Before Wagner, Chief Judge, Schwelb, Associate Judge, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (Hon. Herbert B. Dixon, Jr., Trial Judge)
Opinion for the court by Senior Judge Belson.
Concurring opinion by Associate Judge Schwelb at p. .
Joyce Brown was convicted, after a bench trial, of nine counts of violating the Compulsory School Attendance Act, D.C. Code § 31-402 (1995). On appeal, Ms. Brown argues that the statute is unconstitutional under the void for vagueness doctrine, and that the trial court abused its discretion by refusing to authorize defense counsel to engage the services of an expert child psychologist at government expense. We reject appellant's constitutional argument, but remand for entry of an order authorizing appellant's counsel to obtain the services of a child psychologist.
Joyce Brown was charged on December 1, 1995, with twelve counts of violating the Compulsory School Attendance Act. Ms. Brown's daughter, Lakia Jackson, had been absent for the entire 1994-95 school year with the exception of one day, and for all but nine or ten days out of the forty-two days before December 1, 1995, in the 1995-96 school year. Prior to trial, Ms. Brown filed an ex parte request for an order authorizing a psychological examination of both Lakia and Ms. Brown at the government's expense in order to investigate a potential defense. The motion cited a number of traumatic events that had befallen the Brown family from 1993 to 1995. These events included the separation of Ms. Brown from her husband, Ms. Brown's suffering a stroke, the fact that Ms. Brown and her two daughters moved to a new neighborhood, and the pregnancy, at age fourteen, of the older of the Brown daughters. The motion further set forth that defense counsel had spoken with a psychologist to determine the effect of these events on Lakia, the younger of the two daughters, who had refused to go to school during that time period. A Family Division Judge denied this request, and also denied appellant's motion for reconsideration filed a short time later. As the trial was about to begin, the trial Judge declined a request to reconsider the motions Judge's rulings but indicated that in any event he agreed with them.
Before trial, Ms. Brown filed a motion to dismiss the charges against her on the basis that the compulsory school attendance statute was unconstitutional on its face and as applied in her case. The trial court denied the motion prior to trial, and entered a written order after trial explaining its ruling. See District of Columbia v. Brown, 124 Daily Wash. L. Rptr. 1965 (D.C. Super. Ct. Aug. 27, 1996).
At trial, the government called as witnesses persons employed by the District of Columbia school system who gave detailed testimony concerning Lakia's absences and their efforts to persuade appellant to have Lakia attend school regularly. Ms. Brown testified that she walked her child to school every day, only to have the child break and run away. The trial Judge did not credit that testimony. There was evidence that Ms. Brown was suffering from a heart condition, and had suffered a stroke. The court found that when the child's older sister and father escorted Lakia to school, the child stayed and attended school. Further, when Lakia began to live with her grandmother and was transferred to another school, she began attending school regularly. Ms. Brown was found guilty of nine of the twelve counts. She filed a timely notice of appeal.
On appeal, appellant first raises three arguments as to why the statute, D.C. Code § 31-402, should be declared unconstitutional as void for vagueness. The first argument is that the statute fails to state the standard of liability to which a person is held. The second is that the statute does not give proper notice of the behavior proscribed. The third is that the statute is vague in that it impermissibly delegates legislative authority, giving administrative and judicial authorities an inappropriate amount of discretion. Reviewing this Constitutional question de novo, see Guadalupe v. United States, 585 A.2d 1348, 1352 n.7 (D.C. 1991), we find ourselves unpersuaded by all three arguments.
"The test for determining unconstitutional vagueness is whether the language of the regulation is so vague, with respect to what conduct is either proscribed or required, that persons of common intelligence must necessarily guess at its meaning." Woods v. District of Columbia Nurses' Examining Bd., 436 A.2d 369, 374 (D.C. 1981) (citations omitted). When the statute at issue does not implicate First Amendment concerns, the proper inquiry is whether the defendant in question "could not reasonably understand that his contemplated conduct is proscribed." German v. United States, 525 A.2d 596, 605 (D.C. 1987) (quoting United States v. National Dairy Prod., 372 U.S. 29, 32-33 (1963)) (emphasis in original). In examining the statute, we are mindful of our "obligation to interpret statutes so as to support ...