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Commonwealth v. Kerstetter

Supreme Court of Pennsylvania

June 16, 2014


Argued November 19, 2013

Appeal from the order of the Commonwealth Court dated February 19, 2013 at No. 1446 CD 2012, which Affirmed/Remanded the order of the Snyder County Court of Common Pleas, Criminal Division, dated June 29, 2012 at Nos. CP-55-SA-0000009-2012, CP-55-SA-0000010-2012, and CP-55-SA-0000011-2012. August 22, 2013 at 205 MAL 2013 CP-55-SA-0000009-2012. Michael H. Sholley, President Judge, Bernard L. McGinley, Judge, Robert E. Simpson, Judge, Rochelle S. Friedman, Senior Judge.

For Home School Legal Defense Association, AMICUS CURIAE: Darren A. Jones, Esq., James R. Mason III, Esq., Home School Legal Defense Association; Richard Winkler, Esq., Butcher & Winkler.

For Jennifer Ann Kerstetter, APPELLANT: Patrick Adam Johnson, Esq., Snyder County Public Defender's Office.

For Commonwealth of Pennsylvania, APPELLEE: Michael F. J. Piecuch, Esq.



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This appeal concerns whether the Pennsylvania School Code's compulsory school age and attendance provisions (24 P.S. § § 13-1326

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& 13-1327) apply to children under eight years old whose parents voluntarily enroll them in public kindergarten programs made available by school districts. The trial court and Commonwealth Court both held that once a child who meets a district's minimum entrance age is enrolled in a district's public school kindergarten program, the child is subject to compulsory school attendance, meaning continuous and consistent attendance without excessive unexcused absences. We affirm.

By way of background, Article V of the School Code (addressing " Duties and Powers of Boards of School Directors" ) requires every school district to " establish, equip, furnish, and maintain a sufficient number of elementary public schools, in compliance with the provisions of this act, to educate every person, residing in such district, between the ages of six and twenty-one years, who may attend." 24 P.S. § 5-501(a). The same article makes clear that school districts are not required to establish kindergarten programs, although they may do so as a matter of discretion, and if a district establishes such a program, it " shall be an integral part of the elementary school system of the district, and be kept open for not less than two and one-half hours each day for the full school term . . . ." Id. § 5-503.[1]

Appellant enrolled her twin five-year-old daughters in the 2011-12 school year kindergarten program at West Beaver Elementary School, which is part of the Midd-West School District (" District" ) in Snyder County.[2] For reasons not entirely made clear in the record, appellant had difficulty getting the children to kindergarten consistently; at least three unexcused documented absences occurred in November and December 2011. The absences were reported to the District and in January 2012, appellant was issued summonses for three violations of the School Code's compulsory school attendance provision at 24 P.S. § 13-1327.[3] After a summary trial on February 3, 2012, a magisterial district judge found appellant guilty of all three counts; a fine, costs, and fees were imposed upon appellant for each count. On February 28, 2012, appellant filed a summary appeal with the Snyder County Court of Common Pleas, which scheduled a hearing, or trial de novo, for May 8, 2012.

At that proceeding, the court initially noted that since the charges carried no

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risk of incarceration, appellant was not entitled to court-appointed counsel; appellant then entered a plea of not guilty. David Harrison, principal of the elementary school and an administrator with the District, testified that the District followed the Pennsylvania School Code of 1949 and maintained a compliant written policy that set forth lawful excuses for absences and advised that parents/guardians had a three-day grace period after an absence to provide a proper excuse. Harrison testified that appellant had never to his knowledge provided the school with legitimate excuses for her daughters' absences. Harrison said that a school counselor had spoken with appellant to discuss her difficulty getting her daughters to school, but he was not aware of any concrete reason (such as transportation issues) why the children could not attend school consistently. N.T., 5/8/12, at 5-13.

Appellant testified that at the time of the absences in question, she had just regained custody of the girls after a period they spent away from her under supervision of the local Children and Youth Services (" CYS" ). The record does not explain the length of time or reason why the children were with CYS. According to appellant, the children " acted out" in the mornings and refused to get dressed; she thought the girls were anxious about school and being away from her, even for the day. Appellant testified that she spoke with a school counselor and asked for help, but was refused. Appellant added that she learned from a " Pennsylvania State Education website" that children in kindergarten were not subject to truancy citations; rather, she understood it to mean that " [o]nly students of compulsory school age, which is first grade, age 8, can be cited." N.T., 5/8/12, at 13-19.

The court took a short recess for the parties to research the online information appellant had relied upon. When proceedings resumed, the prosecutor noted that he found " one thing that's extremely confusing." According to the prosecutor, the Unified Judicial System (" UJS" ) website's recitation of Purdon's Pennsylvania Statutes mirrored the definition of " compulsory school age" in the School Code's attendance enforcement provisions: " the period of a child's life from the time the child's parents elect to have the child enter school, which shall be not later than at the age of eight (8) years, until the age of seventeen (17) years." 24 P.S. § 13-1326 (" Enforcing Attendance: Definitions" ). But, the prosecutor further noted, the entry for " compulsory school age" on the Department of Education's website, to which appellant had adverted, also included the term " beginner," which is defined in a different section of Article 13 of the School Code as: " any child that should enter the lowest grade of the primary school or the lowest primary class above the kindergarten level." 24 P.S. § 13-1304(c) (" Admission: Admission of Beginners" ). The prosecutor concluded: " If that's correct, [appellant] is absolutely correct, that a child who is enrolled in kindergarten is not of compulsory school age." N.T., 5/8/12, at 19-20.

Neither the prosecutor nor Principal Harrison were able to explain the potential discrepancy or relationship between " compulsory school age" and " beginner." The prosecutor suggested that because providing kindergarten is optional for school districts in Pennsylvania, perhaps districts cannot compel children's attendance at kindergarten. At that point, the prosecutor stated: " I think that [appellant], in fairness, without me being her attorney, has a colorable argument here." The court, unable to resolve what it described as a " perplexing question" without further advocacy, continued the matter and appointed the county public defender to represent

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appellant; the parties were to prepare memoranda addressing " compulsory school age" and " beginner" under the School Code. N.T., 5/8/12, at 20-29.

At a further hearing on June 29, 2012, the trial court observed that the Department of Education's regulations commingle the terms " beginner" and " compulsory school age," despite their evident inconsistency. Reading from the Department's regulations at 22 Pa. Code § 11.13, the court stated: " [C]ompulsory school age refers to the period of the child's life from the time the child enters school as a beginner, which may be no later than at the age of 8 years, until the age of 17 or graduation from a high school, whichever first occurs. A beginner is a child who enters a school district's lowest elementary grade -- elementary school grade that is above kindergarten." According to the court, the Department's regulation improperly modified the Code's statutory definition of " compulsory school age" by importing " beginner" into it. As a practical matter, the court added, the Department's regulation required that school districts enroll children upon a parent or guardian's election, but then improperly prevented districts from compelling kindergarten attendance, which could result in " kindergarten classes from no one up to the full enrollment or anything in between with no way of structuring an educational program." The court doubted that the General Assembly intended to create such a practical dilemma for school districts, and concluded that the Department's regulation was an impermissible modification of legislation, which could not be given legal effect. Thus, under Section 13-1327 of the School Code, the trial court concluded that once appellant enrolled her children in kindergarten, they were de facto of " compulsory school age," and therefore subject to the compulsory school attendance requirement. N.T., 6/29/12, at 2-7.

Appellant's counsel orally moved to dismiss the charges. While denying the motion, the trial court recognized that the issue was problematic, and that it could potentially affect school districts across the Commonwealth; the court therefore determined that an interlocutory appeal to the Commonwealth Court would be appropriate. N.T., 6/29/12, at 10-13. In an order on the same date, the court formally denied appellant's motion to dismiss, but deemed the matter continued in expectation of appellant's appeal to the Commonwealth Court. Appellant (represented by the same counsel, but in a private capacity and no longer as public defender) timely filed a petition seeking to certify the matter for interlocutory appeal, which the trial court granted in an order dated July 30, 2012. The Commonwealth Court accepted the appeal in an order dated August 21, 2012, and stayed proceedings at the trial court level pending the appeal.

In its Pa.R.A.P. 1925(a) opinion on the merits, the trial court noted that the apparent " audiences" of the two School Code sections at issue differed. According to the court, Section 13-1327 (" compulsory school age" ) directs and instructs parents and students on compulsory attendance, while Section 13-1304 guides school districts in developing legally compliant admissions policies and programs. The court concluded that despite the confusion wrought by inclusion of the term " beginner" in the Department's regulation on compulsory school age, the General Assembly clearly intended that once a parent or guardian enrolls a child in public school, including kindergarten if it is available, the child must attend consistently, subject to the Code's compulsory attendance provisions. Trial Ct. Op., 9/20/12, at 1-3.

As a matter of public policy and practicality, the trial ...

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