Opinion
No. 6-133 / 05-0838
Filed March 29, 2006
Appeal from the Iowa District Court for Hancock County, Gerald W. Magee, Associate Juvenile Judge.
A minor child appeals from his simple misdemeanor conviction for violation of a truancy mediation agreement. REVERSED AND REMANDED.
Katherine Evans, Office of the Public Defender, Mason City, for appellant minor child.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Karen Salic, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Appellant fourteen-year-old Jeff had poor school attendance. To find and address Jeff's problems, mediation under Iowa Code section 299.5A was held. A Truant Mediation Agreement was reached in an attempt to assure Jeff's attendance at school. Jeff violated the agreement. A petition was filed in juvenile court and the judge found Jeff committed a simple misdemeanor in violation of Iowa Code section 299.6 (2005). On appeal, Jeff contends (1) he was denied his due process right to confront a witness, and (2) there was not sufficient evidence to support his conviction under Iowa Code section 299.6. We reverse and remand for dismissal.
MOTION TO DISMISS. The State initially filed a motion with the Iowa Supreme Court to dismiss this appeal, contending Jeff failed to exhaust his appellate remedies before appealing to the supreme court. The State's position was that Jeff was convicted of a misdemeanor, consequently his appeal needed to be made to the district court within ten days of the juvenile court decision. In making this argument the State relied on Iowa Rules of Criminal Procedure 2.51 through 2.75. This section of the criminal rules provides that the rules "apply to trials of simple misdemeanors, and attendant proceedings and to appeals from convictions in such cases." Iowa R. Crim P. 2.51. Appeals of simple misdemeanors are addressed by rule 2.73, which provides, among other things, that an appeal must be filed not later than ten days after judgment and the appeal shall be decided by a district court judge or a different district associate judge than initially heard the case.
Jeff replied to the State's challenge, noting this matter was tried in juvenile court and was not subject to the rules of criminal procedure.
In the State's brief it changed its position, recognizing that under Iowa Code section 602.7103(2) parties "are entitled to appeal" from rulings of associate juvenile judges "in the manner of" appeals from rulings of district court judges. See In re C.W.R., 518 N.W.2d 780, 781-82 (Iowa 1994). On this basis the State agrees the supreme court had jurisdiction.
We agree the supreme court had jurisdiction, which jurisdiction has now been transferred to us. The Iowa Rules of Criminal Procedure have been found not to be applicable in juvenile court. See State v. Harriman, 513 N.W.2d 725, 726 (Iowa 1994). And in addition, as the State points out, Iowa Code section 602.7103 provides for appeal to the Iowa Supreme Court of this case. We therefore proceed to consider this appeal.
Iowa Code section 602.7013(2) provides:
The parties to a proceeding heard by an associate juvenile judge are entitled to appeal the order, finding, or decision of an associate juvenile judge, in the manner of an appeal from orders, findings, or decisions of district court judges. An appeal does not automatically stay the order, findings, or decision of an associate juvenile judge.
BACKGROUND. The State filed a petition in juvenile court contending that Jeff, who is fourteen years old, was a truant under Iowa Code section 299.8 for violating the terms of a mediation agreement. The State further alleged Jeff had committed a simple misdemeanor in violation of Iowa Code 299.1 and 299.6. The juvenile court adjudicated Jeff a delinquent child "for the delinquent act of violation of a Truancy Mediation Agreement pursuant to section 299.1 and 299.6 and 299.8, the Code."
There was no factual basis to find Jeff violated this section, which puts requirements on parents, guardians, or custodians to cause a child to attend school.
This section merely defines a "truant."
The court ordered Jeff to attend school regularly and meet with juvenile court services. A dispositional hearing was set for May 5, 2005.
Jeff filed a motion to expand the juvenile court's findings of fact, noting that the county attorney made a professional statement that Jeff signed the mediation agreement as required by Iowa Code 299.5A, and that because there was no right to cross-examine the county attorney, his right of confrontation was denied. He further complains that the professional statement was taken after the hearing was closed without reopening the evidence.
The court denied the motion, finding that the county attorney was subject to cross-examination but Jeff's right of confrontation was just not exercised.
At the dispositional hearing the judge determined Jeff remains a delinquent child within the meaning of Iowa Code chapter 232. The court found Jeff should remain in the custody of his mother, should cooperate with juvenile court services, and should attend school daily unless he had specified excuses. The order was filed on May 5, 2005. Jeff filed a notice of appeal with the Iowa Supreme Court on May 19.
RIGHT OF CONFRONTATION. Jeff first contends the court erred when it considered the county attorney's statement after the evidence was closed that Jeff had signed the mediation agreement, and he was denied his right to cross-examine her. There is no statement in the appellant's brief explaining how error was preserved on this issue. The State argues it was not. We agree with the State that a party alleging a constitutional violation in the progress of a trial ordinarily must show he or she lodged an appropriate objection at the earliest available opportunity in the progress of the case. State v. Gibb, 303 N.W.2d 673, 679 (Iowa 1981); State v. Paulsen, 293 N.W.2d 244, 247 (Iowa 1980); State v. Coffee, 182 N.W.2d 390, 395 (Iowa 1970); see State v. Pelelo, 247 N.W.2d 221, 225 (Iowa 1976).
The two pages of the mediation agreement that were admitted in evidence did not show either that Jeff attended the mediation or that he signed the agreement. The county attorney's professional statement was that Jeff had attended mediation and he had signed a third page of the agreement.
Here the statement that Jeff signed the agreement was not made to the court until the evidence was closed. Despite coming in after the evidence was closed, the court relied on the county attorney's statement in its findings. Jeff filed his motion challenging this evidence within seven days of the court's ruling. Jeff also argued because the record was not reopened to accept the statement, it should not have been considered by the judge. Because of our ruling we need not address this issue and decline to do so.
INSUFFICIENT EVIDENCE. Jeff next contends there was not sufficient evidence to adjudicate him a delinquent child under Iowa Code section 299.6. The State concedes that error was preserved on this issue as it involves statutory construction and implicates review for legal error. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005); In re S.J.D., 641 N.W.2d 794, 797 (Iowa 2002).
Iowa Code sections 299.1 through 299.24 deal with compulsory education. Section 299.1 provides that, with certain exceptions not applicable here, "the parent, guardian, or legal or actual custodian of a child who is of compulsory attendance age, shall cause the child to attend some public school, an accredited nonpublic school, or competent private instruction. . . ."
If the child is not attending school, the legislature has set up a plan for mediation to "find the cause for the child's absence and use every means available to the school to assure that the child does attend." Iowa Code § 299.5A.
Jeff argues it was not the intention of the legislature to provide criminal sanctions for a child who is truant, but rather that section 299.6 is intended to provide criminal sanctions for those adults responsible for seeing that Iowa children attend school. He contends he is not of an age to enter into a legally binding agreement and that any punishment he should receive for failing to attend school should be the responsibility of school administration. He also argues there is not evidence he was guilty under section 299.6 because for him to be guilty under section 299.6, the State was required to show two things: (1) he is a person in violation of the mediation agreement under section 299.5A, and (2) he is a person who can be referred for prosecution under section 299.5A. We agree with Jeff that section 299.5A does not provide a child can be referred for prosecution if he or she refuses to engage in mediation or violates the terms of the agreement.
Iowa Code Section 299.5A does provide: "the mediator may refer a truant to the juvenile court if mediation breaks down without an agreement being reached."
Section 299.5A provides:
If a child is truant as defined in section 299.8, school officers shall attempt to find the cause for the child's absence and use every means available to the school to assure that the child does attend. For a child who has completed educational requirements through the sixth grade, the means may include but are not limited to the use of an attendance cooperation process which substantially conforms with the provisions of section 299.12. If the parent, guardian, or legal or actual custodian, or child refuses to accept the school's attempt to assure the child's attendance or the school's attempt to assure the child's attendance is otherwise unsuccessful, the truancy officer shall refer the matter to the county attorney for mediation or prosecution.
. . . If the parties reach an agreement, the agreement shall be reduced to writing and signed by a school officer, parent, guardian, or legal or actual custodian, and the child. The mediator, the school, and the parent, guardian, or legal or actual custodian shall each receive a copy of the agreement, which shall set forth the settlement of the issues and future responsibilities of each party.
The school district shall be responsible for monitoring any agreements arrived at through mediation. If a parent, guardian, or legal or actual custodian refuses to engage in mediation or violates a term of the agreement, the matter shall be referred to the county attorney for prosecution under section 299.6. . . . The mediator may refer a truant to the juvenile court if mediation breaks down without an agreement being reached.
(Emphasis added.)
The State rejects Jeff's argument advancing that section 299.6 provides four separate alternatives by which a person can violate the statute and commit a simple misdemeanor: namely any person who (1) violates a mediation agreement under section 299.5A, (2) is referred for prosecution under section 299.5A and is convicted of a violation of any of the provisions of sections 299.1 through 299.5, (3) violates any of the provisions of sections 299.1 through 299.5, or (4) refuses to participate in mediation under section 299.5A. We agree with the State that section 299.6 provides four separate alternatives by which a person can violate the section and the State need only show a person is in violation of one of the four separate alternatives to convict.
Section 299.6 provides:
Any person who violates a mediation agreement under section 299.5A, who is referred for prosecution under section 299.5A and is convicted of a violation of any of the provisions of sections 299.1 through 299.5, who violates any of the provisions of sections 299.1 through 299.5, or who refuses to participate in mediation under section 299.5A, for a first offense, is guilty of a simple misdemeanor.
But can a child be found guilty under this section? Jeff argues and the State agrees that a preliminary question is whether children such as Jeff have the legal capacity to enter into and be bound by truancy mediation agreements. Jeff contends they do not. The State contends they do.
The State argues that the fact Jeff is not of legal age does not mean he does not have the legal capacity to enter into and become bound by the mediation agreement. The State advances that while the common law generally views minors as lacking the legal capacity to enter into contracts, the legislature has from time to time overridden the common law and established that minors may enter into certain kinds of contracts. Citing United States v. William, 302 U.S. 46, 49, 58 S. Ct. 81, 83, 82 L. Ed. 39, 42 (1937) (holding Congress provided that children over age fourteen have the legal capacity to enlist in the armed forces). The State argues that the Iowa legislature expressly or by implication empowered every student to participate in mediation and made the student a necessary party to the agreement by requiring his or her signature to be upon it. The State also argues that, either by express language or by necessary implication, the legislature had provided that Iowa students have the legal capacity to enter into and become bound by a mediation agreement. The State correctly argues section 299.5A requires the child to sign the agreement.
Jeff argues sections 299.5A and 299.6 are vague and ambiguous as to their application to minors. Jeff further contends that, looking at the corresponding statutes, it is clear the legislature intended to provide criminal sanctions for adult caretakers of truant children and it did not intend to subject children to criminal prosecution for failing to attend school. We agree with Jeff that the general theme of chapter 299 is to assure that custodians of children and public schools cooperate to see that children of our state receive a minimal level of education. 78A Corpus Juris Secundum Schools and School Districts § 740, at 383-84, notes that:
Under the compulsory education statutes, truancy is not equated with a major infraction of the law, nor is it regarded as criminal conduct, and such statutes may prohibit punitive action against the truant unless other resources have first been provided although under some statutes, parents, as persons in control of children who are truant, may be punished for violation of the truancy law.
Thus, in the absence of ordinance, bylaw, or statute creating the offense of truancy, a pupil who refuses or fails to attend school cannot be convicted therefore; but, under a statute defining the offense as a refusal by a pupil within certain ages to attend a public school and wandering about the streets and public places during school hours, a pupil within the statutory ages who commits the prohibited acts is guilty of the offense.
Do the statutes in question provide that a pupil who violates a mediation agreement is guilty of an offense? When the text of the statute is plain and its meaning clear, we do not search for a meaning beyond the statute's express terms or resort to rules of statutory construction. Henriksen v. Younglove Constr., 540 N.W.2d 254, 258 (Iowa 1995). It is only when there is ambiguity in the statute that we resort to such rules. Stroup v. Reno, 530 N.W.2d 441, 443 (Iowa 1995). We consider a statute ambiguous if reasonable minds could differ or be uncertain as to the meaning of it. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996).
Our ultimate goal in construing statutes is to find the true intention of the legislature. Iowa Dep't of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002); Bernau v. Iowa Dep't of Transp., 580 N.W.2d 757, 761 (Iowa 1998). If more than one statute is relevant, we consider the statutes together and try to harmonize them. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001).
The legislature is its own lexicographer. Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533 (Iowa 1981). So in searching for legislative intent, we are bound by what the legislature said, not by what it should or might have said. Krull v. Thermogas Co., 522 N.W.2d 607, 612 (Iowa 1994). Additionally, we are bound to follow the legislature's definitions and "may not add words or change terms under the guise of judicial construction." Iowa Beef Processors, 312 N.W.2d at 533. If the legislature has not defined words of a statute, we may refer to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage. Bernau, 580 N.W.2d at 761.
Because section 299.6 is penal in nature, we construe its terms strictly against the State. State v. Trucke, 410 N.W.2d 242, 243 (Iowa 1987); State v. Koplin, 402 N.W.2d 423, 425 (Iowa 1987); State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985).
It is clear that chapter 299 puts responsibility on specified caretakers to assure children's attendance at school and section 299.6 provides for criminal charges to be filed against those caretakers who do not.
But did the state legislature intend that (1) a child could agree to be bound by a mediation agreement and (2) the child be convicted of a misdemeanor for violating the agreement? We do not believe it did.
First, we look at the exclusion of the child from many of the directives with reference to mediation in section 299.5A. It does not include the child as a person who should get a notice of referral. It does not include the child as a person who should be contacted as to date of meeting and times of discussion. Perhaps most significantly, it does not include the child in specifying the persons "who shall be referred to the county attorney for prosecution under section 299.6" if they violate the agreement. It does provide the mediator can refer a truant to juvenile court if the mediation breaks down without an agreement being reached. This indicates the intent of the legislature at that point to handle the problems in juvenile court rather than subject the child to a criminal violation.
The State argues Jeff was fourteen and knew he had the responsibility to attend class and comply with the agreement. We do not necessarily disagree with this argument. However the legislature, in providing for mediation agreements, uses the word "child" and does not make separate provisions for children of different ages. And though section 299.5A does make provision for "an attendance cooperation process" for students who have completed sixth grade, that process was not used here and is not at issue.
However if the student were a six year old who had limited reading skills the situation would be different.
We cannot conclude the Iowa legislature specifically or by implication provided that children between the ages of six and sixteen have the legal capacity to enter into and become bound by mediation agreements and be subject to criminal offenses if they violate the agreement. Having concluded that, we have no other recourse than to reverse the juvenile court and remand this case for dismissal. If this is not the legislature's intention, it is the legislature that should correct it not the courts. We are bound by what the legislature said not what it should or might have said. Krull, 522 N.W. 2d at 612.