People v. Y. D. M. (State Report Title: People in Interest of Y.D.M.)

• Decision Date: 23 April 1979
• Docket Number: No. 28250,28250
• Citation: 593 P.2d 1356,197 Colo. 403
• Parties: , 9 A.L.R.4th 112 The PEOPLE of the State of Colorado, Petitioner-Appellee, v. In the Interest of Y.D.M., Minor Child-Appellant, and concerning M.M., Respondent. *
• Court: Colorado Supreme Court

Page 1356

593 P.2d 1356

197 Colo. 403, 9 A.L.R.4th 112

The PEOPLE of the State of Colorado, Petitioner-Appellee, v. In the Interest of Y.D.M., Minor Child-Appellant, and concerning M.M., Respondent. ^*

No. 28250.

Supreme Court of Colorado, En Banc.

April 23, 1979.

Rehearing Denied May 14, 1979.

John D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for petitioner-appellee.

J. Gregory Walta, Colorado State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, Denver, for minor child-appellant.

CARRIGAN, Justice.

The juvenile court adjudicated Y.D.M., the thirteen-year-old appellant, ¹ to be a child in need of supervision (CHINS) ² based on a jury's determination that she had violated Colorado's compulsory school attendance law, section 22-33-104, C.R.S. 1973. We reverse and remand for a new trial.

At trial the official attendance records kept by the minor child's homeroom teacher revealed that Y.D.M. had been absent 55 of 94 school-days during the first semester of the 1976-77 school year. Reasons for these absences advanced by the child's mother and the school social worker were illness, failure to catch the school bus because of inconsistent scheduling, and desire to avoid harassment by a group of boys at school.

The jury found that Y.D.M. had been absent from school nine or more days during the first semester of the 1976-77 school year, in violation of the statute which required that she attend school for at least 172 days each school year. Section 22-33-104(1), C.R.S. 1973. They also found that she had failed to prove by a preponderance of the evidence any of the statutory defenses, I. e., that the absences were justified by illness, injury or mental or emotional disability. Section 22-33-104(2)(a) and (2)(c), C.R.S. 1973.

The appellant was determined to be a child in need of supervision and placed on probation subject to her normal obligation to attend school regularly. Section 19-1-103(5)(a), C.R.S. 1973 (1978 Repl. Vol.).

Appellant here argues that the General Assembly exceeded its constitutional authority in enacting section 22-33-104. She further asserts that the trial court denied her due process in placing on her the burden of proving, by a preponderance of the evidence, the asserted justifications for her absences. We do not agree with these contentions. We do, however, agree with the appellant's assertion that the trial court committed reversible error in failing to instruct the jury that duress is an affirmative defense to a charge of violating section 22-33-104.

I. Constitutionality of Compulsory School Attendance Law.

The Colorado Constitution, in Article IX, section 11, states:

"Compulsory education. The general assembly may require, by law, that every child of sufficient mental and physical ability, shall attend the public school during the period between the ages of six and eighteen years, for a time equivalent to three years, unless educated by other means."

Colorado's compulsory school attendance law, which Y.D.M. was determined to have violated, provides:

"Every child who has attained the age of seven years and is under the age of sixteen years, except as provided by this section, shall attend public school for at least one hundred seventy-two days during each school year, or for the specified number of days in a pilot program which has been approved by the state board under section 22-50-103(2)." Section 22-33-104, C.R.S. 1973.

The appellant contends that the General Assembly, in enacting section 22-33-104, ³ which requires school attendance for more than three years, violated the state constitution because the above-quoted language of Article IX, section 11, restricts the legislature's power to compel school attendance to no more than three years.

The people of Colorado, in adopting the state constitution, created the General Assembly and vested it with plenary power to adopt general laws, subject only to the restraints and limitations of the state and federal constitutions. Colo. Const., Art. III; Colorado State Civil Serv. Employees' Ass'n. v. Love, 167 Colo. 436, 448 P.2d 624 (1968); Mauff v. People, 52 Colo. 562, 123 P. 101 (1912); People ex rel. Tucker v. Rucker, 5 Colo. 455 (1880). The General Assembly, therefore, may enact any law not expressly or inferentially prohibited by the constitution of the state or of the nation. People v. Richmond, 16 Colo. 274, 26 P. 929 (1891); In re Kindergarten Schools, 18 Colo. 234, 32 P. 422 (1891).

Article IX, section 11 is not such a limit on the General Assembly's power to compel school attendance for more than three years. It is obvious that the purpose of this provision was to encourage the General Assembly of a pioneer state to adopt compulsory education for at least three years. There is no plain, express limitation on the General Assembly's authority to declare the state's policy regarding compulsory school attendance. Since the provision is not clear, it is our duty to construe it in a manner which will effectuate its obvious purpose favoring school attendance. To adopt the construction sought by the appellant would do violence to the overall objective of the constitutional provision.

In construing Article IX, section 11 as not imposing a three-year maximum limitation on compulsory education, we bear in mind that "it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. 316, 407, 4 L.Ed. 579, 601 (1818) (Marshall, C. J.). Indeed this court very early recognized that:

"(n)arrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government. A constitution is to be construed as a frame of government or fundamental law and not as a mere statute." Denver v. Mountain States Telephone and Telegraph Co., 67 Colo. 225, 228, 184 P. 604, 606 (1919).

In order to assure the continuing vitality of our state constitution beyond an age when brittle words lose life and relevance to unforeseen problems, we must consider "the object to be accomplished and the mischief to be avoided" by the provision at issue. Inst. for the Educ. of the Mute and Blind v. Henderson, 18 Colo. 98, 104, 31 P. 714, 717 (1892).

This 1876 constitutional provision reflects the progressive attitude toward education that prevailed when Colorado was still primarily a frontier society of miners, farmers, ranchers, shopkeepers, and traders endeavoring to meet the responsibilities of statehood. The framers of our constitution recognized the importance of an informed, educated electorate to the preservation of representative government. ⁴ Consequently the people wisely encouraged the General Assembly to enact compulsory school attendance for their children. See People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927).

The ensuing century has dramatically changed Colorado. Fortunately, however, our 103-year-old constitution endures because its principles are adaptable to changing times. Because of the urbanization, industrialization and growing complexity of our state, the general purpose expressed in Article IX, section 11, to encourage compulsory education is more important today than in 1876. Consequently, if we are to preserve the spirit and intent plainly manifested in the language we interpret, we cannot adopt a narrow construction that this provision absolutely forbids the General Assembly to require school attendance for more than three years. As Mr. Justice Oliver Wendell Holmes, Jr., so aptly stated: "The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482, 491 (1931).

The General Assembly, by enacting section 22-33-104, has recognized the crucial role of education in our modern society, just as the framers of our state constitution recognized it over a century ago. By that enactment the legislature did not transgress, rather it faithfully carried out, the intent and purpose of Article IX, section 11. We hold, therefore, that the General Assembly did not exceed its constitutional authority in enacting the compulsory school attendance law.

II. Burden of Proof.

The trial court instructed the jury that the prosecution must establish beyond a reasonable doubt that the minor child was between the ages of seven and sixteen years and was absent from school for nine or more days during the first semester of the 1976-77 school year. Sections 19-3-106 and 22-33-104, C.R.S. 1973.

Further the court instructed the jury that the appellant had the burden of proving by a preponderance of the evidence that any absences totalling nine or more days were justified by temporary illness, injury or some mental or emotional disability. Section 22-33-104(2)(a) and (c). Appellant here asserts that imposing on her the burden of proving one or more of the stated justifications for noncompliance with the school attendance law constituted a denial of due process. We disagree.

A juvenile proceeding concerning a child in need of supervision is not a criminal or quasi-criminal case. It bears no punitive aspect. Rather it is designed to protect and guide the child in the manner which will best serve the interests of the child and society. Sections 19-1-102 and 19-1-103(5), C.R.S. 1973. The protective purposes of the proceeding are not hindered by imposing on one who asserts one of the statutory excuses for noncompliance the burden of proving that excuse. Cf. section 18-1-407, C.R.S. 1973.

Certain procedural protections have been extended to a child involved in a delinquency adjudication. People in the Interest of R. A. D., Colo.,586 P.2d 46 (1978); ...