Com. v. Doe

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA, ET AL.

v. Record No. 081691 OPINION BY
JUSTICE BARBARA MILANO KEENAN
September 18, 2009
JOHN DOE

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge

In this case, we consider whether a court order entered under

Code § 18.2-370.5, granting a convicted violent sex offender

permission to enter public school property under certain specified

conditions, violates Article VIII, Section 7, of the Constitution of

Virginia (the Constitution), which vests in school boards supervisory

authority over public schools.

In 1999, John Doe was convicted of two charges of taking

indecent liberties with a child while in a custodial or supervisory

relationship, in violation of Code § 18.2-370.1. Based on Doe’s

convictions for these offenses, which are classified by statute as

sexually violent offenses, Doe was required to register as a sex

offender with the Sex Offender and Crimes Against Minors Registry.

See Code § 9.1-902.

Doe was released from incarceration in 2000 and completed his

term of supervised probation without incident. After a hearing in

2006 on Doe’s petition brought under Code § 9.1-909, the Circuit

Court of Orange County entered an order terminating Doe’s duty to re-
register every 90 days as a sex offender, but requiring him to

register annually with the Virginia State Police as a convicted sex

offender. That court determined Doe did not “suffer from any mental

abnormality or personality disorder that makes him a menace to the

health and safety of others or significantly impairs his ability to

control his sexual behavior.” See Code § 9.1-909.

At issue in this case is the language of Code § 18.2-370.5,

which states:

A. Every adult who is convicted of a sexually violent offense,
as defined in Code § 9.1-902, shall be prohibited from entering
and being present, during school hours and during school-related
and school-sponsored activities, upon any property he knows or
has reason to know is a public or private elementary or
secondary school or child day care center property, unless (i)
he is a lawfully registered and qualified voter, and is coming
upon such property solely for purposes of casting his vote; (ii)
he is a student enrolled at the school; or (iii) he has obtained
a court order allowing him to enter and be present upon such
property, and is in compliance with terms and conditions of the
order. A violation of this section is punishable as a Class 6
felony.

B. Every adult who is prohibited from entering upon school or
child day care center property pursuant to subsection A may
after notice to the attorney for the Commonwealth and either (i)
the proprietor of the child day center, (ii) the superintendent
of public instruction of the school division in which the school
is located, or (iii) the chief administrator of the school if
such school is not a public school, petition the juvenile and
domestic relations district court or the circuit court in the
county or city where the school or child day center is located
for permission to enter such property. For good cause shown,
the court may issue an order permitting the petitioner to enter
and be present on such property, subject to whatever
restrictions of area, reasons for being present, or time limits
the court deems appropriate.

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 In August 2007, relying on the provisions of Code § 18.2-

370.5(B), Doe filed a petition in the Circuit Court for the City of

Charlottesville (the circuit court) seeking an order permitting him

to enter onto property of the Charlottesville City Schools to attend

school events involving his stepson. The circuit court ultimately

entered an order granting Doe’s petition.

In its order, the circuit court stated that Doe is permitted to

come onto the grounds of any Charlottesville public school at which

his stepson is a student

as may be necessary to pick up or drop off his [stepson],
to participate in teacher conferences or to meet with
faculty or staff, to be a spectator at any school
performance at which his [stepson] is a participant, and
for any other purpose for which the school administration
may specifically consent to or request his presence.

The circuit court also imposed the following conditions on Doe’s

presence on school property:

1. If [Doe] comes onto school property to pick up or
drop off his [stepson], he shall not get out of the motor
vehicle except to report to the front office or unless
asked to do so by the school administration.

2. If [Doe] wishes to come onto school property for
some other reason (teacher-parent conferences, student
performances, etc.), he shall only do so under the
following conditions: that he notify the principal of the
school at least 48 hours in advance of his desire to come
onto school property; that the school principal shall have
the discretion to refuse permission if there is some
particular reason why his presence on school property would
be inappropriate or a danger to others, which permission
shall not be unreasonably withheld; that he come only for
the specific activity, and that he leave school property
promptly after the conclusion of the activity; and that he

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 abide by all other terms and conditions of the school
administration.

The Commonwealth, the Charlottesville City School Board, and the

Superintendent of the Charlottesville City Schools (collectively, the

Commonwealth) objected to entry of this order, and we granted the

Commonwealth’s petition for appeal.

The Commonwealth argues that the circuit court applied Code

§ 18.2-370.5 in a manner that violates Article VIII, Section 7, of

the Constitution (Article VIII), which vests in a school board

supervisory authority over the public schools located in a given

school division. The Commonwealth asserts that the circuit court’s

order improperly divests the local school board of its constitutional

authority to supervise public schools, which includes the school

board making its own determination whether and under what

circumstances a sex offender may enter onto school property.

According to the Commonwealth, Code § 18.2-370.5(B) provides

circuit courts and juvenile and domestic relations district courts

the authority to remove the statutory ban imposed by Code § 18.2-

370.5(A), which prohibits a violent sex offender from entering onto

school property, and implicitly leaves to a school board the ultimate

decision whether to allow the convicted offender entry. The

Commonwealth contends that, when interpreted in this manner, Code

§ 18.2-370.5 does not restrict the supervisory authority granted by

the Constitution to local school boards to determine under what, if

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any, circumstances a previously convicted sex offender may enter onto

school property.

In response, Doe argues that the circuit court did not err in

issuing an order granting him a limited right to enter onto school

property subject to the conditions stated in the order. Doe contends

that Code § 18.2-370.5 is unambiguous and represents a clear exercise

of the General Assembly’s police power. Doe asserts that this police

power includes the authority to define crimes, to set sanctions, and

to enact laws regarding the conditions that courts may impose upon

sex offenders.

Doe contends that the statute does not interfere with a school

board’s authority under Article VIII, because the Constitution does

not give absolute power to the school boards independent of other

laws enacted by the General Assembly. In support of this argument,

Doe references numerous statutes that either directly or indirectly

impose requirements on school boards that affect the operation of

public schools. According to Doe, such examples include the

statutory requirement that students in public schools recite the

Pledge of Allegiance daily, Code § 22.1-202, and the statutory

requirement that school boards purchasing insurance for school

buildings use an insurance company authorized to do business in the

Commonwealth, Code § 22.1-84.

In resolving this issue of statutory construction, we begin with

the principle that courts have a duty when construing a statute to

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avoid any conflict with the Constitution. Kopalchick v. Catholic

Diocese of Richmond, 274 Va. 332, 340, 645 S.E.2d 439, 443 (2007);

Jeffress v. Stith, 241 Va. 313, 317, 402 S.E.2d 14, 16 (1991); see

Tanner v. City of Virginia Beach, 277 Va. 432, 438-39, 674 S.E.2d

848, 852 (2009); In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270,

272 (2003). We attribute to the General Assembly the intent to enact

statutes that comply with the Constitution in every respect.

Kopalchick, 274 Va. at 340, 645 S.E.2d at 443. Therefore, whenever

possible, we will interpret statutory language in a manner that

avoids a constitutional question. Marshall v. Northern Virginia

Transp. Auth., 275 Va. 419, 428, 657 S.E.2d 71, 75 (2008); Yamaha

Motor Corp. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 127

(2002); Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940).

We also apply the related principle of construction that when a

statute can be given two different interpretations, one that is

within the legislative power and the other without, we are required

to adopt the interpretation that conforms to the Constitution. Ocean

View Improvement Corp. v. Norfolk & W. Ry. Co., 205 Va. 949, 955, 140

S.E.2d 700, 704 (1965); H.L. Carpel of Richmond, Inc. v. City of

Richmond, 162 Va. 833, 840, 175 S.E. 316, 318 (1934); see Kopalchick,

274 Va. at 340, 645 S.E.2d at 443; Jeffress, 241 Va. at 317, 402

S.E.2d at 16. In addition, we must avoid any literal interpretation

of a statute that would lead to absurd results. See Conyers v.

Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d

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174, 178 (2007); Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494,

496 (2001).

Applying these principles, we conclude that Code § 18.2-370.5(B)

is susceptible of two different constructions. The first

construction, which Doe urges, would authorize a circuit court or a

juvenile and domestic relations district court (collectively, circuit

court) to give a convicted violent sex offender the right to enter

onto public or private school property irrespective of a contrary

position taken by a school board or private entity. The second

construction of Code § 18.2-370.5, advocated by the Commonwealth,

would authorize a circuit court to lift the statutory ban imposed by

Code § 18.2-370.5(A), but would allow the affected private entity or

public school board to determine whether and under what circumstances

an offender may enter onto school property.

We conclude that Doe’s interpretation of Code § 18.2-370.5(B)

raises a constitutional question regarding the power of the General

Assembly to restrict the authority granted to school boards by

Article VIII. The relevant grant in Article VIII states, in material

part, that “[t]he supervision of schools in each school division

shall be vested in a school board.” Doe’s analysis creates a

constitutional conflict because his analysis would eliminate the

school boards’ authority to determine whether the presence of such an

offender would adversely affect the safety and welfare of students on

school property. Such decisions regarding the safety and welfare of

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students are manifestly a part of the supervisory authority granted

the school boards under Article VIII.

The essential deficiency in Doe’s analysis is that it improperly

invokes the police power of the legislature to impose the presence of

a violent sex offender on public school property. This reliance on

the police power is misplaced because the circuit court’s order would

give Doe, a violent sex offender, the right to enter onto school

property for purposes related to the education of his stepson, rather

than for purposes related to public safety.

Doe’s analysis also overlooks the fact that during the period

that a court is supervising a violent sex offender on probation or on

a suspended sentence, the court retains the authority to prohibit

that offender from entering onto public school property. Moreover,

once the offender has completed the terms of his probation or

suspended sentence, the court still retains the authority to refuse

to lift the ban imposed by Code § 18.2-370.5(A). Therefore, contrary

to Doe’s analysis, the interpretation of Code § 18.2-370.5(B)

advanced by the Commonwealth does not restrict the power of a court

to ensure public safety with regard to the presence of a convicted

violent sexual offender on school property.

We also observe that Doe’s construction of Code § 18.2-370.5(B)

would permit absurd results. Under Doe’s construction, a circuit

court could force an owner of private property who operates a day

care center or a private school to admit a convicted violent sex

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offender onto the owner’s property irrespective of the owner’s

consent. We cannot ascribe to the General Assembly the intent to

divest from such owners this basic right of property ownership.

Thus, we further disagree with Doe’s construction because it permits

a circuit court to deny an owner of private property the right to

determine who may enter onto that property.

Under the Commonwealth’s construction of Code § 18.2-370.5(B),

however, the school board would be permitted to exercise its

supervisory authority granted by Article VIII. Once a circuit court

has lifted the ban imposed by Code § 18.2-370.5(A), the school board

would be permitted to determine whether, and under what

circumstances, an offender may enter onto school property.

The Commonwealth’s construction of the statute also would permit

the circuit court to lift the statutory ban in part, specifying the

extent to which the ban is lifted regarding the time, place, and

reasons for being present on school property. After the circuit

court lifts the statutory ban in full or in part, the school board

then would be permitted to decide whether to allow the offender entry

within all or part of the scope of the lifted ban.

We agree with the Commonwealth’s construction of the statute

because this interpretation permits the school board to exercise

fully its supervisory authority under Article VIII, while preserving

the circuit courts’ authority to determine whether the statutory ban

should be lifted in whole or in part based on the particular

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circumstances of a given offender. This construction ensures the

constitutionality of the statute and preserves the sound legislative

purpose of involving both the courts and the affected day care and

school authorities in these decisions of manifest public importance.

Finally, our conclusion is not altered by Doe’s argument that

because the General Assembly has enacted many statutes directly or

indirectly affecting the supervisory authority of school boards, Code

§ 18.2-370.5 is simply another statute that imposes restrictions on

the school boards’ exercise of its supervisory authority. This

argument is unpersuasive because it relies primarily on the passage

of various unrelated legislative enactments, rather than on a

substantive analysis of the statute at issue. We also find no merit

in Doe’s remaining arguments.

For these reasons, we will reverse the circuit court’s judgment

and remand the case for a determination whether, and under what

circumstances, the statutory ban of Code § 18.2-370.5 applicable to

Doe should be lifted in whole or in part.

Reversed and remanded.

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