State v. Anderson

Decision Date28 June 1988
Docket NumberCr. N
Citation427 N.W.2d 316
Parties48 Ed. Law Rep. 649 STATE of North Dakota, Plaintiff and Appellee, v. Deborah ANDERSON, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Lawrence E. ANDERSON, Defendant and Appellant. os. 870261, 870262.
CourtNorth Dakota Supreme Court

Wendy P. Schulz (argued), States Atty., Jamestown, for plaintiff and appellee.

Briggs Law Firm, Fargo, and Michael P. Farris (argued), Home School Legal Defense Ass'n, Great Falls, Va., for defendants and appellants.

ERICKSTAD, Chief Justice.

Lawrence and Deborah Anderson appeal from county court judgments of conviction for their violation of the compulsory school attendance law, Chapter 15-34.1, N.D.C.C. We affirm.

The parties stipulated that the Andersons continuously lived in the Jamestown School District during the 1986-87 school year and did not send their three school-age children to Jamestown Public Schools during that year. Lawrence testified that he and Deborah believe that God has given them responsibility for their children, including their education, and that their religious convictions require them to teach their children at home. Although they are not certified teachers the Andersons taught their children at their home school which was not an approved private or parochial school under Section 15-34.1-03(1), N.D.C.C. Lawrence and Deborah were each charged with three counts of violating the compulsory school attendance law, and after a bench trial, they were found guilty. They have appealed.

The Andersons first contend that the Legislature cannot regulate their home school because Article VIII, Sec. 1, of the North Dakota Constitution authorizes the Legislature to create a system of public schools but does not authorize the Legislature to regulate education in non-public schools.

In construing constitutional provisions we apply principles of statutory construction. Federal Land Bank of St. Paul v. Gefroh, 418 N.W.2d 602 (N.D.1988). Our primary duty is to ascertain and give effect to the intent and purpose of the framers and adopters of the constitution. Id. Constitutional provisions as well as statutory provisions must be considered as a whole to determine that intent. See County of Stutsman v. State Historical Society of North Dakota, 371 N.W.2d 321 (N.D.1985). Each section must be harmonized to give effect to each of its provisions whenever fairly possible. Id. In construing the North Dakota Constitution, we must also keep in mind that it is an instrument of limitations of authority whereas the United States Constitution is an instrument of grants of authority. State ex rel. Agnew v. Schneider, 253 N.W.2d 184 (N.D.1977). The North Dakota Legislature thus has plenary powers except as limited by the state constitution, federal constitution, and congressional acts, id., and treaties of the United States. Art. VI, Sec. 2, U.S. Const.

The relevant sections of Article VIII, N.D. Const., provide:

"Section 1. ... the legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control....

"Section 2. The legislative assembly shall provide for a uniform system of free public schools throughout the state, ...

"Section 3. In all schools instruction shall be given as far as practicable in those branches of knowledge that tend to impress upon the mind the vital importance of truthfulness, temperance, purity, public spirit, and respect for honest labor of every kind.

"Section 4. The legislative assembly shall take such other steps as may be necessary to prevent illiteracy, secure a reasonable degree of uniformity in course of study, and to promote industrial, scientific, and agricultural improvements."

Sections 1 and 2 authorize the Legislature to establish "public schools." However, those sections must be read and harmonized with Section 4 which authorizes the Legislature to take necessary steps to prevent illiteracy and ensure uniform instruction. Moreover, Section 3 requires that all schools instruct in areas of knowledge that impress upon the mind the importance of "truthfulness, temperance, purity, public spirit, and respect for honest labor of every kind." When each of those constitutional provisions are given effect and harmonized, the Legislature's plenary power is not limited to regulating only "public schools." Rather, those constitutional provisions authorize the Legislature to regulate all schools subject, of course, to limitations that may be imposed by other constitutional provisions and congressional acts.

The Andersons nevertheless cite a Texas trial court decision, Gary W. Leeper et al v. Arlington Independent School District et al, No. 17-88761-85 (17th Jud.Dist.Tex. April 13, 1987), in support of their position. In that case Section 21.033(a)(1) of the Texas Education Code provided that any child in attendance at a "private or parochial school" was exempt from the requirements of compulsory attendance; however, the Texas Legislature had not defined "private or parochial school" and had not given the Texas Education Agency or the State Board of Education the authority to define those terms. The Texas court determined that the Texas State Board of Education had no authority to promulgate a rule defining "private or parochial school" in a manner inconsistent with Texas' historical practice of permitting home schools to qualify as private or parochial schools.

The Texas case was decided on the issue of the legislative delegation of authority to an administrative board and is therefore distinguishable from the issue presented in these cases. Moreover, although Texas had a constitutional provision similar to N.D. Const. Art. VIII, Sec. 1, it did not have constitutional provisions similar to sections 3 and 4. Accordingly, we do not believe that the Texas decision provides persuasive authority for interpreting our constitutional provisions. We therefore conclude that Article VIII of the North Dakota Constitution authorizes the Legislature to regulate public and private schools.

The Andersons next contend that Section 15-34.1-03, N.D.C.C., authorizes a financially interested decisionmaker, the local school board, to determine whether or not a student may be excused from public school attendance. The Andersons assert that the Jamestown School District receives between $1,200 and $1,900 in foundation aid payments for each student attending public school and therefore the local school board has a financial interest in not excusing students from the compulsory attendance law under Section 15-34.1-03, N.D.C.C. Relying on Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), the Andersons argue that Section 15-34.1-03, N.D.C.C., therefore violates the due process clause of the Fourteenth Amendment of the United States Constitution.

The State responds that the Andersons' religious objections are based on having their children taught at schools utilizing certified teachers as required by Section 15-34.1-03(1), N.D.C.C., and that, pursuant to that section, the local school board does not approve private or parochial schools and has no decision-making power, but merely monitors whether or not school-age children are attending approved schools. 1

Section 15-34.1-03, N.D.C.C., provides, in relevant part:

"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."

The Due Process Clause entitles a litigant to an impartial, neutral, and disinterested tribunal in both civil and criminal cases. Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Neutrality in adjudicative proceedings safeguards two critical concerns of procedural due process: the prevention of unjustified or mistaken deprivations and the opportunity for the individual affected by the decisionmaking to participate in the process with the assurance that the arbiter is not predisposed to find against him. Id. Thus, in Tumey v. Ohio, supra, the United States Supreme Court reversed criminal convictions rendered by a city judge who was also the city mayor and whose salary as mayor was paid in part by fees and costs levied by him in his judicial capacity. The Court stated that the Due Process Clause would not permit any "procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused." Tumey v. Ohio, supra, 273 U.S. at 532, 47 S.Ct. at 444. In Ward v. Village of Monroeville, supra, the Court invalidated a procedure by which sums produced from a mayor's court accounted for a substantial portion of municipal revenues, even though the mayor's salary was not augmented by those sums.

In assessing the Andersons' due process argument we must keep in mind that if a statute is susceptible of two constructions, one of which would render it of doubtful constitutionality and one which would...

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