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State v. Thacker

Supreme Court of Nebraska

May 31, 2013

State of Nebraska, appellant,
v.
Eric C. Thacker, appellee. State of Nebraska, appellant,
v.
Gail L. Morgan-Thacker, appellee.

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.

[286 Neb. 17] 5. 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 calendar 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, PC, 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 compulsory 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 [286 Neb. 18] 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 ยง 79-201 did not criminalize the Thackers' failure to enroll their children in a legally recognized school pending the State's recognition of their ...


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