Truancy by Judge Thomas J. Alisankus

Truancy
By Judge Thomas J. Alisankus


Recent events in Evansville brought to light the subject of truancy. As such, I thought it might be helpful to discuss what truancy is, as well as what it isn’t, according to Wisconsin law. While I have decided to make this a more ‘user-friendly’ article by omitting statutory references, state laws involving truancy can generally be found by referring to sections 118.15 and 118.16 of the Wisconsin Statutes. These statutes can easily be found online, at sites such as www.wisbar.org .

It may also be useful to give a brief overview of the differences between statutes and ordinances, as well as some general rules regarding their interpretation. Note the words ‘brief’ and ‘general’.

Wisconsonites are proud of the concept of ‘home-rule’. In essence, this is the belief that local communities know best what they need, and how to govern; each community gets to establish its own way of doing things. This is somewhat oversimplified, but a good starting point. True to this concept, state law allows municipalities to create their own ordinances to govern various kinds of conduct to the extent that each community desires. Ordinances are generally grouped into two types—statutory-counterpart, and non statutory counterpart. In other words, communities have the choice of either taking an already established state law, and ‘adopting’ it as an ordinance, or, in certain cases, the community can create its own ordinance that has no statutory counterpart. For example, Evansville has an ordinance against disorderly conduct. Instead of reinventing the wheel, Evansville’s City Council long ago ‘adopted’ the state law against disorderly conduct as the City’s ordinance against disorderly conduct; it’s the exact same wording. Generally, a community can enact the entire state traffic and misdemeanor criminal code as statutory-counterpart ordinances.

This leads to one of the major differences between state laws and ordinances: Violations of state law can result in a monetary fine as well as a jail or prison sentence and a criminal record ; violations of ordinances can result in a forfeiture (basically, another word for ‘fine’, but used for ordinance violations) and certain other ‘dispositions’ (such as community service) but no criminal record, and no jail time (unless, of course, you don’t pay the forfeiture, or otherwise abide by court-ordered dispositions). If a community has a municipal court, then that court handles all ordinance violations.

One final comment about laws/ordinances: Any law or ordinance can be modified by a subsequent court decision. This is part of our system of ‘checks and balances.’ An extreme, but perhaps best known example of this is found in section 940.04 of the Wisconsin Statutes. That section makes abortions illegal in Wisconsin; it is a state law, still on the books. However, as most know, the U.S. Supreme Court made such laws unconstitutional to enforce in its 1973 decision of Roe v. Wade. (Sidebar: One may wonder why this state law, adopted in 1969, is still on the books in 2005. The answer is quite simple: If Roe v. Wade is ever overruled by the U.S. Supreme Court, the Wisconsin Legislature would not have to engage in a debate to ‘reinstate’ the law, because it is already on the books. That, however, is for another article, by a different author.) The Wisconsin Supreme Court held in 1991 that municipal courts had the authority to determine the constitutionality of municipal ordinances.

With that background, we can now explore truancy. There are basically two types of truancy—what is commonly referred to ‘daily’ truancy, and ‘habitual’ truancy. Daily truancy is defined as “[A]ny absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil….” Habitual truancy is defined by law as missing part or all of 5 or more days in one semester without an acceptable excuse.

State law gives fairly broad authority to local school boards to “….establish a written attendance policy specifying the reasons for which pupils may be permitted to be absent….” In other words, it is generally up to the school board what constitutes an acceptable reason for being absent. The school district’s attendance policies may be found at: http://www.evansville.k12.wi.us/pupilservpolicies.htm There are some exceptions on this topic listed in state law; however, because as Judge, I may some day be called upon to interpret both the law and the exceptions, it would not be ethically appropriate for me to discuss them further.

The City of Evansville has adopted the provisions of state law regarding habitual truancy as ordinances. In order for the City to prosecute habitual truancy cases, there must be evidence that the school complied with the requirements in section 118.16(2) of the Wisconsin Statutes, as adopted by municipal ordinance. These provisions are only required to be met in habitual truancy cases. However, this same language appeared in the City’s ordinance prohibiting daily truancy as well. It is my understanding that City Counsel will be asked to withdraw those requirements as they apply to daily truancy cases, and return the local ordinance for ‘daily’ truancy to a statutory counterpart ordinance as described above. In fact, this may have already been done by the time this article is distributed. Finally, parents and guardians can also be prosecuted for ‘contributing to truancy’.

Penalties for the two types of truancies vary greatly. For example, daily truancy has a penalty of $50.00 plus costs for the 1st offense, and $100.00 plus costs for a second or subsequent offense w/in 12 months of the first offense. Additionally, the court can order participation in various counseling and other activities, including community service.

On the other hand, penalties for habitual truancy are much steeper. They include a forfeiture of not more than $500.00 plus costs (assessed against the student and/or the parents or guardian of the student); driver’s license suspension (or, if the student doesn’t have a driver’s license, a court-order to the Dept. of Transportation to delay the issuance of a license to that student; a suspension of any work/employment permits; home detention; student and/or family counseling at the parent’s expense; informal or formal supervision, and other reasonable orders of the court. Failure to abide by these orders (dispositions) can result in additional penalties, including electronic home monitoring at the student’s expense, and incarceration in the juvenile detention facility.

The whole purpose of truancy laws are to promote the legal requirement of ‘compulsory education’ as defined in the state statutes. To that end, all three branches of government are involved: The Legislative branch—by passing state laws or adopting municipal ordinances; the Executive branch—whereby police, in their discretion, take enforcement action pursuant to a school complaint of truancy; and the Judicial branch, which assures that neither the Executive or Legislative branches exceed their constitutional authority—which, once again, is a topic for another article….