AGO 1980 No. 6 - Feb 8 1980
JUVENILE COURTS ‑- SCHOOLS ‑- TRUANCY ‑ ENFORCEMENT OF COMPULSORY SCHOOL ATTENDANCE LAW
In the enforcement of the state compulsory school attendance law as amended by chapter 201, Laws of 1979, 1st Ex. Sess., a juvenile court has only the limited jurisdiction (by virtue of § 2 of that act) to impose the non-criminal monetary penalty provided for in RCW 28A.27.100 as amended by § 6 of chapter 201, supra; however, assuming that this fine or penalty has been invoked in a given case and the juvenile in question fails to pay it, that juvenile may then be declared to be in contempt of court, whereupon the court will then have jurisdiction to deal with the child as a "juvenile offender" under the provisions of chapter 13.40 RCW.
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February 8, 1980
Honorable Don Herron
946 County-City Building
Tacoma, Washington 98402
Cite as: AGO 1980 No. 6
By letter previously acknowledged you requested our opinion on the following questions relating to the state compulsory school attendance law as amended by chapter 201, Laws of 1979, 1st Ex. Sess.:
"1. What jurisdiction may the juvenile court assume pursuant to Section 2 of Chap. 201, 1st Ex. Sess., Laws of 1979, when the action taken by a school district under Section 1 of the amendment, is not successful in substantially reducing the student's absences from school (truancy) and a petition is filed?
"2. If the juvenile court has jurisdiction, what type of custody, placement, or conditions may it order for a truant subject to its jurisdiction?
[[Orig. Op. Page 2]]
"3. Can the juvenile court only assume jurisdiction when a petition for 'neglect' is filed and 'truancy' is named as a supporting basis with other factors? . . .
"4. Can juvenile court, when assuming jurisdiction based solely upon a "truancy" petition, render a judgment for a monetary fine of $25 for each day of unexcused absence as provided in RCW 28A.27.100 as amended?
"5. Is the fine provided in RCW 28A.27.100 as amended a criminal fine? And can the juvenile court enforce sanctions for non-payment of the . . . fine when the judgment is against the juvenile personally and not his parents?"
We answer your first two questions as set forth in our analysis, question (3) in the negative, question (4) in the affirmative, the first part of question (5) in the negative and the remainder of that question in the affirmative.
In order to place your questions in perspective we should, at the outset, briefly examine the history of truancy as a basis for juvenile court jurisdiction. Previously, "habitual truants" were specifically included within the jurisdiction of the juvenile courts as a category of "dependent children."1/ An habitual truant was defined by RCW 28A.27.070 as:
[[Orig. Op. Page 3]]
". . . one who absents himself with frequency from the school he is required to attend . . ."
Additionally, that statute permitted attendance officers and others authorized to make arrests to take a truant into custody and deliver him or her to a juvenile probation officer for juvenile court proceedings.2/
In 1977, however, both the juvenile court law and the compulsory attendance law were amended to remove truants from the juvenile court system, effective July 1, 1978. The jurisdictional section of the juvenile court law, RCW 13.04.010, was repealed3/ and replaced with amended RCW 13.04.030 which [[Orig. Op. Page 4]] does not include truancy as a basis for juvenile court jurisdiction.4/ Also, RCW 28A.27.070 was amended to delete the prior language providing for the delivery of a truant to juvenile authorities.5/ Furthermore, the term "juvenile offender" as now defined by RCW 13.04.011(2) does not include truants and the term "juvenile offenses," defined in the same section, does not include truancy.
Similarly, no juvenile court jurisdiction over truants exists under the new Juvenile Justice Act of 1977,6/ now codified in chapter 13.40 RCW. Jurisdiction under that act is premised upon the commission of an "offense" by a juvenile.7/ An "offense" is defined by RCW 13.40.020(14) as:
". . . an act designated a violation or a crime if committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state;"
In turn, RCW 13.40.020(20) defines "violation" as:
". . . an act or omission, which if committed by an adult, must be proven beyond a reasonable doubt, and is punishable by sanctions which do not include incarceration."
A juvenile who deliberately misses school does not thereby commit an "act designated a violation or a crime if committed by an adult" under state law for the simple reason that adults are not required to attend school. Only children between the ages of eight and eighteen, with certain exceptions, [[Orig. Op. Page 5]] fall within the purview of the compulsory attendance statute, RCW 28A.27.010, the pertinent provisions of which read as follows:
"All parents, guardians and the persons in this state having custody of any child eight years of age and under fifteen years of age shall cause such child to attend the public school of the district in which the child resides for the full time when such school may be in session or to attend a private school for the same time . . .
"All parents, guardians and other persons in this state having custody of any child fifteen years of age and under eighteen years of age shall cause such child to attend the public school of the district in which the child resides for the full time when such school may be in session or to attend a private school for the same time excepting when . . . the child is regularly and lawfully engaged in a useful or remunerative occupation, . . ."
It will also be noted that the express duty imposed by this law falls upon the parents or guardians to cause school attendance, rather than upon the child to attend. Nevertheless, other sections of chapter 28A.27 RCW recognize a companion duty on the part of the child of compulsory school age to attend school. Thus, the opening sentence of RCW 28A.27.070, supra, provides:
"Any attendance officer, sheriff, deputy sheriff, marshal, policeman, or any other officer authorized to make arrests, shall take into custody without a warrant a childwho is required under the provisions of RCW 28A.27.010 through 28A.27.130 to attend school, such child then being a truant from instruction at the school which he islawfully required to attend, . . ." (Emphasis supplied).8/
[[Orig. Op. Page 6]]
We now turn to the 1979 legislation referred to in your question. It was against this historical backdrop that chapter 201, Laws of 1979, 1st Ex. Sess., was enacted. By § 1 of that act, the legislature provided as follows:
"If a juvenile required to attend school under the laws of the state of Washington fails to attend school without valid justification recurrently or for an extended period of time, the juvenile's school, where appropriate, shall:
"(1) Inform the juvenile's custodial parent, parents or guardian by a notice in writing in English and, if different, in the primary language of the custodial parent, parents or guardian and by other means reasonably necessary to achieve notice of the fact that the juvenile has failed to attend school without valid justification recurrently or for an extended period of time;
"(2) Schedule a conference or conferences with the custodial parent, parents or guardian and juvenile at a time and place reasonably convenient for all persons included for the purpose of analyzing the causes of the juvenile's absences; and
"(3) Take steps to eliminate or reduce the juvenile's absences, including, where appropriate, adjusting the juvenile's school program or school or course assignment or assisting the parent or student to obtain supplementary services that might eliminate or ameliorate the cause or causes for the absence from school."
And then, by § 2, the legislature provided that:
"If action taken by a school pursuant to section 1 of this act is not successful in substantially reducing a student's absences from school, the attendance officer of the school district through its attorney may petition the juvenile court to assume jurisdiction under this chapter for the purpose of alleging a violation of RCW 28A.27.010. If the court assumes jurisdiction in such an instance, the provisions of this chapter, except where otherwise stated, shall apply."
[[Orig. Op. Page 7]]
Your first question refers to this last quoted section of the 1979 juvenile truancy law and asks:
"What jurisdiction may the juvenile court assume pursuant to Section 2 of Chap. 201, 1st Ex. Sess., Laws of 1979, when the action taken by a school district under Section 1 of the amendment, is not successful in substantially reducing the student's absences from school (truancy) and a petition is filed?"
Clearly, the basic function of § 2, chapter 201, supra, is to revest the juvenile court with jurisdiction over truants, per se, although not necessarily the same jurisdiction as those courts had over truants as "dependent" children under the law prior to July 1, 1978. Furthermore, the jurisdiction which juvenile courts now have is concurrent with the jurisdiction of the courts enumerated in RCW 28A.27.120, a later section of the compulsory attendance law, which provides as follows:
"In cases arising under RCW 28A.27.010 through 28A.27.130 all justices' courts, justice courts, municipal courts or departments and superior courts in the state of Washington shall have concurrent jurisdiction."
But juvenile courts, as such, do not have jurisdiction over adults to enforce the compulsory attendance law for the second paragraph of RCW 28A.27.100 provides that:
"Attendance officers shall make complaint for violation of the provisions of RCW 28A.27.010 through 28A.27.130 by any person eighteen years of age or over to a justice of the peace, justice court judge or to a judge of the superior court." (Emphasis supplied)
Likewise, a juvenile court can only assume jurisdiction, under § 2,supra, for the limited purpose of enforcing the compulsory school attendance requirements of RCW 28A.27.010, supra.
Your next question asks:
[[Orig. Op. Page 8]]
"If the juvenile court has jurisdiction, what type of custody, placement, or conditions may it order for a truant subject to its jurisdiction?"
As explained above, the juvenile court no longer has general jurisdiction over truants per se. The jurisdiction which such a court now has pursuant to § 2, chapter 201,supra, is simply to enforce the provisions of chapter 28A.27 RCW. The penalty provision of that chapter is contained in the first paragraph of RCW 28A.27.100 which, as amended by § 6, chapter 201, Laws of 1979, 1st Ex. Sess., reads as follows:
"Any person violating any of the provisions of either RCW 28A.27.010 or 28A.27.090 shall be fined not more than twenty-five dollars for each day of unexcused absence from school. It shall be a defense for a person charged with violating RCW 28A.27.010 to show that he or she exercised reasonable diligence in attempting to cause a child in his or her custody to attend school or that the juvenile's school did not perform its duties as required in section one of this act. Any fine imposed pursuant to this section may be suspended upon the condition that a person charged with violating RCW 28A.27.010 shall participate with the school and the juvenile in a supervised plan for the juvenile's attendance at school or upon condition that the person attend a conference or conferences scheduled by a school for the purpose of analyzing the causes of a child's absence."
This, then, is the extent of the sanctions that can be imposed by a juvenile court which assumes jurisdiction under § 2, chapter 201, supra.
Your third question inquires as follows:
"Can the juvenile court only assume jurisdiction when a petition for 'neglect' is filed and 'truancy' is named as a supporting basis with other factors? . . ."
[[Orig. Op. Page 9]]
In posing this question, you have cited § 3, chapter 201, Laws of 1979, 1st Ex. Sess., which added the following new section to chapter 13.34 RCW and not, notably, to the compulsory attendance law, chapter 28A.27 RCW:
"The legislature finds that it is the responsibility of the custodial parent, parents or guardian to ensure that children within the custody of such individuals attend school as provided for by law. To this end, while a parent's failure to cause a juvenile to attend school should not alone provide a basis for a neglect petition against the parent or guardian, when a neglect petition is filed on the basis of other evidence, a parent or guardian's failure to take reasonable steps to ensure that the juvenile attends school may be used as evidence with respect to the question of the appropriate disposition of a neglect petition."
A neglect petition under chapter 13.34 RCW, however, constitutes a separate and independent basis for superior court (or juvenile court) jurisdiction aimed, ultimately, at depriving a neglectful parent or guardian of custody of his or her child or, even, terminating the parent-child relationship. See, RCW 13.34.180,et seq.. The jurisdictional basis will be found in RCW 13.04.030(2) which grants exclusive original jurisdiction to juvenile courts over children alleged or found to be dependent. But a second basis of juvenile court jurisdiction is that now provided for by § 2, chapter 201,supra. We, therefore, answer your third question in the negative.
Your fourth question asks:
"Can juvenile court, when assuming jurisdiction based solely upon a 'truancy' petition, render a judgment for a monetary fine of $25 for each day of unexcused absence as provided in RCW 28A.27.100 as amended?"
This question is answerable in the affirmative. As noted in our answer to question (2), when a juvenile court assumes jurisdiction pursuant to § 2, chapter 201,supra, the provisions of chapter 28A.27 RCW apply. One of those provisions is RCW 28A.27.100, supra, which states in part:
[[Orig. Op. Page 10]]
"Any person violating . . . RCW 28A.27.010 . . . shall be fined not more than twenty-five dollars for each day of unexcused absence from school. . . ."
Thus, a maximum fine of twenty-five dollars for each day of unexcused absence may be imposed upon the truant if he or she has refused to attend school in violation of the requirement to do so under RCW 28A.27.010. That fine, however, may only be levied after attempts to modify the truant's school program under § 1, chapter 201,supra, have failed, for such a failure is a prerequisite to assumption of jurisdiction by a juvenile court pursuant to § 2, chapter 201,supra.
Finally, you have asked:
"Is the fine provided in RCW 28A.27.100 as amended a criminal fine? And can the juvenile court enforce sanctions for non-payment of the . . . fine when the judgment is against the juvenile personally and not his parents?"
We answer the first part of this question in the negative. As quoted above in our response to questions (2) and (4), RCW 28A.27.100 provides only for a fine, without any further penalty. A crime, however, is defined in RCW 9A.04.040(1):
"An offense defined by this title or by any other statute of this state, for which a sentence of imprisonment is authorized, constitutes a crime. . . ."
Therefore, since no imprisonment is authorized by RCW 28A.27.100, the fine it imposes should not be considered to be a criminal fine. Accord,South Carolina State Highway Dept. v. Southern Railway Co., 239 S.C. 227, 122 S.E.2d 422 (1961), wherein the Supreme Court of South Carolina similarly construed a statute imposing a fine without further sanctions to be a civil penalty, rather than a criminal fine (see 122 S.E.2d at 424).
The definitions of "fine" and "penalty" also demonstrate that the sanction imposed by RCW 28A.27.100 is of civil rather than a criminal nature. Although no Washington cases exist on this point, a California case has defined the two terms as follows:
[[Orig. Op. Page 11]]
". . . A fine is a pecuniary punishment imposed on a person convicted of a criminal offense. . . . A penalty, is, at times, a punishment for the performance of an unlawful act. . . . Legislatures frequently use the term 'fine' and the term 'penalty' synonymously. . . ." Sawyer v. Barbour, 142 Cal.App.2d 827, 300 P.2d 187, 191 (1956) (Citations omitted).
Thus, strictly speaking, a fine is imposed upon one convicted of a crime while a penalty is imposed for an unlawful act which is not a crime. Here, the fine provided in RCW 28A.27.100 may be imposed for violation of RCW 28A.27.010. But such a violation is not a criminal offense since no provision for imprisonment is made in the penalty section. And a court enforcing chapter 28A.27 RCW cannot impose any sanction upon a violator other than the maximum per violation fine of twenty-five dollars. However,
"A judgment imposing a fine, without any alternative, is equivalent to a civil money judgment, . . ." In re Fishman, 109 Cal.App.2d 634, 637, 241 P.2d 603, 604-605 (1952).
In the second part of your final question you have asked whether the juvenile court can enforce sanctions for nonpayment of the (civil) fine when the judgment is against the juvenile personally and not his or her parents. We answer this part of your question in the affirmative.
When and if a juvenile refuses to pay the civil fine lawfully mandated by a court pursuant to RCW 28A.27.100, that juvenile will be subject to a contempt order since contempt of court includes "disobedience of any lawful judgment, decree, order or process of the court." RCW 7.20.010(5). Such a contempt can be punished by a fine or imprisonment, or both. RCW 7.20.020. Moreover, RCW 9.23.010 provides:
"Every person who shall commit a contempt of court of any one of the following kinds shall be guilty of a misdemeanor:
". . .
"(4) Wilful disobedience to the lawful process or mandate of a court; . . ."
[[Orig. Op. Page 12]]
Upon refusal to pay the fine, the juvenile will have committed contempt of court under RCW 7.20.010(5). That is an act designated by RCW 9.23.010(4) as a crime and would give a juvenile court full jurisdiction over the youth as an "offender,"9/ premised upon RCW 13.04.030(6), which provides in part:
"Thejuvenile courts in the several counties of this state, shall have exclusive original jurisdiction over all proceedings:
". . .
"(6)Relating to juveniles alleged or found to have committed offenses. . . as provided in RCW 13.40.020 through 13.40.230, as now or hereafter amended, unless:
"(a) The juvenile court transfers jurisdiction of a particular juvenile to adult criminal court . . .; or
"(b) The statute of limitations applicable to adult prosecution for the offense . . . has expired; . . .
". . ." (Emphasis supplied)
An "offense," as above noted, is defined by RCW 13.40.020(14) as ". . . an act designated a . . . crime if committed by an adult under the law of this state . . ." Note also, however, that this jurisdiction does not exist because the juvenile is a truant. Rather, is exists because he or she has now become a juvenile offender by virtue of the refusal to pay the fine imposed under RCW 28A.27.100.
And, therefore, the sanctions which the juvenile court could impose at this point for nonpayment of the fine would be those available under the Juvenile Justice Act of 1977, chapter 13.40 RCW. The basic sanctions are set forth at length in RCW 13.40.160. In addition, others are available which would include taking the youth into custody prior to a hearing in certain [[Orig. Op. Page 13]] circumstances;10/ imposing conditions to insure appearance of the child at the hearing;11/ entering into a diversion agreement, if appropriate;12/ and requiring restitution or community service.13/
We trust the foregoing will be of assistance to you.
Very truly yours,
RICHARD M. MONTECUCCO
Senior Assistant Attorney General
*** FOOTNOTES ***
1/See, former RCW 13.04.010, which provided that:
"This chapter . . . shall apply to all minor children under the age of eighteen years who are . . . dependent . . .
"For the purpose of this chapter the words 'dependent child' shall mean any child under the age of eighteen years:
". . .
"(9) Who is an habitual truant, as defined in the school laws of the state of Washington; . . .
". . ."
2/See, former RCW 28A.27.070, which provided in part:
"Any attendance officer, sheriff, deputy sheriff, marshal, policeman, or any other officer authorized to make arrests, shall take into custody without a warrant a child who is required under the provisions of RCW 28A.27.010 through 28A.27.130 to attend school, such child then being a truant from instruction at the school which he is lawfully required to attend, and shall forthwith deliver a child so detained either to the custody of a person in parental relation to the child or to the teacher from whom the child is then a truant, or, if after consulting the teacher or other school officials it appears such child be an habitual or incorrigible truant, shall deliver such child into the hands of a juvenile probation officer as provided for in chapter 13.04 RCW for such further action thereon as such officer shall determine under chapter 13.04 RCW. . . ." (Emphasis supplied)
3/See § 81, chapter 291, Laws of 1977, 1st Ex. Sess.
4/See, § 4, chapter 291, supra.
5/See, § 52, chapter 291, supra, striking the portion of RCW 28A.27.070 which we above underscored in footnote 2.
6/Sections 55-78, chapter 291, Laws of 1977, 1st Ex. Sess.
7/See, RCW 13.40.040(1)(a) and (b); RCW 13.40.070(1) and (3); and RCW 13.40.080(1).
8/See also, AGO 1927-28 at page 282, and also AGO 1945-46 at page 503, copies enclosed.
9/See RCW 13.40.020(14) and (20), supra.
10/See RCW 13.40.040 and 13.40.100(5).
11/See RCW 13.40.050(6).
12/See RCW 13.40.080.
13/See RCW 13.40.190(1).