Birst v. Sanstead, 920181

• Decision Date: 14 December 1992
• Docket Number: No. 920181,920181
• Citation: 493 N.W.2d 690
• Parties: 79 Ed. Law Rep. 1026 Clinton BIRST and Judith Birst, Plaintiffs, Appellants and Cross-Appellees, v. Wayne SANSTEAD, in his official capacity as Superintendent of the North Dakota Department of Public Instruction, Defendant, Appellee and Cross-Appellant, and Karen Kautzmann, in her official capacity as Morton County Superintendent of Schools, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 690

493 N.W.2d 690

79 Ed. Law Rep. 1026

Clinton BIRST and Judith Birst, Plaintiffs, Appellants and Cross-Appellees, v. Wayne SANSTEAD, in his official capacity as Superintendent of the North Dakota Department of Public Instruction, Defendant, Appellee and Cross-Appellant and Karen Kautzmann, in her official capacity as Morton County Superintendent of Schools, Defendant.

Civ. No. 920181.

Supreme Court of North Dakota.

Dec. 14, 1992.

Michael P. Farris (argued), Paeonian Springs, VA, and Gregory L. Lange (appearance), Richardson & Lange, Hazen, for plaintiffs, appellants, and cross-appellees Clinton Birst and Judith Birst.

JoAnn C. Toth (argued), Asst. Atty. Gen., Atty. Gen.'s Office, Bismarck, for defendant, appellee and cross-appellant Wayne Sanstead.

ERICKSTAD, Chief Justice.

Clinton Birst and Judith Birst (the Birsts) appeal from an order and declaratory judgment entered by the District Court for Morton County. The Birsts appeal from a part of the district court's decision requiring them to make their home, also used to educate their children, comply with all municipal and state health, fire, and safety laws applicable to private school buildings. Wayne Sanstead, in his official capacity as Superintendent of the North Dakota Department of Public Instruction, and Karen Kautzmann, in her official capacity as Morton County Superintendent of Schools (school officials), cross-appeal from part of the same order and declaratory judgment. The part the school officials appeal from allows parents educating their children at home to elect either the private school exception or the home-based instruction exception to the compulsory school attendance laws, Chapter 15-34.1, N.D.C.C. We affirm in part and reverse in part.

Until 1989, there was no specific home-based instruction exception to the compulsory school attendance laws ¹ in North Dakota. Therefore, parents educating their children at home had to adhere to the private school exception, which reads:

"Compulsory attendance--Exceptions. The parent, guardian, or other person having control of a child required to attend school by the provisions of this chapter shall be excused by the school board from causing the child to attend school whenever it shall be shown to the satisfaction of the board, subject to appeal as provided by law, that one of the following reasons exists:

1. That the child is in attendance for the same length of time at a parochial or private school approved by the county superintendent of schools and the superintendent of public instruction. No such school shall be approved unless the teachers therein are legally certificated in the state of North Dakota in accordance with section 15-41-25 and chapter 15-36, the subjects offered are in accordance with sections 15-38-07, 15-41-06, and 15-41-24, and such school is in compliance with all municipal and state health, fire, and safety laws."

Section 15-34.1-03(1), N.D.C.C.

Although this Court has never addressed the issue directly, it has acquiesced in the notion that allowing parents to educate their children at home under the private school exception is a legal method of avoiding prosecution for violation of the compulsory school attendance laws of Section 15-34.1-01, N.D.C.C. ² See State v. Melin, 428 N.W.2d 227 (N.D.), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 357 (1988) (children taught in the home must be taught by an individual with a valid teacher's certificate and this requirement does not infringe upon the parents' right of free exercise of religion); State v. Anderson, 427 N.W.2d 316 (N.D.), cert. denied, 488 U.S. 965, 109 S.Ct. 491, 102 L.Ed.2d 528 (1988) (requiring the teacher of children in a home school to have a teacher's certificate does not violate the establishment clause); State v. Patzer, 382 N.W.2d 631 (N.D.), cert. denied, 479 U.S. 825, 107 S.Ct. 99, 93 L.Ed.2d 50 (1986) (a teacher certification requirement for home schools is among the least intrusive methods available to satisfy the government's interest and does not violate the parents' right to free exercise of religion). See also State v. Brewer, 444 N.W.2d 923 (N.D.1989); State v. Toman, 436 N.W.2d 10 (N.D.1989).

The United States Court of Appeals for the Eighth Circuit agrees.

"As North Dakota has no legislation specifically dealing with home schools, they are considered private schools under this statute [Section 15-34.1-03(1), N.D.C.C.], and as such they cannot be approved by the state unless the teachers are legally certified."

Anderson v. Schultz, 871 F.2d 762, 763-64 (8th Cir.1989).

The Birsts have educated their children at home since 1983. During the time period within which the Birsts have utilized their home school, they contend that they have met all requirements of the private school exception. More importantly, the North Dakota Department of Public Instruction informed the Birsts on different occasions during the period from 1983 to 1989 that it approved of their home school as a private school. ³

On July 6, 1989, an amendment to Chapter 15-34.1, N.D.C.C., took effect which specifically addresses situations where school-aged children receive their education at home. The amendment adds a home-based instruction exception to Section 15-34.1-03, N.D.C.C. ⁴ This amendment provoked the school officials to send the Birsts correspondence directing them to comply with the home-based instruction amendment rather than the private school exception they abided by for over six years.⁵

Subsequent to the receipt of these letters, the Birsts filed an action in the District Court for Morton County for a declaratory judgment and an injunction. The Birsts contended that because the legislature has not expressly stated that all home schools must comply with the requirements of the new amendment, nor specifically repealed or amended their privilege to continue as before, they are free to elect either the home-based instruction exception or the private school exception to the compulsory school attendance laws. In the district court action, the school officials countered the Birsts' argument by asserting that the Birsts, as well as all other families practicing home education, have to comply with the home-based instruction exception. In the alternative, the school officials contended that, if the Birsts and others like them are allowed to utilize the private school exception, then they must satisfy all of the municipal and state health, fire, and safety laws applicable to private school buildings.

In its order and declaratory judgment, the district court determined that the Birsts are free to elect between the home-based instruction exception and the private school exception. However, should they choose the private school exception, they must comply with all municipal and state health, fire, and safety laws applicable to private school buildings. This appeal and cross-appeal followed.

We will consider the issue of election of exceptions first. As the Birsts assert, the home-based instruction exception does not refer to or conflict with the private school exception. The statute as amended does not specifically say that the home-based instruction exception is the exclusive method by which families with home schools may proceed to avoid the compulsory school attendance laws. Nor does it expressly limit the options which a family educating children at home may utilize. The amendment did not alter or limit the use of the subsection concerning private schools. Additionally, the private school exception and the home-based instruction exception are not repugnant when read together, nor do they facially conflict.

In light of the record and admission during oral argument that the authorities allowed home school families to operate under the private school exception prior to the amendment, we assume the Legislative Assembly was aware, when enacting the amendment, of the long use of the private school exception by home school families, of the appropriate administrative agency's acceptance of that use, and of this Court's decisions which give deference to such administrative construction when we are required to construe a statute whose meaning is unclear on its face. See Delorme v. North Dakota Dep't of Human Services (Civil No. 920062 at p. 3, filed 11/24/92), 492 N.W.2d 585, 587 (N.D.1992) ("courts are to give great weight to an agency's construction of a statutory scheme it is entrusted to administer"); Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 529 (N.D.1987) (this Court will give deference to the long-standing construction of a statute by an administrative agency); Walker v. Weilenman, 143 N.W.2d 689, 693 (N.D.1966) (courts will give weight to a practical and contemporaneous construction placed upon a statute by the agency charged with its administration).

In Tharaldson v. Unsatisfied Judgment Fund, 225 N.W.2d 39 (N.D.1974), we said: "The legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together." Id. at 45 (quoting Sands' Sutherland Statutory Construction, Vol. 1A, Section 22.13, at 139 and 149 (4th Ed.1972)). See Rodgers v. Freborg, 240 N.W.2d 63, 66 (N.D.1976); Adams County v. Smith, 74 N.D. 621, 23 N.W.2d 873, 877 (1946).

In essence, the school officials are asking us to give new meaning to a part of this statute, when the part they ask us to give new meaning to was not explicitly amended. If we were to do as requested, we would be confronted with the well-established rule that precludes us from amending or repealing legislation by implication.

"Implied amendments and implied repeals are not favored:

'An implied amendment is an act which purports to be independent of, but which in substance alters, modifies, or adds to a prior act. To be effective, an amendment of a prior act ordinarily must be...