State v. BucknerState v. Buckner
We reverse the order of the trial court. There is no constitutional infirmity in
The trial court found
Our starting point is the vagueness test formulated in Reynolds v. State:
The test of vagueness of a statute is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and purpose. The statute must give reasonable notice that a person‘s conduct is restricted by the statute. 383 So.2d 228 at 229 (Fla. 1980).
The Reynolds test requires that we infuse the meaning of any statute with our “common understanding and purpose.” Obviously, if we demanded precise definition of every statutory word to shield against the void for vagueness doctrine our codified laws would fill endless shelves and the result would be obfuscation rather than clarification of our organic law. Instead, in the absence of a statutory definition, we shall assume the common or ordinary meaning of a word. State v. Little, 400 So.2d 197, 198 (Fla. 5th DCA 1981).
The statute provides that a child‘s regular school attendance may be achieved at any one of four facilities:
(1) a public school supported by public funds.
(2) a parochial or denominational school;
(3) a private school supported in whole or in part by tuition charges or by endowments or gifts; and
(4) at home with a private tutor who meets all requirements prescribed by law and regulations of the state board for private tutors.
§ 232.02, Fla. Stat.
The statute becomes vague only if one fails to attribute the common, ordinary meaning to certain key words: “school” and “home.” As to the word “school,” the pertinent statutes provide some guidance.
The Legislature‘s intent behind the home tutor requirement is clear — to insure the child‘s welfare. Therefore, although in some exceptional circumstances a child may live at a place on which a private school is located and where instruction is undertaken for an organization of pupils, the statute clearly prohibits an unqualified parent from teaching a child at home under the guise that a private school has been established. Indeed, as is stated in State v. M.M. and S.E., 407 So.2d 987 (Fla. 4th DCA 1981),
[t]his is so for the reason that the Legislature, in
Section 232.02 , clearly intended to distinguish between private schools on the one hand and home instruction by a private tutor on the other. If “private school,” as that term is used inSection 232.02(4) . People v. Turner, 121 Cal. App.2d Supp. 861, 263 P.2d 685, 688 (1983). Since the Legislature saw fit to incorporate subsections (3) and (4) inSection 232.02 , both sub-sections must be given effect in accordance with the above quoted rule of statutory construction [that the effect must be given to each subpart of a statute as well as to the statute as a whole]. 407 So.2d at 990.
Parents need not guess at the interpretation of
We reverse the trial court‘s order and remand the case for a full determination of whether the parents had indeed established private schools or were merely attempting to evade the statutory prescriptions under the pretense that the children‘s home was also their school.
CAMPBELL, A.C.J., concurs.
LEHAN, J., dissents with opinion.
LEHAN, Judge, dissenting.
Basic Reasons for this Dissent
I dissent. I would affirm and would hold that the relevant statutes are unconstitutionally vague. The strongly held views as to the application of the law which are expressed in this dissenting opinion do not at all detract in any way from the great respect in which I hold the majority. I simply feel the majority opinion in these cases is mistaken in failing to apply established principles of law and thereby works injustices which would be compounded in any future, similar cases.
In my view the majority opinion is incorrect in at least two basic respects: (1) in appearing to place the unquestionably important educational interests of children, in their receipt of what may be perceived to be proper types of schooling, paramount over the constitutional due process interests of citizens, especially the parents who are defendants in these criminal prosecutions;
The majority opinion directs the trial court on remand to determine whether the parents in these cases had established private schools. Therefore, on remand the trial court is to be faced with the same problem which caused the Georgia and Wisconsin Supreme Courts, in cases which this dissenting opinion discusses, to declare the compulsory school attendance statutes in those states unconstitutional: the problem of determining without statutory criteria what is a “private school.” In so doing, the trial court, in my view, will be improperly creating judicial legislation, as would this court on any subsequent appeal from the trial court‘s determination in that respect.
The Florida legislature has itself shown the legislative nature of the subject matter of this suit. The legislature has not simply failed to spell out what it is that parents in situations like those in this case may and may not do, but also, as discussed in this dissenting opinion, the legislature in 1969 repealed, and did not replace, private schooling statutes designed to address the type of problem at hand by establishing standards for private schools. It is the task of filling that void created by the repeal of those statutes that the majority opinion has assigned to the trial court on remand.
I certainly recognize and appreciate the difficulty faced by the legislature in this area and have no desire to be critical of the legislature which, I presume, has grappled with the problem. I simply cannot countenance parents being criminally prosecuted for failing to understand what the legislature has not expressed. What a court may perceive to be in the best educational interests of children, interests to be addressed by the legislature, should not cause parents who do not share those perceptions to be criminally convicted.
This case involves a difficult issue of constitutional law with important ramifications. This dissenting opinion undertakes to address that issue and to spell out those ramifications rather fully in a manner which it is hoped will be abundantly clear. Whereas the effect of the majority opinion is to affirmatively say that the meaning of the relevant statute is obvious, this dissent says otherwise. Therefore, this dissenting opinion must establish a negative. To do so it must explore and exclude all possible affirmative interpretations which could support the majority‘s apparent conclusion of obviousness which I believe is substantially unexplained. Thus, this dissenting opinion undertakes to explain why it is believed that the majority opinion‘s simple answer to the issue at hand is, in effect, simplistic.
Facts, Issues, Summary of Reasoning and Proposed Holding
These are two consolidated appeals from dismissals by the County Court of Hillsborough County of charges alleging that parents violated
What type of judicial decisions this appeal does and does not concern should be emphasized. This case does not concern a decision as to what type of schooling children should receive or whether they can receive at home or in certain other nonpublic school settings what a court might feel is a proper education. That is for the legislature to determine and to express in legislation. Generally, under our constitutional system of separation of powers the legislative branch makes the laws, the executive branch enforces them, and the judicial branch interprets them and determines their constitutionality. This case does concern whether the Florida compulsory school attendance statutes give parents sufficiently clear notification of where they may and may not send their children to school so that if they don‘t send their children
Regular attendance within the intent of s. 232.01 may be achieved by attendance at:
(1) A public school supported by public funds;
(2) A parochial or denominational school;
(3) A private school supported in whole or in part by tuition charges or by endowments or gifts; and
(4) At home with a private tutor who meets all requirements prescribed by law and regulations of the state board for private tutors.
A private tutor must have a valid Florida teacher‘s certificate.
Appellants were charged with violations of
“The test of vagueness of a statute is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and purpose. The statute must give reasonable notice that a person‘s conduct is restricted by the statute.” Reynolds v. State, 383 So.2d 228, 229 (Fla. 1980).
These appeals turn upon whether the wording of
The statute does not contain definitions of parochial, denominational, or private schools. A school is defined in
In addition to lacking definitions, the statutes contain very few requirements for nonpublic schools which could aid in an attempt to define what qualifies as a private, parochial, or denominational school. Sections 228.041(13) and (16) define the number of hours comprising a school day
A few requirements are imposed specifically on nonpublic schools. For example,
There is no precise, objective legal test by which to determine whether a particular statute is or is not void for vagueness. The above-quoted test for determining whether a statute is unconstitutionally vague itself has somewhat imprecise aspects. I agree with the Wisconsin Supreme Court that there is “no simple litmus-paper test to determine whether a criminal statute is void for vagueness.” State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750, 753-54 (1983). The task of a court in resolving this type of issue is to perceive what, if any, “common understanding” there is of particular statutory wording.
In arriving at a perception of the common understanding of a statute it is helpful to bear in mind the interests to be protected by the “void for vagueness” doctrine. The interests involve constitutional due process concerns. The statute in question must give (a) “fair notice of the conduct prohibited or required” and (b) “proper standards for enforcement of the law and adjudication.” State v. Popanz, 332 N.W.2d at 754; Reynolds v. State, 383 So.2d at 229-30. The United States Supreme Court has described these interests as follows:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972). In short, the statute must provide fair notice to those bent upon compliance and must not permit arbitrary enforcement. As a practical matter, the concern with arbitrary enforcement may be the most significant in these types of cases; most parents may rely upon the enforcing authorities to tell them what the law is.
The general nature of the arguments by defendant and the state can be summarized as follows. Defendants contend that their children attend private schools and that private schools are approved by subsection (3) of
We must, therefore, decide the issues of whether subsection (4) means what the state contends, i.e., that any at-home schooling must be with a private tutor, and whether subsection (3) means what defendants contend, i.e., that a private school, if conducted so as to produce adequate basic education may be at a student‘s home. I conclude that neither subsection (4) nor subsection (3) is sufficiently clear so as to provide a common understanding of the answers to those issues. As to subsection (3), I conclude that that subsection does not define what a private school is and that there can be no sufficiently understood common meaning of the term “private school” so that there could be common understanding of whether or not a private school could properly be at a student‘s home. Furthermore, I conclude that if a nonpublic school is operated in such a way as to provide what would be generally understood to be an adequate basic education, there is, in the absence of a clear statutory prohibition, no necessarily logical reason why it may not be conducted in a student‘s home. As to subsection (4), I conclude that, while that subsection says that schooling at a student‘s home is approved if it is conducted by a private tutor regardless of any other factor relating to education, it does not say that no other schooling at a student‘s home, no matter how that schooling is operated, is approved.
As I have said, the words in subsection (4) are in a sense clear enough. The principal problem comes from considering what subsection (3) means. Subsection (3) fails to define “private school,” and the lack of any sufficiently clear common understanding of that term leaves a parent with no sufficiently clear understanding of what nonpublic schooling, whether or not at a student‘s home, qualifies as a private school and what, if any, schooling at home without a private tutor would be acceptable. I am not saying that the statute means that a private school may or may not be at a student‘s home. I am only saying that there can be from
(A) The Broad Meaning Approach — The relevant words are not defined by statute and have no precise, commonly understood meanings; even under very broad definitions, the words “private school” in subsection (3) do not have sufficiently understood, common meanings which would appear to be consistent with the apparent overall purpose of
(B) The Most Likely Meaning Approach — The most likely intended meaning of the term “private school” would generally connote some kind of organized, institutional education; however, the practical nature of that type of education is not described in subsection (3);
(C) The State v. M.M. Approach — State v. M.M., 407 So.2d 987 (Fla. 4th DCA 1981), the closest Florida case, is a truancy case and contains reasoning which would uphold the constitutionality of
(D) This Dissent‘s Approach — While I recognize the persuasiveness of the M.M. reasoning, as well as other reasoning which could lead to the M.M. result, proper alternative interpretations of subsections (3) and (4) are reasonably debatable; I believe that due process concerns in the criminal prosecutions which are before us compel a conclusion that
(E) The Effect of the Dissent‘s Approach —
Because of the importance of these cases and the difficulty of the concepts involved, this dissenting opinion undertakes to explain the above-outlined reasoning in some detail.
(A) The Broad Meaning Approach —
In light of the foregoing presumption of constitutionality, my efforts have been aimed at finding that
In explaining the conclusion that those words in
This broad approach to the words in subsections (2) and (3) as to nonpublic schools is as follows:
“If the Legislature uses a word without defining it then its common or ordinary meaning applies.” State v. Little, 400 So.2d 197, 198 (Fla. 5th DCA 1981). The common, ordinary meanings of the relevant words in this case might be derived from definitions in a common dictionary, such as Webster‘s New World Dictionary (College Ed. 1957). For example, “school” is a place for teaching and learning. Id. at 1304. “Denominational” is an adjective meaning sponsored or controlled by a religious sect. Id. at 392. A “sect” is a group with common beliefs. Id. at 1317. “Religion” is a belief in a divine or superhuman power to be obeyed and worshipped as the creator and ruler of the universe. Id. at 1228. Thus, a denominational school could be thought of as a place for teaching and learning which is sponsored or controlled by a group with a common belief in a divine or superhuman power to be obeyed and worshipped as the creator and ruler of the universe.
“Parochial school” means a school supported and controlled by a church. Id. at 1064. A “church” in this type of situation can be thought of as a particular religious sect. Id. at 262.
As to the meaning of “private school,” the legislature has provided some guidance by using the phrase “supported in whole or in part by tuition charges or by endowments or gifts... .” Thus, the parents of a child who regularly attends a place for teaching and learning that is even partially supported by tuition, gifts or endowments could be said to be attending what the statute refers to as a private school.
Under this broad approach, I also note that the fact that common meanings of words may be broad does not necessarily make them vague. Nor would the relevant words here be rendered vague in the constitutional sense by an acknowledgement that a variety of nonpublic schools which are not of the most well recognized type may be within their meanings. For example, in contrast to a Roman Catholic high school, a school supported by a less well known, small religious group might fall within the foregoing definition of a parochial or denominational school. Also, although a person teaching his own children might not come within the foregoing statutorily derived definition of a private school because he could not, in the legal or common and well understood sense, pay himself tuition or give himself endowments or gifts, he might arguably come within that definition if he paid the tuition to a corporation operating the school or if a friend gave him an endowment or gift to partly defray the costs of operating the school.
But I believe that even that broad approach does not yield constitutionally permissible results in this case. Under that broad approach the term “private school” would take on technical, stilted, artificial meanings. For example, under that approach a parent teaching his children at home might seem to be in compliance with the statute if the parent received for those purposes a gift, e.g., pencils or books, from a friend, or if the parent had the foresight to form a corporation so that in his teaching he worked for the corporation and gave school supplies, as well as the use of his home, to the corporation. I do not believe the legislature intended that there be a distinction between (a) parents with their own resources teaching their children at home (unlawful conduct even under the foregoing broad approach) and (b) parents teaching their children at home through a corporation or with some resources received from third parties (lawful conduct under that approach). Also, under that approach neighboring parents could each lawfully teach their children at the other‘s
Of equal importance, I do not believe that the foregoing broad approach validly reflects the legislature‘s intent in its use of the term “private school.” Under that approach it would seem likely that the underlying legislative purpose of the compulsory education laws could or would be subverted. Surely that purpose relates to ensuring that all children receive some basic education of the type generally understood to be desirable. Cf.
(B) The Most Likely Meaning Approach —
As I have said, the statutory words in issue here do not have precise, commonly understood meanings. In the final analysis I believe the term “private school” in subsection (3) has a commonly understood meaning which is more specific than that derived from the foregoing broad approach and yet is still inherently vague because a citizen bent upon compliance could not know how to comply. In this regard I agree with the conclusion of the Georgia Supreme Court in Roemhild v. State, 251 Ga. 569, 308 S.E.2d 154, 158 (1983) that the term “private school” commonly connotes some sort of organized form of education involving some type of institution. See also State v. Popanz, 112 Wis.2d at 174, 332 N.W.2d at 755. But the relevant Florida Statutes are almost totally silent as to what type of organized education or what type of institution, if any, is meant to be involved.
The same sorts of questions exist in trying to interpret
Must the place of education be an “institution” which many children attend and which has an influx of new students and outflux of graduating students every year, or may parents teach or have their children taught at home? Must the “school” provide for the yearly sequential advancement of students or may students proceed at their own pace? What facilities, such as libraries, classrooms, or playing fields must the “school” provide? What must be the educational background of the teachers — must they be state certified or may “qualified” persons teach? What kind of curriculum and educational materials must be provided — must they rigidly compare to public schools or can a “private school” vary their nature? And, finally, must the time schedule of a “private school” be consistent with that of a public school?
I agree with the Georgia Supreme Court in its adoption of the reasoning of the Wisconsin Supreme Court, which also declared the counterpart Wisconsin statute to be void for vagueness, that “the legislature
(C) The State v. M.M. Approach —
The state cites State v. M.M., 407 So.2d 987 (Fla. 4th DCA 1981), as support for the proposition that the teaching by a nontutor parent of his children at home is criminal conduct.2 M.M. reasons that, by specifying in subsection (4) of
Concern with the reasoning of M.M. may be otherwise more fully explained as follows. M.M. is to the effect that if a child receives schooling at home, the instruction must be done by a private tutor under the requirements of
In summary, there seems to be no clear-cut manifestation of legislative intent that a child may not receive schooling at home unless by a private tutor. There is no clear-cut manifestation of legislative intent that subsections (3) and (4) have necessarily mutually exclusive applications. The legislature did not specifically say, as it could have said if that had been its intention, that all at-home schooling must be with a private tutor. Nor, if we are to perceive unmanifested legislative intent
(D) This Dissent‘s Approach —
I have pondered the point of the view represented by M.M. Although section (C) above criticizes that view, I should recognize the closeness of this case by also presenting that view in another, more positive manner, as is undertaken below.
A simple analysis of
M.M., the holding of which reaches the same result as this simple analysis, draws support from authority elsewhere. Cited in M.M. is People v. Turner, 121 Cal. App.2d Supp. 861, 263 P.2d 685 (1953), where the California legislature‘s approval of private schooling, on the one hand, and instruction by a private tutor, on the other, as alternatives to public schooling clearly showed that at-home schooling may not be conducted without a private tutor. “[A] mere reading of [the relevant California statute] clearly indicates that the legislature intended to distinguish between private schools, upon the one hand, and home instruction by a private tutor or other person, on the other. If a `private school’ as that term is used in [the relevant California statute] necessarily comprehends a parent or private tutor instructing at home, there was no necessity to make specific provision exempting the latter.” 263 P.2d at 688. The California court distinguished a facially contrary holding in People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950) by pointing out that the counterpart statute in Illinois did not approve of nonpublic schooling as being either at a private school or by a private tutor.
Similarly, under the M.M. approach the reasoning of Roemhild v. State and State v. Popanz, referred to in section (B) above as support for the conclusion that subsection (3) of
Further supporting the “simple analysis” described above could potentially be an arguable legislative purpose which could be
However, all of the foregoing arguments in support of the simple analysis and M.M. are not entirely valid. The California statute dealt with in Turner is actually significantly different from
The nub of the problem, it seems to me, involves whether subsection (4), by saying that schooling at home may be with a private tutor, implies that there may be no other type of schooling at home. In arriving at that type of interpretation the court in M.M. used the maxim “ut res magis valeat quam pereat.” 407 So.2d at 990. The court reasoned that under that maxim effect should be given to each provision of a statute in construing its effect as a whole, and if subsection (3) would mean that a private school may be at home, there would have been no need to enact subsection (4). For the reasons outlined in section (C) of this dissenting opinion, I question the application of that maxim to the circumstances in this case and in M.M. where parents teach their children at home. I especially question that application in the circumstances which are argued to exist in this case and are said to involve at-home schooling fulfilling basic, educationally oriented criteria and which were not shown to have been involved in M.M.
But I think the real difficulty comes, not from the foregoing maxim, but from the effect of M.M. which I believe is to more nearly apply another legal maxim. By saying that the legislature, in authorizing at-home schooling with a private tutor, impliedly
Therefore, I think that whether the M.M. reasoning is valid in this case turns, in the final analysis, upon whether the “expressio unius” maxim should properly be applied to these circumstances which entail constitutional due process concerns. I think not. The “maxim, `Expressio unius est exclusio alterius,’ ... should be sparingly used in construing the constitution ... [and] `should be applied with great caution to the provisions of an organic law relating to the legislative department... .‘” Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 881 (1944), quoting from State v. Bryan, 50 Fla. 293, 39 So. 929, 956 (Fla. 1905). In Bryan the Florida Supreme Court decided that simply because the legislature had been constitutionally authorized to pass laws excluding from public office persons guilty of certain types of misconduct, the legislature was not thereby impliedly precluded from excluding others from office for other reasons. In Taylor the supreme court decided that simply because the constitution provided that separate property of married women could be charged in certain circumstances for their debts that did not mean that it could be charged only in those circumstances. 19 So.2d at 880-882.
The rationale for applying the “expressio unius” maxim only with great caution in this type of case is reflected by the Florida Supreme Court‘s opinion in Bryan. Bryan, quoting from an old Ohio case, indicates that if a court says that a statute means things other than what the statute says, the court may improperly be entering into “thought or inquiry as to the wisdom of the [legislative] act or the motives which induced it.” Bryan, 39 So. at 956. “Questions as to wisdom, need or appropriateness [of statutes] are for the Legislature.” State v. Bales, 343 So.2d 9, 11 (Fla. 1977).
It may well be that some, or even many, parents would read
I do not believe a meaning should be attributed to a statute as being the commonly understood meaning in a criminal case like this simply because I recognize, as I do with respect to the meaning attributed to subsection (4) by M.M., that people may arrive at that meaning when I also recognize, as I do, that others (e.g., those who wish to give private schooling at home) may not. Standards of proscribed criminal conduct, to be constitutionally valid, should be “explicit.” Grayned v. City of Rockford, as quoted, supra.
Accordingly, the foregoing so-called “simple analysis” and M.M. provide arguments which can be made for the constitutionality of
I do not conclude that a parent‘s common understanding of
The fact is that the Florida statute is materially lacking as to what the legislature meant with respect to this type of case. Citizens bent upon compliance with
The colloquy as to
The point is not necessarily what legal interpretation under principles of statutory construction a court, upon analysis, would choose to place upon the statute. The point is to avoid derogating the foregoing due process interests in these criminal cases. The statute does not convey a “sufficiently definite warning as to the proscribed conduct when measured by common understanding... .” Reynolds v. State, supra.
Since I conclude that subsection (3) is unconstitutionally vague, I would declare
There might be argued to be, as defendants argue here, no direct conflict between this dissenting opinion and M.M. which was a dependency proceeding pursuant to
(E) The Effect of this Dissent‘s Approach —
Reading all the foregoing Florida statutes together, a criminal offense is said to be committed if a child does not regularly attend any of the public or listed types of nonpublic schools or receive private tutoring at home. I have concluded that subsection (3) of
Therefore, I conclude that
Although I have discussed only the constitutional infirmities of
Nonetheless, my proposed holding would not necessarily affect all prosecutions under sections 232.19 and 232.09. In situations where a child is in fact not receiving any schooling under even the foregoing broad definition of that term,
Conclusion
As I have explained, I have searched for legislative intent and have pondered possibly intended, rational concepts by which to define the terms used in
Notes
“... Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted. Such school shall be taught in the English language and shall offer instruction in the several branches of study required to be taught in the public schools of the State.
The attendance of the pupils shall be kept by private school authorities in a register and the record of attendance shall indicate clearly every absence of the pupil from school for a half day or more during each day that school is maintained during the year... . Children not attending a private full-time day school, and who are being instructed in study and recitation for at least three hours a day for 170 days each calendar year by a private tutor or other person, in the several branches of study required to be taught in the public schools of this State and in the English language shall be exempted. The tutor or other person shall hold a valid State credential for the grade taught. The instruction shall be offered between the hours of 8 o‘clock a.m. and 4 o‘clock p.m.”