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April 26, 1983


Appeal from a judgment of the Circuit Court for Iowa County, James P. Fiedler, Circuit Judge. On certification from Court of Appeals.

Shirley S. Abrahamson, J.

The opinion of the court was delivered by: Abrahamson

This is an appeal from a judgment of conviction of the circuit court for Iowa county, James P. Fiedler, Circuit Judge. The circuit court adJudged Laurence C. Popanz guilty on two counts of violating Wisconsin's compulsory school attendance law, sec. 118.15(1) (a), Stats. 1981-82. Sec. 118.15(1) (a), requires a person having control of a child who is between the ages of 6 and 18 years to cause the child to attend public or private school regularly. *fn1 Violation of the statute constitutes a misdemeanor. Sec. 118.15(5). *fn2 This court granted direct review of the judgment upon certification of the court of appeals. Secs. 808.05(2), 809.61.

The issue presented on certification is whether the phrase "private school" as used in sec. 118.15(1) (a) is impermissibly vague and sec. 118.15(1) (a) as applied to prosecutions involving "private schools" violates the fourteenth amendment to the United States Constitution and art. I, sec. 8, of the Wisconsin constitution. *fn3 For the reasons we set forth we conclude that the phrase "private school" as used in sec. 118.15(1) (a) is impermissibly vague and that sec. 118.15(1) (a) as applied to prosecutions involving private schools is unconstitutional. Accordingly we reverse the judgment of conviction and remand the cause to the circuit court with directions to dismiss the complaint.

The facts leading up to the conviction and the trial testimony can be stated briefly. In August of 1980, the defendant, Laurence C. Popanz, wrote to inform the district school administrator that he was a member of the Agency for the Church of the Free Thinker Inc., a Wisconsin corporation organized under ch. 181 of the Wisconsin Statutes, that the church administers "the Free Thinker School, a private school located in Avoca, Wisconsin," and that three of the students enrolled in the Free Thinker School had previously been enrolled in the district's public schools. All three students were the defendant's daughters. The charges in this case concern two of the defendant's daughters who attended the Free Thinker School. *fn4 The defendant requested the children's school records along with recommendations regarding curriculum and asked the district school administrator to inform the school attendance officer about the matter "so that we can be informed of anything we must do to be in compliance with the law."

The defendant's letter initiated a series of communications between the defendant and the district school administrator relating to listing nonpublic schools in a Wisconsin Department of Public Instruction publication entitled "Wisconsin Nonpublic School Directory." The district school administrator testified that before he would recognize the defendant's school as a "private school" for purposes of the compulsory school attendance law, he would require that the defendant's school be listed in the directory, even though there is no such requirement in the statutes or administrative regulations. The administrator testified that the listing requirement was a matter of his own "professional" standards.

The Chief of Information Services for the Department of Public Instruction, who is in charge of compiling the Wisconsin Nonpublic School Directory, testified that each district school administrator compiles the list of nonpublic schools in his or her district. In response to questioning seeking to ascertain whether the witness determined that the private schools adhered to any type of prescribed guidelines, he answered as follows:

"I do not. I collect the information and handle data. We do have a nonpublic school liaison person, Dr. Mildred Anderson, who counsels nonpublic schools, but I do not get involved in that and I'm sure there really are no official guidelines for nonpublic schools in the statutes."

The administrator testified that he personally needed to evaluate the schools to ensure that they comported with certain standards of which someone at the Department of Public Instruction had advised him orally, when the district administrator had consulted that person about another claimed private school. The standards the administrator claimed to use, or the questions he would ask, were as follows: Does the curriculum of the school provide sequential advancement of students? What are the facilities available? What are the educational backgrounds of the teachers? Are the instructional materials adequate? Is the time schedule consistent with that followed by the public schools? The administrator never asked these questions about the defendant's school because he never visited the school.

The defendant apparently took the position that he had made it clear to the administrator that his school was a private school because it complied with all of the Department of Public Instruction's requirements of which he had been advised; that if the district school administrator needed additional information to satisfy the administrator that the school was a private school, the defendant would supply the information on request; that if the administrator required a visit to the school, the administrator should so advise the defendant; and that the administrator had requested neither additional information nor a visit.

The circuit court concluded that the administrator of the school district had advised the defendant that when his school was ready for evaluation, the defendant should contact the administrator and that the administrator and a representative of the Department of Public Instruction would then visit the school to allow the administrator to evaluate the school. The circuit court further concluded that the defendant ignored the administrator's suggestion to request a personal visit in order to be listed in the directory, concluding that the defendant was involved in a "word contest" with the district school administrator.

In any event, neither the defendant nor the district school administrator requested that the defendant's school be visited to ascertain whether it could be characterized as a private school under sec. 118.15(1) (a). Because the defendant failed to request an evaluation, the administrator and the two school principals involved proceeded to comply with the statutory prerequisites to the institution of proceedings, sec. 118.16(5), Stats. 1981-82. *fn5 They then requested the district attorney for Iowa county to institute proceedings against the defendant pursuant to sec. 118.15(1) (a)5.

Even though the circuit court concluded that for the purposes of the compulsory school attendance law "the Wisconsin Statutes are singularly silent on the question of what constitutes a private school," it did not consider the constitutionality of the statute. *fn6 The circuit court found the defendant guilty because he failed to establish that he had caused his daughters to attend a private school. He was sentenced to two consecutive 90-day terms.

The defendant maintains on appeal that sec. 118.15(1) (a) is void for vagueness. The state reminds us that there is a strong presumption favoring the constitutionality of a legislative enactment *fn7 and that the court will construe the statute to preserve it if it is at all possible to do so. State ex rel. ...

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