State v. Thacker , 286 Neb. 16 ( 2013 )

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16 286 NEBRASKA REPORTS
treatment or categorizations that may follow from the workers’
compensation scheme will not always result in mathematical
niceties and, in some circumstances, may lead to inequality.51
But this does not make the Act unconstitutional. The Estate
has failed to sustain its burden52 of establishing the unconsti-
tutionality of the Act under the equal protection, due process,
special legislation, or right-to-jury provisions of the U.S. and
Nebraska Constitutions.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s dis-
missal of the Estate’s complaint. The Estate must seek compen-
sation from the employer for Teague’s death exclusively from
the Workers’ Compensation Court.
Affirmed.
Cassel, J., not participating.
51
See Otto v. Hahn, supra note 35.
52
See, e.g., State ex rel. Bruning v. Gale, 284 Neb. 257, 817 N.W.2d 768(2012).
State of Nebraska, appellant, v.
Eric C. Thacker, appellee.
State of Nebraska, appellant, v. Gail
L. Morgan-Thacker, appellee.
___ N.W.2d ___
Filed May 31, 2013. Nos. S-12-895, S-12-896.
1. Statutes. Statutory interpretation presents a question of law.
2. Appeal and Error. An appellate court reviews questions of law independently of
the lower court.
3. Criminal Law: Statutes: Appeal and Error. It is a fundamental principle of
statutory construction that courts strictly construe penal statutes, and it is not
for the courts to supply missing words or sentences to make clear that which is
indefinite, or to supply that which is not there.
4. Criminal Law: Statutes: Legislature: Intent. A court gives penal statutes a
sensible construction, considering the Legislature’s objective and the evils and
mischiefs it sought to remedy.
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STATE v. THACKER 17
Cite as 286 Neb. 165. Criminal Law: Statutes. A court will not apply a penal statute to situations or
parties not fairly or clearly within its provisions.
6. ____: ____. Ambiguities in a penal statute are resolved in the defendant’s favor.
7. Schools and School Districts: Parent and Child. Neb. Rev. Stat. § 79-201(2)
(Cum. Supp. 2010) does not require parents to enroll their child in a legally
recognized school until they obtain the State’s recognition of an exempt
homeschool.
8. Words and Phrases. The word “or,” when used properly, is disjunctive.
9. Schools and School Districts: Time. Under Neb. Rev. Stat. § 79-201(2) (Cum.
Supp. 2010), an exempt school’s ability to complete the minimum instruction
hours is the only timing requirement imposed upon an exempt school’s calen-
dar year.
Appeals from the District Court for Dawson County, James
E. Doyle IV, Judge, on appeal thereto from the County Court
for Dawson County, Carlton E. Clark, Judge. Exceptions
overruled.
Michael R. Johnson, Deputy Dawson County Attorney, for
appellant.
Mark R. McKeone, of Mark R. McKeone, P.C., L.L.O., and
Michael P. Farris and Peter K. Kamakawiwoole, Jr., of Home
School Legal Defense Association, for appellees.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
SUMMARY
Eric C. Thacker and Gail L. Morgan-Thacker (collectively
the Thackers) sought to homeschool their children but did
not obtain state recognition of their homeschool until October
2011. They did not enroll their five children in any legally
recognized school before then. In a joint trial, the county court
convicted Eric and Gail individually of five misdemeanor
counts—one for each child—for violating Nebraska’s com-
pulsory education statute.1 The county court convicted the
Thackers of violating the statute from August 17, 2011 (when
the public school calendar year began), to October 4 (when
1
See Neb. Rev. Stat. § 79-201 (Cum. Supp. 2010).
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18 286 NEBRASKA REPORTS
the State received notice that the Thackers would homeschool
their children). After consolidating the Thackers’ appeals, the
district court reversed. The State has appealed under Neb. Rev.
Stat. § 29-2315.01 (Reissue 2008), asking for a decision to
provide precedent under § 79-201 for future cases.
The State contends that § 79-201 required the Thackers to
ensure that their children attended a legally recognized school
every day of that school’s calendar year until their request to
operate a homeschool became effective. The Thackers contend
that Nebraska’s statutes and regulations required them to do
only two things: (1) have their children attend their home-
school every day that it was in session; and (2) complete the
minimum required hours of instruction by June 30, 2012, the
end of the school year.
We conclude that § 79-201 did not criminalize the Thackers’
failure to enroll their children in a legally recognized school
pending the State’s recognition of their homeschool. We over-
rule the State’s exceptions.
BACKGROUND
In March 2011, the Thackers moved to Farnam, Nebraska,
from New Jersey. Farnam is in the Eustis-Farnam Public
Schools district. In 2011, the public school calendar year
started on August 17. The principal of the public school
learned about the Thackers in March. After a couple of weeks,
when the family did not enroll their children in school, he con-
tacted the county attorney.
In April 2011, a sheriff’s officer contacted Eric about the
children’s not being in school. Eric told the officer that he
and Gail were homeschooling their children but that they
had finished the curriculum for their 2010-11 school year
before they moved to Farnam. The officer informed Eric
that they must file paperwork with the State and contact
the school district or that they could be violating the law.
Eric then contacted the principal, who told Eric that they
must file paperwork with the Department of Education (the
Department) over the summer if they intended to homeschool
their children. The Thackers did not enroll their children in
public school. Around the middle of September, the principal
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STATE v. THACKER 19
Cite as 286 Neb. 16wrote the county attorney that the children were not enrolled
in public school.
Gail testified that after the family moved to Farnam, Eric
received a job offer in Kentucky and they believed they would
be moving there at the end of September 2011. Instead, Eric
received a promotion at his job in North Platte, Nebraska,
and the Thackers planned on homeschooling. Based on their
religious objections, they applied to the Department for an
exemption from state approval and accreditation requirements
for schools. Gail said that they sent in the paperwork to the
Department about the end of September but that the envelope
was returned because she had not addressed it properly; she
resent the envelope. Their signatures on the forms were nota-
rized on September 27, 2011.
The Commissioner of Education acknowledged receipt of
the Thackers’ documents on October 6, 2011. On the same
day, the commissioner sent a report to all public school super-
intendents listing the parents from whom the commissioner
had received the required forms for homeschooling by October
4. The report stated that the commissioner recognized the
Thackers’ homeschool as of October 6. Gail testified that they
planned to start homeschooling on November 14. On October
11, the State charged the Thackers with violating § 79-201
from August 17 through October 4.
At trial, the Thackers argued that they did not violate
§ 79-201 because their children had attended their exempt
homeschool each day that it was in session. They argued that
the State had not proved they could not complete the mini-
mum hours of instruction required by state law before June
30, 2012 (the end of the school year). Gail testified that they
started their homeschool on November 7, 2011, and that they
could complete the required hours before June 30, 2012. But
the State argued that until an exempt school is in session and
conducting classes, the children must be enrolled in some type
of legally recognized school, and that the Thackers’ children
were not.
The county court found that the Thackers could complete the
required hours by the end of the school year. But it determined
that they were guilty of violating § 79-201 from August 17 to
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20 286 NEBRASKA REPORTS
October 4, 2011. The Thackers appealed to the district court,
which consolidated their appeals.
The district court reversed the decisions and remanded the
causes with instructions for the county court to vacate the
Thackers’ convictions and sentences. The court concluded that
for the first year of operation, the statutes and regulations
required only that the Thackers begin the operation of their
homeschool so that they could complete the required mini-
mum hours of instruction by June 30, 2012. The Department’s
regulations set June 30 as the end of the school year for the
Thackers’ homeschool. The court concluded that the Thackers
were not required to enroll their children in the public schools
pending the start of their exempt homeschool. It further con-
cluded that the Thackers’ compliance with § 79-201 was not
controlled by whether they had enrolled their children in an
exempt school by the start date for the public school calendar
year. Because the county court had found that the Thackers
could complete the required minimum hours of instructions,
the district court reversed.
ASSIGNMENTS OF ERROR
The State assigns, restated, that the district court erred
as follows:
(1) determining that § 79-201 does not require parents to
ensure that their school-age children attend a state approved or
accredited school until the parents obtain an exemption;
(2) determining that Neb. Rev. Stat. § 79-1601(3) (Cum.
Supp. 2012) does not establish the “effective” date of a par-
ent’s election statement as the date it is received by the
Commissioner of Education; and
(3) determining that the evidence admitted at trial was insuf-
ficient to support the convictions.
STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law.2 We
review questions of law independently of the lower court.3
2
See State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).
3
See State v. Bree, 285 Neb. 520, 827 N.W.2d 497 (2013).
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STATE v. THACKER 21
Cite as 286 Neb. 16ANALYSIS
The State contends that § 79-201 presumes students will be
enrolled in and attending a public school until a parent enrolls
his or her child in a different school that the State recognizes.
It concedes that § 79-201 allows parents to educate their chil-
dren in other types of legally recognized schools. But it argues
that until a parent obtains the State’s recognition of a private
homeschool, the child must be attending some legally recog-
nized school during the public school calendar year. And it
argues that under § 79-1601(3), the State’s recognition of a pri-
vate homeschool is not effective until the Department receives
a parent’s notarized statement of intent.
The Thackers contend that § 79-201 only required them to
have their children attend their exempt homeschool every day
that it was in session and to complete the minimum hours of
instruction required by law. They argue that Nebraska’s stat-
utes do not preclude them from starting a homeschool after
the public school calendar year begins or compel them to
enroll their children in a public school until their homeschool
begins operation.
We agree with the Thackers. We view the State’s argument
through the prism of statutory construction principles that
apply to penal statutes.
[3-6] It is a fundamental principle of statutory construction
that we strictly construe penal statutes, and it is not for the
courts to supply missing words or sentences to make clear
that which is indefinite, or to supply that which is not there.4
We give penal statutes a sensible construction, considering
the Legislature’s objective and the evils and mischiefs it
sought to remedy.5 We will not apply a penal statute to situa­
tions or parties not fairly or clearly within its provisions.6
So, ambiguities in a penal statute are resolved in the defend­
ant’s favor.7
4
See State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).
5
See State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).
6
See Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759
N.W.2d 75 (2009).
7
See State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
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Under Neb. Rev. Stat. § 79-210 (Reissue 2008), a per-
son violating a compulsory education statute8 is guilty of a
Class III misdemeanor. As stated, the State charged Eric and
Gail with five counts each of violating § 79-201. Section
79-201(2), in relevant part, provides the following:
[E]very person residing in a school district within the
State of Nebraska who has legal or actual charge or con-
trol of any child who is of mandatory attendance age or is
enrolled in a public school shall cause such child to enroll
in, if such child is not enrolled, and attend regularly a
public, private, denominational, or parochial day school
which meets the requirements for legal operation pre-
scribed in Chapter 79, or a school which elects pursuant
to section 79-1601 not to meet accreditation or approval
requirements, each day that such school is open and in
session, except when excused by school authorities or
when illness or severe weather conditions make attend­
ance impossible or impracticable.
(Emphasis supplied.)
Section 79-1601 sets out the requirements for obtaining
an exemption from state approval and accreditation require-
ments for schools. Under § 79-1601(3), an election to oper-
ate an exempt school is effective when the Commissioner of
Education receives a signed statement from the parents or legal
guardians of all attending students that provides the following
information: (1) their reason for electing not to educate their
child at a state accredited or approved school; and (2) their
commitments that an authorized representative of the parents
or legal guardians will submit information to prove that, gen-
erally, the school will meet the requirements for basic skills
instruction in specified subjects.
This filing requirement applies to any private, denomi-
national, or parochial school that “elects not to meet state
accreditation or approval requirements.”9 Private, unaccredited
8
See Neb. Rev. Stat. §§ 79-201 to 79-210 (Reissue 2008, Cum. Supp. 2010
& Supp. 2011).
9
§ 79-1601(3).
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STATE v. THACKER 23
Cite as 286 Neb. 16schools include homeschools.10 If the parent representative
does not provide the required information, or if any other
requirements for obtaining exempt status are not met, the
Department will notify the school district in which an attending
child resides that the child is not attending an exempt school
under § 79-201.11
The State contends that this filing requirement for exempt
schools and other notification statutes support its position that
parents must enroll their children in public school until they
obtain State recognition of an exempt school (one that is not
subject to accreditation or approval requirements). It argues
that school districts have the duty to enforce the compulsory
education statutes. And it argues that the notice requirements in
Nebraska’s statutes allow the superintendents of public school
districts to track whether a child in their district is or is not
attending a legally recognized school.
We agree that school districts have a duty to enforce school
attendance requirements and that notice requirements help
superintendents track children’s school attendance in their
districts.12 For example, each school must provide the pub-
lic school superintendent with the children’s names who are
enrolled in their school and the names of any children who
enter or withdraw from the school during the school session.
This information is required so the superintendent can enforce
§ 79-201.13 And, as stated, the Department will notify a school
district about any children who are not attending a recognized
exempt school.14
[7] But under the law as written, we do not agree that a child
must be attending a recognized exempt school each day of the
public school calendar year. Nor do we read § 79-201(2) as
requiring parents to enroll their child in a legally recognized
school until they obtain the State’s recognition of an exempt
10
See, generally, 92 Neb. Admin. Code, chs. 12 and 13 (2010).
11
Id., ch. 13, § 006.
12
See §§ 79-206, 79-208, and 79-209.
13
See §§ 79-205 and 79-207.
14
See 92 Neb. Admin. Code, ch. 13, § 006.
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homeschool. Instead, § 79-201(2) provides that a child must
“attend regularly a public, private, denominational, or paro-
chial day school . . . or a school which elects pursuant to
section 79-1601 not to meet accreditation or approval require-
ments, each day that such school is open and in session.”
(Emphasis supplied.)
[8] The word “or,” when used properly, is disjunctive.15
So the requirement in § 79-201(2) that a child attend school
regularly “each day that such school is open and in session”
refers to alternative school choices. That is, a child’s required
attendance at “such school” refers to a school subject to state
accreditation or approval requirements or an exempt school not
subject to such requirements.
And § 79-201(2) does not make the start of the public
school calendar year the default start date for other schools.
Nor does it provide that a child must attend a legally recog-
nized school each day of the public school year. The State’s
interpretation could have unintended consequences for private
and parochial schools that operate on a different calendar year
than their respective public school district. To the extent that
§ 79-201(2) is ambiguous whether a child must be enrolled
and attending a legally recognized school until the State rec-
ognizes an exempt private school, we construe that ambiguity
against the State.
Furthermore, the Department’s regulations do not require
parents to ensure that their child attends a legally recognized
school each day of the public school year. Neb. Rev. Stat.
§ 79-318(5)(c) (Cum. Supp. 2010) authorizes the Department
to establish the standards and procedures for exempt schools
under § 79-1601. The Department’s chapter 13 regulations—
for exempt schools established because of a parent’s religious
objections to the State’s accreditation requirements—define a
“school year” as “the period of instruction between July 1 and
the following June 30.”16 But nothing in Nebraska’s statutes or
15
Liddell-Toney v. Department of Health & Human Servs., 281 Neb. 532,
797 N.W.2d 28 (2011).
16
92 Neb. Admin. Code, ch. 13, § 002.04.
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STATE v. THACKER 25
Cite as 286 Neb. 16regulations sets a deadline for the filing requirement in the first
year of an exempt school’s operation.
It is true that § 79-1601(6) clarifies that if a school fails to
comply with the exemption procedures, there could be criminal
consequences for a child’s parent or legal guardian:
Any school which elects not to meet state accreditation
or approval requirements and does not meet the require-
ments of subsections (2) through (6) of this section
shall not be deemed a school for purposes of section
79-201, and the parents or legal guardians of any stu-
dents attending such school shall be subject to prosecu-
tion pursuant to such section or any statutes relating to
habitual truancy.
But neither Nebraska’s statutes nor the Department’s regu-
lations set out a deadline for an exempt school to begin
operations. The regulations require only that a notarized state-
ment from an exempt school’s parent representative be filed
“[t]hirty days prior to the date on which the exempt school is
to begin operation, and annually thereafter by July 15 . . . .”17
So although the regulations set a filing deadline for an exempt
school’s second year of operation, they conspicuously omit a
filing deadline for the first year.
The only timing requirement for an exempt school’s calen-
dar year is imposed by the Department’s regulations for mini-
mal instruction hours:
Prior to the date that the exempt school begins opera-
tion, and annually thereafter by July 15, the parent rep-
resentative will submit to the Commissioner or designee
the following:
004.01 A calendar for the school year indicating
a minimum instruction of 1,080 hours in secondary
schools and 1,032 hours in elementary schools. During
the first year of operation, the days of instruction may
be prorated based upon the remaining balance of the
school year.18
17
Id., § 003.02A.
18
Id., § 004.
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[9] Arguably, the regulation’s reference to prorating days
of instruction could be read to imply that the student has
already completed some days of instruction. As stated,
§ 79-318(5)(c) authorizes the Department to establish the stan-
dards and procedures for exempt schools. But we will not
interpret the Department’s regulations to impose a requirement
that carries criminal consequences when that requirement is
not clearly imposed under the governing statute. So the district
court correctly determined that under § 79-201(2), an exempt
school’s ability to complete the minimum instruction hours is
the only timing requirement imposed upon an exempt school’s
calendar year.
We recognize that at some point in the school year, an
exempt homeschool would begin operations too late. That
is, it could not reasonably prorate the required instructional
hours in the remaining days if the students had not previ-
ously completed some instruction hours in a legally recognized
school. But we need not decide when in the school year that
point occurs. Here, the county court specifically found that
the Thackers could complete the required instructional hours
in the school year. Because the State did not show that the
Thackers could not meet the only timing requirement imposed
on their homeschool’s operation, the district court correctly
reversed the county court’s decisions and remanded the causes
with instructions for the county court to vacate the convictions
and sentences.
Exceptions overruled.
McCormack, J., participating on briefs.