*1 569 39735. ROEMHILD et al. v. THE STATE.
Bell, Justice. constitutionality
This case concerns of OCGA 20-2-690 (Code Ann. 32-2104), the Georgia school attendance provides every which parent having control child of a ages between the and seven sixteen shall enroll the in and child private send child to a or public school.1 appellants, Terry Roemhild,
The and Vickie are the In school-age September they three children. late of 1981 were for violating by allegedly arrested law to enroll in failing public private their children a or school for the period August 24 September 1981. The Roemhilds moved to dismiss the charges grounds, on various constitutional and also defended on the in being taught basis that children were at home private operated by appellants.
There case, was a bench trial at which evidence showed appellants that, are high graduates, although both and Vickie had been a substitute teacher the Head Start one program summer, Sunday schools, and had taught schools and Bible neither parent any has training qualified formal or to be as a background teacher; accordingly, neither holds a teacher’s certificate from the State Board of Education.
The child- their to teach their testified that decision privately ren in God and His laws. stemmed from their partly beliefs They God, they are members of Worldwide Church of and that, testified them although require their church’s did doctrine not schools, withhold their public they public children from felt the (a) (Code 32-2104). Every parent, guardian, OCGA 20-2-690 other or person residing having charge any within this state control or child or children birthdays their between seventh and sixteenth enroll and send child or shall such public school; private responsible enrolling children to a or and such be child shall for attending public and penalty noncompliance or school under such for (b) this subsection as is in subsection of this Code section unless his failure parent, guardian, person, to enroll and attend is caused his or other case which parent, guardian, responsible; however, provided, or other alone shall be physical military and that tests exams service and the National Guard and such may approved other absences as be State Board of Education or the board of education shall be excused absences. (b) Any parent, guardian, person residing or other in this state who control has charge of a part guilty child or who shall violate this shall of a and, upon thereof, misdemeanor subject conviction shall he to a fine exceed not to imprisonment both, days, $100.00 or exceed not to at the discretion the court jurisdiction. having day’s part Each absence from school violation of shall this separate constitute offense. would not be religious their beliefs because schools were undesirable they convinced that were particular, schools. at those transmitted immoral, quality provide not did schools were unsafe children, effect on their already disruptive had a and had duty they had a view that personal religious they held thereby injurious avoid these children themselves educate their *2 effects. their began to teach July 1981 the Roemhilds
Accordingly, teaching suc- home, and, they thought their because children at out of the school their children cessful, they decided to hold home continue their year school and regular the system during original the and September In a letter dated education. the local principal, local school sent copies of which were schools, schools, superintendent the state and superintendent decision, and their authorities of Roemhilds informed these they had teaching legal, to be that, they wished their stated since law did not Georgia that much research and had discovered done explicitly require home education and did not explicitly prohibit children at they could teach their certification of before if was that, moreover, parent said that home, a federal court had and by parent given and that if the education competent to teach attendance adequate, home education satisfied was law. only response
The received Roemhilds was from State Department It of Education. stated that school interpreted attendance law had been to mean all had to children institution, in a recognized enrolled educational but that court questions decisions had raised as to the definition of a school. The letter further informed the Roemhilds that school officials at state in position level were not to tell the Roemhilds whether their lawful, desire to teach their children at home was and that whether system the local in compliance school would consider them question Roemhilds, law was a that addressed itself to the the local system, legal and the local authorities. The letter inform did they the Roemhilds keep needed to records and submit them to the local attendance officer.
The they attempts Roemhilds also testified that made further principal contact the local school superintendent schools to requirements they discover what needed to meet in order to teach their at home be in compliance with the law. They they get testified that could no one to discuss the matter with them, but that the local attendance officer did tell them that the local superintendent did not consider home education to be compliance with the law.
Despite officials, the ambiguous responses from school appellants program continued their of home education. The week, they days testified that hold classes five Bible, English, spelling, and reading being taught Ms. Roemhild from science, 8:00 a.m. to 12:00 p.m., history, math being taught by Mr. p.m. p.m. Roemhild from 5:00 to 8:00 There are no Rpemhilds children other than the They the class. testified that the schedule consists of fifty minute classes with ten minute breaks between each. The children taught are all one of the bedrooms. desk, Each separate child has a and Mr. and Ms. Roemhild have a desk and chalkboard at the front of the Although room. there was evidence that in some courses each child is taught at his or her own level, there was evidence history and science lessons were the same for all three children. Additionally, although the evi- dence shows that the Roemhilds are making good faith effort acquire current teaching materials from a Christian learning or- ganization, it also shows that present several of the texts are out- dated. evidence, foregoing stipulated addition to the at trial it was Department authority regulate the State of Education has no
private require private schools and cannot therefore certification of teachers, that and state law does not define what is meant private school. sufficiently
The trial judge ruled that the Roemhilds had not issues, raised the constitutional not operating and were (Code school” within the of OCGA 20-2-690 Ann. meaning § § 32-2104). guilty the of Accordingly, judge found Roemhilds law, nineteen violations of which school attendance day was an assessment of one each school the children violation for kept were at home. contend, appeal, things,
On other among 32-2104) (Code impermissibly vague OCGA 20-2-690 Ann. is and process, that, violates due we nevertheless find the and the event constitutional, permit statute construe it to home we should impermissibly vague, education. As we find that the statute is we need not the latter reach contention.
1).
had not
Because
the trial court held the Roemhilds
sufficiently
to OCGA
challenges
raised their
constitutional
(Code
32-2104),
20-2-690
we must first decide the correctness
record,
that the
ruling.
examining
persuaded
of this
After
we are
therefore,
sufficiently
vagueness challenge;
Roemhilds did
raise their
State,
(1)
appeal. Arp
v.
403
properly
that issue is
before us on
249 Ga.
495)
(1) (279
687)
State,
572
2). vagueness, preface following As to the issue of we discussion the caveat are not now question of we power of the passing upon propriety either the of home it, approve it legislature power legislature to exclude or the restrictions, opinion with or without and we venture no thereon. Instead, solely upon application principle we focus of the “basic if its process vagueness of due that an enactment is void for Rockford, prohibitions Grayned City are not v. of clearly defined.” (92 222) (1972). 2294, 104, 108 regard, 408 U. S. SC 33 LE2d In this sufficiently give person statute must be definite to criminal ordinary intelligence required fair notice of the behavior which is or 48, 49-50 (96 243, 46 prohibited. 108; Locke, SC Id. at Rose v. 423 U. S. State, 185) (1) (300 663) Sabel v. (1975); LE2d 250 640 SE2d Ga. Caby v. (1983); (1) (a) (287 200) (1982). 249 If it Ga. 32 SE2d not, criminally responsible does then an individual cannot be held reasonably conduct which he or she could not have understood to proscribed imposed. Locke, Rose v. 423 U. S. at
Moreover, sufficiently a criminal statute must set definite assigned duty standards for those who are to enforce it so that policy impermissibly policemen, basic matters are not delegated “to for resolution on an ad hoc and basis, judges, juries subjective arbitrary discriminatory dangers attendant Rockford, application.” Grayned 109; v. v. 408 U. S. at Smith 605) (94 (1974); Goguen, 415 U. S. 572-573 SC 39 LE2d (102 Estates, 489, 498 Estates Flipside, Hoffman Hoffman 455 U. S. 362) City Dallas, (1982); SC Bullock v. 71 LE2d 248 Ga. (2) (281 613) (1981). SE2d
These principles recently applied by Supreme were Court Wisconsin when it considered state’s own, practically one held that it identical to our (4-8) (1983). was void for vagueness. Popanz, State v. NW2d The statute there provided that a control of a child having between the six ages eighteen had to cause that child to regularly school, attend either a private and the statute was “ ‘singularly question silent on the of what constitutes *4 ” school.’ Id. at 753. administrative any
Because neither the Wisconsin statute nor rules regulations “private or defined criteria specified school” or qualify school,” which had to be met “private to as a the court found persons the statute did not sufficient notice to on give bent obeying the law. Id. at 754. The court also found that the lack of “private definition of local delegating school” had the effect of to policy officials the basic attending decision of whether a child was a “private school,” of posed danger arbitrary and thus the discriminatory enforcement. Id. at 755-756.
We
Georgia compulsory
find that
school attendance
law
suffers from the same
It is
infirmities.
clear that neither OCGA (Code
32-2104)
20-2-690
Ann.
administrative
any
nor
rules or
regulations
phrase
prescribe
define the
“private school” or
criteria
which an
must
entity
qualify
“private
meet to
as a
school.” The first
concern we
address whether this lack of
provide
definition fails to
notice
parents
fair
of what constitutes
“private
school” to
to
wishing
have their children attend a
at
“private
Grayned
school.” Id.
754.
City Rockford,
of
U.
108;
S. at
Sabel v.
Notwithstanding, argues phrase the state school” is one person of ordinary intelligence would understand mean an for institution the education of which receives its We, funds from along Supreme sources. Court Wisconsin, are this only not convinced that is the definition which ordinary intelligence Popanz, could deduce. State v. at NW2d
Although agree we word clearly puts “school” one on child, notice that an organized education must be nature, are many questions there concerning scope, place the education are applicable which left unanswered or statute authorities. A sampling questions place these Must the follows: many education an “institution” which children attend and which an influx has of new students and outflux of graduating students every year, may or have at taught teach their children sequential home? Must the “school” provide yearly ad- may proceed vancement of students or at their own pace? students facilities, libraries, classrooms, What such as playing fields must provide? the “school” What must be the background educational they may the teachers must “qualified” be state certified or persons teach? kind What of curriculum and educational materials *5 schools or compare public they rigidly must must And, the time finally, must vary school” their nature? “private can a that of a be consistent with “private schedule of a school” school? interpretation of subjective nature of
Because of the
(Code Ann.
OCGA 20-2-690
“schooling,”
term
and because
§
§
unanswered, we
32-2104)
questions
many interpretive
leaves too
Supreme Court of Wisconsin
the conclusion of the
agree with
phrase
define the
delegated agent
or its
should
legislature
“the
at its
school’;
guess
the courts should not have
‘private
citizens or
conclude that
Popanz,
v.
332 NW2d at
and we
meaning,” State
ordinary
sufficiently
provide
of
the statute is not
definite
penalties,
its
fair notice of what
intelligence, who desires to avoid
755;
State,
v.
250 Ga. at
“private
constitutes a
school.” Id. at
Sabel
641;
Caby
Furthermore,
process value in
the statute violates a second due
officials,
it
to local law enforcement
impermissibly delegates
“private
judges,
juries
policy
decision of what constitutes
755;
Rockford,
108;
Grayned
City
school.” Id. at
v.
of
408 U. S. at
Dallas,
inadequacy, perhaps
City
Bullock v.
Thus, (a) (Code 32-2104) OCGA 20-2-690 Ann. allows local § § apply, they apply, officials to and even necessitates their own when predilections concerning determining standards and education if comply an individual’s actions law. The resolution whether someone’s conduct (a) (Code 32-2104)
violates OCGA Ann. 20-2-690 on ad such hoc subjective poses arbitrary danger standards enforcement, discriminatory contrary process which is to due values. 755; Rockford, Popanz, State Grayned v. 332 NW2d at v. any U. S. Although at 108-109. enforcement of law necessitates officials, Grayned the exercise of some degree judgment (a) City Rockford, 408 U. S. at we find that OCGA 20-2-690 (Code 32-2104) guidelines fails to establish minimum judgment, unconstitutionally the exercise of such and is therefore vague. above, must be the Roemhilds’ convictions given
For the reasons reversed. Clarke, concur, except All reversed. the Justices
Judgment Weltner, JJ., Gregory and who dissent.
Decided October Irvin, James T. for appellants. Stockton, D. Bowers,
V. Attorney, Attorney District Michael J. *6 General, McKee, General, Patrick W. Attorney Assistant appellee.
Ware, Parker, Johnson, Dunlevie, Bird, & Cook Wendell R. amicus curiae. Justice, dissenting.
Weltner, 1916, In Assembly Compulsory General first enacted the (Ga. 1916, 101), School Attendance p. “every Law L. requiring that parent, guardian, or other having charge and control of a child the ages eight between years, exempted fourteen who is not as provided, excused hereinafter shall cause the said child to be enrolled in continuously and to attend year for four months of each public school of the district or in city or town which the child resides;... Such attendance public required at a school shall not be where the child attends for the period same some other school giving in ordinary instruction branches English of an education. . . .” years later, Three the 1916 Act was repealed supplanted by which, Act of 1919 among other things, created the State Board of (Ga. 291). 1919, 288, Education L. pp. became, essence, section,
That statute in present code except requirement simply that is responsible person “shall enroll and send such public child or children to a (a) (Code 32-2104). school.” OCGA 20-2-690 question The presented in this appeal quite simple whether the term “private school” as used in the foregoing vague section is too by ordinary to be understood persons. State, this issue McCord v. recently
We have treated in 248 Ga. 765, 766 (285 724) (1982), SE2d relying upon therein well-established “ principles interpretation. statutory general principle Tt is a law that a statute must be definite in provisions and certain its to be valid, vague and when it is so and indefinite men common intelligence must necessarily guess at its and differ as to its meaning application, it violates the process first essential of due of law. [Cit.]’ Co., (101 707) of Atlanta v. Southern R. 213 Ga. 738 SE2d (1958).” McCord, “any we held that the term immoral or indecent vague act” was not so as to violate the requirement. said,
Can it now the term fail for school” must 576
vagueness?
I think not. sanctions, it criminal
First, compulsory carrying part Georgia of the law of since has been a Second, parents enroll their requiring wisdom of beyond is now educational institution adequate an grow could be allowed to parent “The child at the will of the quarrel. society; a more than useless member up ignorance and become neglect of his great wrong brought and for this about Purse, v. remedy.” Board of Education the common law no in Bateman v. 896) (28 (1897), quoted as 101 Ga. SE2d (1968). Bateman, (159 387) 224 Ga. SE2d Third, upheld, has been law (65 848) SE2d Anderson indirectly, App. 84 Ga. (1951). There, the conviction of a Appeals the Court of affirmed school, who, refused to offering father while to send his child to father’s contention that permit Rejecting the child’s vaccination. school, was, even indeed, by sending the child to compliance he immunization, the court though permit the child’s refusing unsound for the reason that an offer observed: “Such a contention is *7 thereto thing only upon precedent to do waiver of the conditions App. at 265. amounts to no offer at all.” 84 Ga. capable is
Finally, recently we have held that the word “school” as interpretation, relying upon dictionary definition of school “ (1) an institution training: source of education or as organized ‘[a]n ” Thomasville, of children.’ Risser v. 248 Ga. teaching for the (286 727) (1982). dealing SE2d “The cases here. The cases and statutes applicable education statutes are not statute, compulsory education cited, use including Georgia’s do not everyday They subject ordinary the word ‘school’ in its sense. limitation, only word ‘school’ to obvious words of so that the statute in a by children applies schools attended bracket, in particular Georgia.” such as seven to sixteen age ages (Emphasis supplied.) 248 at 867. Ga. in accord with the established order to resolve this issue total in precedents our state
longevity — common highest and with of all authorities what one not the activities only inquire sense we need as to whether or dictionary definition of school as provided by the Roemhilds met the (1) for “an as an institution organized training: source education teaching of children.” in We, below, difficulty no with the trial court should have Roemhilds, coming easily to the conclusion that the efforts of understanding well-intentioned, however fall far below the common organized of “an (1) source for education or training: as an institution for the teaching of children.”
We should not destroy the Compulsory Education Act because the statutory term school” is not defined with all of the exceptions, exclusions, reservations, provisos exemplifying regulation-writing genius of a federal bureaucracy.
39766. JACKSON v. GERSHON. Justice.
Smith, Certiorari granted was to review the decision of the Court of Appeals affirming grant of summary judgment for appellee in physician this medical action. We reverse. malpractice Appellant Irma Jackson was County admitted to Paulding Hospital Memorial September on severe complaining of pain lower back in Gershon, and blood her urine. Appellee a urologist, September first saw her on 13 and conducting recommended cystoscopy, a relatively simple procedure “lighted which a telescope” is through inserted the urethra1 into the bladder inspection of the Appellant bladder’s interior. agreed undergo cystoscopy, x-ray and an appellant’s urinary tract was taken that day. later, days Two on September Dr. Gershon for the first time x-ray reviewed this and noted the presence three small kidney non-obstructive in appellant’s stones left kidney, as well as an obstruction, of unknown origin, appellant’s right ureter.2
A cystoscopy performed was on September 15. Dr. Gershon found nothing unusual inside appellant’s bladder. After completing cystoscopy normal procedure, and without consulting appellant conducting x-rays, further tests or he inserted a “stone basket” up appellant’s device right attempt ureter an up to clear blockage procedure there. This caused a wall,3 break the ureteral *8 which in turn necessitated an extensive operation repair damage to appellant’s reimplant ureter and the ureter in her bladder.
1The urethra is a canal which carries urine from the bladder to the exterior of the body. tube, The ureter long, is a about 16 kidneys inches which connects the bladder. 3 It is unclear whether the “stone basket” itself or a catheter later inserted Dr. actually punctured Gershon appellant’s ureter.