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Blake v. Commonwealth

Supreme Court of Virginia

October 31, 2014




Page 106


[288 Va. 379] Present: All the Justices

In this appeal we consider whether Code § 22.1-254, requiring compulsory school attendance, can be used to prosecute parents or guardians whose children are tardy for school. For the reasons stated below, we conclude that it cannot.

I. Facts and Proceedings

Maureen Anne Blake was convicted by the Circuit Court of Loudoun County of three counts of a Class 3 misdemeanor under Code § 22.1-263, enforcing Code § 22.1-254, Virginia's compulsory school attendance law, for failing to ensure that her children arrived at school in a timely manner.

Blake is a divorced mother of three minor children, ages 8, 10, and 11. She shares joint custody with her ex-husband. She has custody of the children on Wednesday nights and is responsible for transporting the children to school on Thursday mornings. From September 15, 2011 through January 19, 2012, the period charged in the warrants brought against Blake, the children were repeatedly tardy to school on Thursdays. Within the time period of the warrants, the children were tardy two of the three Thursdays in September, two of the four Thursdays in October, one of the three Thursdays in which school was in session in November, all three Thursdays that school was in session in December, and two of the three Thursdays in January.[1] The tardiness generally ranged from five to twenty minutes in length.

The tardiness of the children on Thursdays was universally marked as unexcused. The children's record showed no other unexcused tardiness. The school's attendance officer sent the defendant a letter on [288 Va. 380] November 3, 2011, containing language attempting to convey defendant's duty to send the children to school on time.[2] Blake indicated in a December conference with the attendance officer that she and one of her children had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and that one of her other children was currently being tested. Blake stated that some of the tardiness was attributable to the ADHD, either due to behavioral problems on the part of the children or due to Blake's own ADHD, for which she was getting treatment. It was determined by the school that none of the reasons proffered were sufficient to mark the tardies as " excused."

Blake was prosecuted under Code § § 22.1-254 and -263. The circuit court heard the

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case on appeal from convictions in the Loudoun County Juvenile and Domestic Relations Court, and convicted her of three Class 3 misdemeanors, one per child. Each misdemeanor was based on five instances of tardiness, from December 1, 2011 to January 19, 2012 (the period after the circuit court found effective notice by means of the November letter but still within the warrant period).

Blake appealed to the Court of Appeals of Virginia, seeking review as to whether Code § 22.1-254(A) could be applied to prosecute tardiness when a child was otherwise enrolled in and regularly attending school. A divided panel of the Court of Appeals affirmed her convictions in an unpublished opinion. Blake v. Commonwealth, Record No. 1751-12-4, (November 19, 2013). Defendant sought a rehearing en banc, but her petition was denied. Blake then appealed to this Court, and we granted review as an issue of significant precedential value under Code § 17.1-410(B).

II. Analysis

The dispositive threshold issue in this case is whether Code § 22.1-254(A) can be construed in a manner that encompasses tardiness. If Code § 22.1-254(A) cannot be so construed, Blake cannot be prosecuted under this Code section and the rest of the assignments of error in this case are rendered moot. See, e.g., DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 142, 670 S.E.2d 704, 705 n.* (2009) (addressing only one assignment of error that is dispositive).

[288 Va. 381] A. Standard of Review

Whether Code § 22.1-254(A) should be construed as applicable to tardiness is a question of statutory interpretation; it therefore " 'presents a pure question of law and is accordingly subject to de novo review by this Court.'" Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)). While we view the facts in the light most favorable to the prevailing party below, in this instance, the Commonwealth, see Perry v. Commonwealth, 280 Va. 572, 578, 701 S.E.2d 431, 435 (2010), we will nonetheless review de novo the scope and application of the statute under which the defendant was convicted. See Findlay v. Commonwealth, 287 Va. 111, 114, 752 S.E.2d 868, 870 (2014); Covel v. Town of Vienna, 280 Va. 151, 158, 165, 694 S.E.2d 609, 613, 616-17 (2010); Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31 (2005)(" the legal viability of the Commonwealth's theories" for imposing guilt under a statute reviewed de novo).

B. Definition of " Send" in Code § 22.1-254(A)

1. The Term " Send" in Code § 22.1-254(A) is Ambiguous

" When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (internal quotation marks omitted)). To best ascertain that intent, " '[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language.'" Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)).

To determine whether language is ambiguous, we must consider whether " the text can be understood in more than one way or refers to two or more things simultaneously [or] whe[ther] the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness." Boynton v. Kilgore, 271 Va. 220, 227 n.8, 623 S.E.2d 922, 926 n.8 (2006) (citation and internal quotation marks omitted).

[288 Va. 382] Code § 22.1-254(A) reads as follows:

Except as otherwise provided in this article, every parent, guardian, or other person in the Commonwealth having control or charge of any child who will have reached the fifth birthday on or before September 30 of any school year and who has not passed the eighteenth birthday

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shall, during the period of each year the public schools are in session and for the same number of days and hours per day as the public schools, send such child to a public school or to a private, denominational, or parochial school or have such child taught by a tutor or teacher of qualifications prescribed by the Board of Education and approved by the division superintendent, or provide for home instruction of such child as described in § 22.1-254.1.

(Emphasis added.)

The word " send" has a variety of different definitions, but to determine whether it is ambiguous, we must consider the term in context. " 'A statute is not to be construed by singling out a particular phrase.'" Eberhardt v. Fairfax Cnty. Employees' Retirement Sys. Bd. of Trustees, 283 Va. 190, 195, 721 S.E.2d 524, 526 (2012) (quoting Virginia Elec. & Power Co. v. ...

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