Michigan Court of Appeals Holds in Truancy Case that Clear Error Exists Where Referee Was Biased
On April 15th, 2014, the Michigan Court of Appeals held in a truancy case that clear error existed where a referee "substituted her personal experience and bias and failed to apply the law to the facts . . . ."
In In re Arek Napieraj, Docket No. 314305, the Michigan Court of Appeals addressed an appeal from an order of disposition following an adjudication of guilt on one count of truancy in violation of MCL 712A.2(a)(4). The Court of Appeals found insufficient evidence in the record to support the referee's opinion that the absence were "willful" under the statute.
The Court first addressed the facts of the case.
Respondent had a history of frequent absences from school and in September 2011, school officials met with respondent’s mother and respondent to discuss the fact that respondent had already missed four days of school and the school year was just underway. Respondent’s mother explained "I told them that it was an ongoing problem . . . from bullying, he felt he was being bullied in school and he would actually be physically ill in the morning for several hours. He would get up to start his day at like 6:00 a.m. and he would get sick." School officials responded that "[i]t wasn’t an excuse and that he needed to come to school and tell them if he was being bullied and they would take care of it."
Respondent and his mother were called for another meeting in February 2012 to discuss respondent’s continued absences. They discussed the parameters of legitimate, excused absences. Respondent’s mother was advised that respondent needed to improve his attendance and that there was "zero tolerance" for unexcused absences. School officials told respondent’s mother that all absences had to be accompanied with a doctor’s note. Respondent missed three days of school following the February meeting, prompting school officials to request the prosecutor’s office to send its standard warning letter, and ultimately, file a formal petition.
At the hearing on the petition, school officials testified that respondent’s absences persisted and were deemed unexcused because they were not accompanied by a doctor’s note. Respondent’s mother testified that respondent’s attendance had improved and that he only missed two days in March 2012 because he was competing at a dog show in Kentucky—an activity recommended by respondent’s therapist. Respondent missed two or three days after that due to "a stomach bug" and when he had a migraine headache, a symptom of his Asperger’s disease. Respondent’s mother testified that she was hesitant to take him to the doctor’s office because it cost between $50 and $200 per visit. She believed that only "cluster absences" – those greater than two days – needed a doctor’s note.
The trial court adopted the referee’s conclusion that respondent was guilty of truancy.
The Court of Appeals began its analysis with the statute at issue, MCL 712A.2(a)(4).
The truancy statute, MCL 712A.2(a)(4), provides that a trial court may exercise jurisdiction over a juvenile when the juvenile "willfully and repeatedly absents himself or herself from school . . ." Respondent argues that his absences were not "willful" because they should have been deemed excused . . .
The Court then addressed the portion of the record containing the referee's conclusions.
At the conclusion of respondent’s case and in the face of the evidence presented by each side, the referee announced its verdict:
THE COURT: Okay, I taught for ten years, you’re found guilty.
MR. TOMALA: I’m sorry?
THE COURT: He’s guilty.
MR. TOMALA: No, what—
THE COURT: He was—he’s found guilty, he had more than one unexcused absence. There was a petition filed, I don’t have any re—just because his attendance improved is –get me a case that says if attendance has improved I don’t take jurisdiction. There is none cause [sic] that’s not the law. They may have wanted his attendance to improve but I wanted him to be in school all the time. He didn’t do it, he is guilty of school truancy.
MR. TOMALA: Just so I’m clear then, your—your statement is that any absence, we’re talking strict liability, any absence results—
THE COURT: Any absence—
MR. TOMALA: —in a truancy?
THE COURT: —without a doctor’s excuse is school truancy.
The Court then explained why the referee erred.
This was clear error. Clear legal error occurs "[w]hen a court incorrectly chooses, interprets, or applies the law." Daily v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501 (2011). Here, the referee distorted truancy from an act requiring repeated, willful conduct to one of strict liability. "A strict-liability crime is one for which the prosecutor need only prove that the defendant performed the act, regardless of intent or knowledge." People v Adams, 262 Mich App 89, 91; 683 NW2d 729 (2004). However, "Michigan courts must infer a criminal intent for every offense in the absence of an express or implied Legislative intent to dispense with criminal intent." People v Janes, 302 Mich App 34, 53; 836 NW2d 883 (2013). MCL 712A.2(a)(4) specifies that a juvenile must have willfully absented himself from school. The referee’s cryptic statement fails to discuss the willfulness of respondent’s conduct. In addition, the referee’s assumption of jurisdiction appears predicated merely on its experience as a former teacher, rather than on the facts and the law presented in this case. Respondent was entitled to individual consideration based upon the law and facts applicable to his case, not on anecdotal experiences of the hearing officer. See Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009).
Our review of the record compels a finding that respondent’s conduct in this case was not willful as contemplated under MCL 712A.2(a)(4). Petitioner’s own witnesses admitted that certain of respondent’s absences were attributable to illness and fear of bullying. Moreover, petitioner’s own attendance record categorized many of respondent’s absences as [']excused,['] although the school official testified, in essence, that [']excused['] did not mean [']excused['] for purposes of the allegations made in the petition against respondent. The official testified that the designation [']E-P['] on the attendance record indicated [']excused, parent called [in],['] and the notation [']E-IL['] designated [']excused for illness,['] a circumstance where a parent called to report that the student was home sick. The official was unsure what the [']E-PC['] designation indicated—he speculated that it was a parent call-in—and that [']R['] indicated an absence due to a school-related function, which absence would not be considered as truant. When asked about the use of the word [']excused['] on the attendance record in light of the school’s position that, instead, the referenced absences were in fact [']unexcused,['] the official said, ['][y]ou know, I—excused is an interesting term. It just means a parent called. [']Thus, it appears that respondent’s attendance record says one thing but means another and that certain [']excused['] absences were in reality [']unexcused.[']
Respondent’s mother provided the reasons for respondent’s absences. Respondent was being bullied in school and he would periodically become physically ill and vomit in the morning for several hours; again, petitioner conceded it had received reports of bullying. Respondent’s mother also provided a doctor’s note to the school excusing certain of the disputed absences, and excused two days in March 2012 because respondent was competing at a dog show in Kentucky—an activity recommended by respondent’s therapist. Respondent missed two or three days after that due to [']a stomach bug['] and when he had a migraine headache, a symptom of his Asperger’s disease. Finally, respondent’s mother explained that she was hesitant to take her son to the doctor’s office because it cost between $50 and $200 per visit. This evidence was not disputed, except by the school’s position that the absences noted as excused on the attendance sheet were, in fact, apparently secretly unexcused, and that any absence needed a doctor’s note. We conclude that, under these facts, respondent’s mother exercised reasonable parental discretion and that the absences should have been deemed excused upon her request.
On this record, and contrary to the notion that respondent’s absences were [']voluntary or intentional,[']the evidence militates against a conclusion that respondent’s absences were [']willful['] within the meaning of MCL 712A.2(a)(4). The referee failed to address the evidence presented on the record or make any reference to the [']willful['] element of the statute under which respondent was charged. Indeed, the referee made no findings of fact or conclusions of law of any kind and does not appear to have applied the law to the facts of the case in any way. It appears rather that the referee substituted her personal experience and bias and failed to apply the law to the facts; such a position is untenable.