that Ms. Brown to refute defense tion, of authorization court’s denial the trial efforts” to secure the attendance “reasonable psychologist will of a engage the services daughter at school. of her error. shown to be harmless have been however, defense, posi- not in a any Remanded. evidence place before the court tion to SCHWELB, Judge, concurring: my however, Associate opinion, harmless. it is a very Arguably, properly close call. we could judgment join I concur in the record, present conclude on the and without opinion of I the court. add a few observa- remand, that Ms. Brown was not substan- regarding tions whether a remand is neces- tially prejudiced by the trial court’s refusal to sary. approve her for the services of sought an ex- expert. pert support proffered along defense following lines:
(1) physically that she was get unable to school; (2) daughter
her to attend
sending her child to school would have
caused the child more harm (3) good;
than sending and/or
child to school would have been aca- demically useless because when NORTH LINCOLN PARK NEIGHBOR- go would participate she would refuse HOOD ASSOCIATION and Stewart class. Harris, Petitioners, (Numerals added.) testified, however, attempted that she to walk Laida to every day rejected account —an DISTRICT OF COLUMBIA ALCOHOLIC judge. testimony trial Her was not that BOARD, BEVERAGE CONTROL taking Laida to school would have harmed Respondent, (as proffer) the child in point 2 of her or that doing so “academically would have been use- (as point less” 3 of proffer). On the Samdo, Inc., Intervenor. contrary, Ms. very Brown insisted that she No. 97-AA-2. daughter much wanted her inbe there, and that bring she tried hard to Appeals. District of Columbia Court of away every but that the child ran day. If Ms. Brown had testified that her reason Argued Jan. taking Laida to school was that school April Decided harmed way, Laida in some then we would an entirely have different case. proffer,
Point 1 of the defense on the other
hand, would tend corroborate Ms. Brown’s
testimony consistently that Laida refused to
attend school and thwarted Ms. ef- Brown’s *8 proposed
forts take her expert there. The
evidence could have revealed traumatic might
events in Lakia’s life and have rein- testimony regarding
forced Ms. Brown’s
intensity going of Lakia’s resistance to
school.1 circumstances,
Under all of I am not
prepared dispute the court’s conclusion
that a necessary remand is determine refusing trial court’s error in to authorize expert psychologist
the services of an noting, though, according 1. It is grandmother worth when her or father took her. testimony, regularly Lakia attended school