State v. LaBarge, 230-75

• Decision Date: 06 April 1976
• Docket Number: No. 230-75,230-75
• Citation: 357 A.2d 121,134 Vt. 276
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Joseph LaBARGE et al.

Page 121

357 A.2d 121

134 Vt. 276

STATE of Vermont v. Joseph LaBARGE et al.

No. 230-75.

Supreme Court of Vermont.

April 6, 1976.

M. Jerome Diamond, Atty. Gen., and Phoebe Morse, Asst. Atty. Gen., Montpelier, for plaintiff.

William B. Ball, Harrisburg, Pa., and J. William O'Brien, Burlington, for defendants.

Before BARNEY, C. J., and SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J. (Ret.), Assigned.

BARNEY, Chief Justice.

This is a prosecution for truancy. The State's Attorney of Lamoille County brought criminal actions against several parents in district court in 1974. The charges were that these defendants had failed to cause their school age children to attend school as required by 16 V.S.A. § 1121, after notice under 16 V.S.A. § 1127. Prior to trial, in response to motions to dismiss for lack of a prima facie case under V.R.Cr.P. 12(a) the lower court did dismiss the informations.

Permission was granted to the prosecution to bring this appeal, and the several cases were consolidated for this purpose. The lower court certified the following question:

In a prosecution under 16 V.S.A. § 1121, was the trial court correct in dismissing the Information on the representation by the State that the Dept. of Education had made no determination of 'equivalency' as that term is used in 16 V.S.A. § 1121(b), prior to the filing of this complaint?

The ruling below was made on a state of facts that appears to be, for the purposes of this case, undisputed. The children in question were all attending school, and were of an age where attendance is required, but the school at which they were being educated was a private school, apparently of religious affiliation and admittedly not approved under 16 V.S.A. § 166. The school had applied for such approval but was found deficient in some unspecified particulars, and invited to reapply when they were remedied. To date, it has not done so. The case for the prosecution rests on this unapproved status of the school.

This case must be considered in the light of the fact that the charge involved is a criminal one, potentially subjecting these parents to criminal penalties. It is, therefore, the burden of the prosecution to establish by the requisite measure all of the essential elements of the criminal act. State v. Oakes, 129 Vt. 241, 258, 276 A.2d 18 (1971).

It is the application of that requirement to this case that is central to the question certified here. The State argues that it is not required, as part of the prima facie case, to negative each of the exceptions to required attendance enumerated in 16 V.S.A. § 1121:

(a) A person having the control of a child between the ages of seven and sixteen years shall cause such child to attend a public school continually for the full number of days for which such school is held, unless such child is mentally or physically unable so to attend or is otherwise being furnished with equivalent education or has completed the tenth grade or is excused by the superintendent or a majority of the school directors as provided in this chapter.

(b) The determination of equivalency referred to in subsection (a) of this section shall be made by the state department of education and certified to the school directors.

In view of the statutory pattern relating to the institution of such truancy charges, the issue raised by the prosecution cannot be treated in the abstract. Briefly, these matters begin with a notice from a teacher or principal that a child between the ages of seven and sixteen years who should be in school is not. 16 V.S.A. § 1126.

The truant officer's first obligation is to 'inquire into the cause of the nonattendance of the child.' If he finds that the child is absent 'without cause' he has the duty to notify the person having charge of the child that the child is absent without cause, and directing that custodian to require the child to attend school regularly thereafter. 16 V.S.A. § 1127(a).

The notice referred to is a prerequisite to the bringing of proceedings. State v. Burroughs, 102 Vt. 33, 35-36, 145 A. 260 (1929). 16 V.S.A. § 1127(b) provides that a fine can be assessed only after notice.

Under 16 V.S.A. § 1127(c), the truant officer initiates a prosecution by entering a complaint with the appropriate prosecutor and 'shall furnish him with a statement of the evidence upon which such complaint is based.' This statutory section then provides In such prosecution, the complaint, information or indictment shall be deemed sufficient if it states that the respondent, (naming him) having the control of a child of school age, (naming him) neglects to send such child to school as required by law.

Presumably, the Legislature felt that any indefiniteness in the complaint was compensated pensated for by the specifics called for in the earlier notice. In any event, this question is not raised. But the relationship of the notice to the charge is of moment here. The truant officer in this case did as the statute directed and made inquiry into the cause of the children's absence. He found the children were attending school, but that that school had not been approved by the state board of education under 16 V.S.A. § 166.

According to the affidavits of the truant officer, a part of the record before us, the notices he gave the parents involved were to the effect that their children were in a state of truancy because they were not attending an 'approved' school. Under State v. Burroughs, supra, 102 Vt. at 36, 145 A. 260, this, as the only precedent notice, defines the grounds upon which truancy can be charged.

The concept of notice also effectively nullifies the prosecution's complaint about its burden in dealing with the exceptions. Those exceptions have to be looked into as...