*1 of Arkansas Wayne BURROW v. STATE CR 83-162
Supreme Court Arkansas Opinion delivered May Christian, P. for appellant. C. *2 ir Parker, Cook Johnson, Whitehead; Ware, W. John W, Summers,
Dunlevie, Bird; R. and Richard by: Wendell Institute, The Rutherford for amicus curiae Rutherford Foundation, Defense and Chris- Legal Institute of Georgia tian Home Education Association. Powell, Clark, Gen., Leslie M. Asst. Atty.
Steve Atty. by: Gen., for appellee. Burrow, Hays, was Wayne Steele Appellant, Justice. school, minor in violation with to send a to refusing
charged Ann. (Repl. 1980): Ark. Stat. 80-1502 § residing or other Every parent, guardian, person custody of Arkansas and in having within the State or children between the of seven charge any child ages [7] and fifteen [15], (both inclusive) shall send such or children to or parochial child a public, private, such for with this penalty noncompliance school under section as hereinafter provided. his he was educating had authorities that
Appellant notified a cor- using supplied by at home curriculum daughter Prior to he received being charged, school. respondence five days comply. and was given notice of noncompliance in Court Municipal was found Pulaski Appellant guilty Circuit Court County was heard in Pulaski case then $1,000. and fined Appellant where he convicted again statute is void 1) three for reversal: presents points the free exercise clause 2) the statute violates vagueness; Constitution; that finding the trial court erred 3) state to approve private gives power § schools. us find the statute unconstitu-
Appellant urges attendance requires He that our law tionally vague. argues at school” but of children a “public, private parochial school constitues fails to definition what give any and, therefore, of the conduct does not fair notice provide that prohibited. recognize down on have been struck to ours laws similar Ga. cases: Roemhild two recent this ground 166, v. Popanz, State 112 Wis.2d 308 S.E.2d however, at this point we decline (1983), N.W.2d 750 lacks the appellant as we think the question consider this case. the facts of that issue on to raise standing challenging that when accepted principle It is an of vagueness, on the ground of a statute constitutionality one of the must be the statute challenging individual innocent,” fair warning. has not received who “entrapped action, falls within the clearly If, his individual he cannot be heard statute proscribed by conduct 461; Tribe, 2d, L. American See 16A Am. complain. § Jur. *3 Beck, see Winters v. Law Constitutional § stated the traditional Ark. (E.D. 1968). F. Supp. 793 281 v. 274 vagueness standard for determining Jordan of average “Where a man (1982): meaning as to the would not have to speculate intelligence of is specificity the requirement the statute constitutional met, conduct given.” of the warning since fair proscribed is are to “send” their statute states that parents
Our a school.” parochial children to “public, connotes an phrase The common understanding institution to which a child is sent and even the appellant’s that the common testified conception witnesses expert in the institutional these terms was consistent with schools would sense. We think someone of average intelligence do that educational methods recognize readily appellant’s a school within the common understanding constitute a of the word. The he devised consisted of program single student, child; in his his own instruction was held own home; there is wanted to open no indication that appellant understood, school, or that his as that term is popularly his went other than beyond educating purpose anything teachers own child at home. There were no certified classes, his wife as acting conducting only appellant instructors, neither of held a college degree; whom through correspon- instruction done for the most part course, dence the State. Under evidently unapproved circumstances, was clear these of the statute language him notice appellant put adequate on that a enough of home would study course not constitute a school within of the statute. meaning second contention is also without merit. He Appellant’s is in of his submits statute violation First Amendment the free exercise his He relies right religion. primarily Yoder, out in Wisconsin on the laid balancing test However, (1972). U.S. the circumstances case us before plainly lack considerations exceptional There, Yoder. defendants, were who present were Amish, demonstrated distinct beliefs practices religious by three supported centuries of tradition as an identifiable overtones, sect with religious pronounced cultural and that would have damaging conse- on quences those traditions. In longstanding balancing the interests, the court determined state were objectives not seriously impeded by Amish system. educational In contrast, sincere, the appellant, while doubtless was able to no make of a showing religious cultural tradition Yoder, to that in comparable nor that serious harm similarly would result course, the practices of a distinct Of group. appellant to send his to a daughter parochial free education, for a oriented religiously as he had previously done.
Appellant’s third point was not raised in the trial court *4 and not will be considered. v. Moss 280 655 375 (1983). error, no we Finding affirm the judgment. Hollingsworth, concur. JJ., Purtle Adkisson, Hickman, dissent. J., C.J., Purtle, I. Justice, concurring. was appellant John found guilty not sending his child to a “public, private, or parochial school.” The child in fact taught at being home with materials from a correspondence school. The argument was that the had appellant to right give his child a “religious education.” No member of this court is of his give does have right that a not opinion parent in in Nothing a the home. child education religious not free are even that remotely suggests parents opinion I think the children in a manner. educate their religious child out of any type a simply says keeping opinion is of the statute requiring school a violation organized their “public, private, to send children to parents school.” parochial Hollingsworth, Appellant
P. Justice, concurring. A. he is of the state’s from the exempt penalties contends his child is instructed education laws because at beliefs. The sincerely religious home on the basis of held but I think does not address majority question precisely, has not it should be addressed because this Court previously considered this issue. first amendment is
The free exercise clause an governmental absolute prohibition against regulation beliefs religious protection substantial provides belief. Wisconsin v. lawful in grounded conduct religious Yoder, Verner, Sherbert U.S. v. U.S. 398 “Not all burdens on are unconstitutional (1963). religion and there are instances where the state may justify religious liberty by showing limitation on that it essential ” interest. United an accomplish overriding governmental Lee, 252, 257-258 States (citation (1982) omitted). U.S. in Enforcement of statutes this instance will prohibit only from their children at home but will parents educating them from their tenets. prevent observing religious They must send their children to but can still teach them at home. The court has Hickman, dissenting. Justice,
Darrell in ignoring the issues this case simply avoided cases, in which criminal apply of law we guiding principles and, other states my decisions from point over passing ill use to punish has its put power simply judgment, to raise the If has no noncomformity. standing Burrow *5 Arkansas, no one has. a school is in private of what question not his child to sending He has of a crime for been convicted — school. He notified the school in this a private case department education that he was to educate his going child at home and was given but an nothing opinion by director that such a was not practice as a recognized private course, school. The reason for the no is there is opinion, law, rule or in regulation defining private Arkansas. Private schools may without operate any regula- accredited, tion state whatsoever if are they there is no requirement be accredited. Burrow was they asked at the trial if he had a license and he no. There replied, is no such in license Arkansas. There are statutes that any with, school must such as comply the United displaying States American flag teaching Stat. Ann. history. 80-1604, 80-1613 (Repl. 1980). basic language §§ school must be English; violation is a misdemeanor. Ark. Stat. Ann. 80-1605 None of (Repl. 1980). these statutes are § relevant because the only question is whether Burrow is of a crime guilty because he did not send his child to school in violation of Ark. Stat. Ann. (Repl. 1980). § statute, other, Neither this nor any defines school. In private Arkansas can anyone or conduct a open private school under, I suppose, any circumstances. There are dozens of Arkansas; such schools in the state should perhaps regulate field, this but it has not and that fact cannot be avoided.
In Wisconsin and
which have the same
Georgia,
type
statutes with
voids
equal
schools,
definition of
courts have
highest
struck
down the criminal statutes as void for
Roemhild
vagueness.
State,
v.
Ga.
Popanz,
State
v.
As in Popanz,
(Wis. 1983).
[T]he *6 under- would intelligence ordinary of one a person of for the education institution to mean an stand sources. from private its funds which receives children Wisconsin, We, of are with the Court Supreme along which a is definition only that this not convinced State could deduce. intelligence ordinary of person at Popanz, 332 N.W.2d 755. clearly word “school” we that the
Although agree must that an education organized one on notice puts child, are many questions be to the there provided nature, the educa- of place concerning scope, statute or by the tion which are left unanswered A of questions these sampling authorities. applicable be ‘institution’ Must the of education an follows: place influx which has an children attend and many which every students new students and outflux of graduating taught or their may parents or teach have children year, the yearly at Must provide home? “school” students or may advancement of students sequential facilities, such as at their proceed pace? own What libraries, classrooms, must or fields playing be educational “school” What must provide? — be state they must the teachers background kind teach? may certified or What ‘qualified’ persons be pro- must curriculum and educational materials — schools or public vided must they rigidly compare And, finally, can a their vary school’ nature? ‘private school’ be must the time schedule of a ‘private with consistent that of school? public exactly with confronted In the Court Popanz us: before question 118-15(l)(a) that sec. argues
The defendant other nor statute itself neither defective because rules define or regulations statutes nor administrative anyone He asserts school.’ ‘private the phrase rules, book, regulations, the statute consulting Public Department writing other official determine district the local school Instruction what constitutes school would be con- founded.
[*] # # # defendant, *7 statutes, Like this we have searched the administrative rules and and official regulations Department of Public Instruction for a defi- writings nition of school’ or criteria an ‘private which entity must meet to be classified as a school’ for ‘private purposes of sec. 118-15( )(a). We have found neither a definition nor prescribed criteria. Nor does the phrase ‘private school’ have a well-settled in com- meaning mon or in parlance decisions of this which court could be used for of purposes applying 118.15(l)(a). sec. therefore decline to adopt the definition of ‘private school’ proposed by court of or the State appeals Superintendent of Public Instruction in a amicus brief.
# # # # . . . In event the any legislature its delegated agent should school’; the phrase ‘private citizens or the define courts should not have to guess at its meaning. Since there is school,’ no definition of as that term ‘private used in sec. 118.15(l)(a), determination what constitutes a ‘private school’ rests apparently solely the discretion of the school officer of district.
# [*] [*] [*] The lack of definition of school’ ‘private delegates matter, the basic policy the determination of whether school, not children are attending to local school officials whose decisions rest ad hoc may on subjective standards. Sec. 118.15( thus )(a) poses the danger enforcement, arbitrary discriminatory contrary to the basic values underlying principles of due process. See Grayned v. City Rockford, 408 104, 108, 2294, 2298-99,33 U.S. S.Ct. L.Ed.2d 222 (1972). the law should obey who must
The persons means. school’ ‘private at what the phrase have to guess standards to guide some objective should have They lawful and ‘steer between in their attempts them Rockford, Grayned City unlawful conduct.’ 2294, 2298, 33 104, 108, 92 (1972). L.Ed.2d 222 U.S. S.Ct. Furthermore, in the minds of lie only standards cannot We must it is enforce the laws. duty whose persons fair notice that the statute fails to provide conclude lacks it also obey those who would seek to (Italics sufficient standards enforcement. proper supplied.) “send,” that the statute majority says The emphasizes — not I next door or across the street presume,
meaning, down the hall or out back. such a Why presumption? is an also the statute means a school
majority opines — or a “institution.” What is an institution one person *8 persons? Why legislature dozen don’t we require violating define school before we convict private people an undefined non-existent crime? not mention
The United States constitution does a free education. Arkansas’ mentions only constitution education, of any which is a desirable endeavor public That was the society. But for all education was years, private. not the the state define and justify rule Unless can exception. law, for schools it should not convict regulations kind its citizens of a crime for trying provide education fit their child. they necessary deem and 313, State
In
Bryant, (1951),
sound defined in so a fashion. vague be principle, it, the moral idio- upon under Criminality depends who the court syncrasies compose the individuals be ever jury. varying, The standard of crime would to as the courts be constantly appealed would reform, all with instruments of moral changing simply fluctuations The law is moral sentiment. constitution, ex post null. The which forbids facto laws, make an act law which would could not tolerate a crime, not, sentiment which to the moral according after judge jury with might happen prevail the act had been committed. conform, he refuses to
In Burrow loses because my j udgment establish- thereby threatening power political ment, The state has and not because he committed a crime. man, but it doesn’t have power punish right.
Edward E. HUGHES v. R. GIBBS et al
Gary 669 S.W.2d Court of Arkansas Supreme Opinion delivered May *9 Brown, P.A., R. for appellant. J.
Wright, Lindsey ér Jennings, Gary R. appellee Gibbs.
Callahan, Crow, Lax, Wright, Bachelor & M. by: Gary Lax, for R. appellee Horner. J.