Date: Mon, 8 Jan 1996 13:55:46 -0500

Dear Ms. Enwright,

Thank you for your kind, though incomplete, response to my letter of November 19, 1995. Before dealing with the content of that letter, I must point out a significant administrative difficulty which was evidenced by the way your correspondence was apparently handled after it left your desk.

The date on the letter is December 1, 1995. The postmark on the envelope is December 28, 1995. Is your administrative staff so incompetent that it takes them twenty-eight days to mail a one page letter? For your sake, I hope not. I am bringing this to your attention so that you may do what is necessary to correct the situation so this dismal performance is not repeated. In this case, the delay works to my advantage, but that notwithstanding, I expect better of the agencies my tax dollars support.

My original letter clearly requested a copy of your case records, including, what I now understand is called an "intake report". The time (30 days) allotted by statute (RSA 170-G:8-aa) for your director (or deputy director) to object to this request has expired. I am hereby demanding a full and complete copy of all information I am entitled to under RSA 170-G:8a. This demand is in addition to my still-outstanding original request.

The fourth paragraph of your December letter gives me enough information to guess most of what is in your files. But my ability to do so does not relieve you of your obligation to disclose.

It is unfortunate that the Commissioner of Education choose to waste New Hampshire taxpayers' dollars by involving you in what is clearly a question of law, not of neglect or abuse. Neither the life, the health, nor the welfare of our children is in question. The issue here is what the law does or does not require parents to do. This is not a matter that falls within your purpose or domain. Our local school superintendent and the Department of Education apparently believe we have a legal obligation to notify them that we are home schooling and thereby disclose the number, names, and ages of our children. We do not believe we are under any such obligation. I conveyed this belief, and the basis thereof, to Superintendent O'Neil in a letter dated May 12, 1995. The following is an excerpt from that letter:

The situation, as I understand it, is this: You believe we have a legal obligation to notify you that we are home schooling our children and to provide you with certain information, such as the names and birthdays of our children and we do not believe we are under any such legal obligation.

I have reviewed the copy of that statute which you left with me for that purpose and would like to give you my conclusions. Before doing so however, I will thank you again for stopping by. I appreciate your concern for my children and your courtesy as we discussed a matter about which we apparently have some disagreement. It would have been all too easy for you to have taken an authoritarian position. I'm glad that you did not. I share your desire to resolve our differences (of opinion) without becoming adversarial.

I have, as I've said, read RSA 193-A. Having done so, I understand where you're coming from. I do, however, maintain my position that we are under no legal obligation to provide the requested information. Let me tell you why I believe this. First, as we have already discussed, I hold that educating our children at home is an exercise of a fundamental right which the state of New Hampshire may not regulate, limit, or place requirements upon. You agree that it is a right, but maintain that RSA 193-A places certain requirements upon it. If you look up the meaning of a "right" in this context, I think you'll see that it can not be as you say. A right is an authority retained by an individual over the state or society in which they live. The state can not restrict it, it has no jurisdiction to do so.

The New Hampshire Constitution speaks to this point in its first few Articles. Article I (correctly) asserts that we are all born free and independent. Article 2 recognizes that we have certain natural, essential, and inherent rights. Article 3 stipulates that the only conditions under which individuals may be called upon to surrender their natural rights is "in order to ensure the protection of others" (which does not seem to be apply to the situation at hand). And finally, Article 4 acknowledges (in agreement with Article 3) that certain rights are "in their very nature unalienable" and cites "Rights of Conscience" as an example. I am not going to include the text for these Articles in this letter. I am assuming that you, as Superintendent of Schools, have access to them.

If you have not done so already, it might be a good idea for you to read these Articles again now to remind yourself of the supremacy of these natural rights over any of man's laws. The Constitution of our state acknowledges this fact, as do the courts of the land. At both the state and federal level, they have consistently held that any statute that infringes on a right is void on its face.

I am not necessarily suggesting that RSA 193-A is such a law. I don't think it is. At least not when read properly. You see, in the field of law there is something known as a "term of art". It's a word or phrase that, in a legal context (such as a contract or statute) has a specific meaning which is not necessarily the same as its meaning in normal use. Lawyers are typically very good at confusing the general public through the (mis)use of these "terms of art". One such term is the word "shall", which in normal use has a mandatory construction and is interpreted as meaning "must". It does not always mean that in law. Sometimes it means "may".

When does it mean one versus the other? When it applies to some part of government it is generally understood to mean "must". When it applies to a citizen, it will more often mean "may", particularly if there is question of constitutionality. The following citations support this:

The word shall" in a statute may be construed to mean "may", particularly in order to avoid a constitutional doubt - Fort Howard Paper Co. v. Fox River Heights Sanitary Dist.

If necessary, to avoid unconstitutionality of a statute, "shall" will be deemed equivalent to "may" - Gow v. Consolidated Coppermines Corp.

"Shall" in a statute may be construed to mean "may" in order to avoid constitutional doubt - George Williams College v. Village of Williams Bay

As against the government, the word "shall" when used in statutes is to be construed as "may" unless a contrary intention is manifest - US Supreme Court, Cairo and Fulton R. R. Co. v. Hecht

Why is this so important to our discussion? Because RSA 193-A consistently uses "shall", not "must" or "is required". Because RSA 193-A would violate the natural and unalienable rights of New Hampshire citizens, and thereby violate its Constitution, if the term meant anything but "may". It is generally presumed that legislatures are wise enough to avoid wasting their time creating laws that are void. It is therefore equally generally presumed that when there are two possible interpretations for a law, one of which would be unconstitutional and the other of which would not, the interpretation which is not unconstitutional must have been the one the legislature intended.

If you have even the slightest doubt about the validity of this, check with legal counsel. In doing so however, please remember that lawyers are trained, and used to working in, an adversarial system. We are being advocates of differing views, not adversaries. You may have to frame your questions carefully to keep your conversation focused on "what is correct" rather than "how do we win".

If you go back and read RSA 193-A substituting "may" for "shall" as appropriate, you will see that we, as parents, have the opportunity of notifying you that we are home schooling. We are not required to do so. We have the opportunity of providing certain information, which you must then maintain. We are not required to do so. We have the opportunity of working with you to evaluate our children's educational progress. We are not required to do so.

We do not need, and are not asking for, your permission to home school our children. It is our right, as their parents, to do so. You and your colleague have already agreed as much. While you have suggested that RSA 193-A creates a requirement for us to notify you, I do not see it. I hope I have shown you why it is not, and can not, be there.

Mr. O'Neil and I met to discuss the matter after he had reviewed the above letter. As a follow-up to that meeting, I notified him by phone that additional support for my claim that the word "shall" has two possible meanings could be found in it's definition in Black's Law Dictionary (Sixth Edition) which consists of two paragraphs, one covering the imperative ("must") definition and the other covering the permissive ("may") one.

Mr. O'Neil has never challenged my claims that educating one's children is a parental right (and not a state-granted, and therefore a state-regulatable, privilege). If he thought otherwise, he would be mistaken. There is substantial case law, including a number of New Hampshire and U.S. Supreme Court rulings, to support my position.

As far as this being a question of law, that is, perhaps, an overstatement. I believe the law is very clear in this matter. What is missing is understanding of the law on the part of Mr. O'Neil and the Department of Education. Hopefully, your legal staff is better educated. With reference to the fourth paragraph of your December letter, the "certain procedures" are not required by the home schooling law (RSA 193-A), and therefore the phrase "education as required by law" (emphasis added) does not, and can not apply. We can not be in non-compliance, technical or otherwise, of a statute which does not require us to do anything. Further, the section of code your are referring to reads (in significant part): "Neglected Child" means a child . . . Who is without proper education as required by law. [from RSA 169-C:3 XIX. Now, by your own admission, there are no questions as to the adequacy of our children's education.. The sole question is our lack of "notification". A neglected child is not one whose parents have failed to conform with the notification requirements (should such exist) of the Home Schooling Act. If it were, the General Court would have said so. I therefore suggest you reevaluate your position with regard to the possibility of educational neglect. For the reasons I have stated, it is logically and legally impossible for our situation to be construed in such light.

I am presuming that you have a way to annotate a report as unfounded because the allegations, even if true, do not constitute abuse or neglect. For example, how would you handle a report from one (overly) health-conscious estranged parent charging the other (more liberal) one with abusing their child by feeding him or her a single cotton candy (in addition to a conventional lunch) at the County Fair? Assuming that these were the only allegations, I would expect you, or any of your co-workers, to recognize this as a case which does not even warrant investigation. God help you if you think otherwise. Our situation is no different. I would suggest you use the appropriate notation to close our case and get on with more important matters. There are people doing real harm to children out there. We are not among them.

I have stated my belief that this is not a matter which falls within your purview. As further support of this assertion, let me point out that my children would not be in the least bit affected, one way of the other, by my providing the information Mr. O'Neil and the Department of Education desire. In fact, as best as I can tell, the only one who would be impacted by such an event is Mr. O'Neil, who (I believe) could use the information to get more money for his district. This must be particularly attractive since the added revenue would not be accompanied by any added expense, as is the case when a child is actually enrolled. As far as I know, your department is not responsible for investigating cases of alleged superintendent neglect.

Now, with regard to the content of your December letter, I owe you an apology. I'm sorry. I should have realized that you would be ill-prepared to deal with the legal questions I was raising. I should have suggested that you turn the matter over to legal council. I have read RSA 169-C:34 and RSA 169-C:2, the statutes you claim have all the answers. Neither of them speak to the issues of my legal obligation to meet with you, of the nature of the proceedings, or of your jurisdiction. I have no reason to doubt your abilities as a Child Protective Service Worker. I now have every reason to doubt your qualifications as a lawyer. That is not necessarily a bad thing. As a class, lawyers don't have that good of a reputation.

Let me correct my past error: It might be a good idea to get help on this one. Maybe even turn it over altogether (presuming you pursue it at all). We are not disputing the claim that we have failed to notify anyone of our home schooling activities. What we are disputing is our (imputed) obligation to do so. However good your field skills are, they are ill-suited to dealing with this situation.

Getting back to the statutes, RSA 169-C:34 requires your office to perform a "child protective investigation". It does not, contrary to your assertion, explicitly require you to meet with or even speak to us. It certainly does not require us to meet with you, or even to cooperate with such an investigation. Since the information called for in section II of that statute is essentially the same information we are choosing not to disclose to Mr. O'Neil, you can understand when I say that I will use all lawful means to prevent you from determining it.

As it happens, in the case at hand, none of this information is germane. The care and treatment of individuals within our household is not in question. None of the information you are required to determine under this statute has the least bit of bearing in this matter.. (Might that be a big clue that this isn't a case for your group?)

Again, contrary to your assertions, neither of these statutes specifies the nature of the proceedings. I did find the answer to this issue while researching your response. I found the following in the annotations to RSA 169-C: "Parents who allegedly neglect children are brought before the court as parties to civil proceeding, not as criminal defendants. In re Heather D. (1981) 121 NH 547, 431 A2d 789." This is very significant, because the state does not have the necessary standing to bring a civil suit against us. Neither we, nor our children, are wards of the state. We are all free and sovereign citizens. We have no contracts with the state which would give it any legal standing to proceed in a civil matter. God Almighty entrusted us with some of His children. We take that responsibility very seriously and will not answer to any lesser civil authority for our actions as parents.

Further, since we have not been served with a summons as required by RSA 169-C:8, this matter has yet to reach even the civil proceeding stage. We are therefore, at most, at an administrative level. Since your Division accepts federal funds, you must follow certain federal laws, one of which is the Administrative Procedures Act. Under this law, the party asserting that a statute applies to an individual and places a responsibility upon them (as you and Mr. O'Neil are doing) has the burden of proof. You have yet to meet that burden. The presumption is in our favor.

This brings us to the issue of jurisdiction. Again, your assertions notwithstanding, there is nothing in the statutes you have cited that establishes your jurisdiction in this matter. As I have already indicated, the issue is not one which falls within your purpose as defined by RSA 169-C:2. In addition, this statute refers to "children coming within the provisions of this chapter". By these words we can know that there are children which do and children which do not come within the scope of this statue. As I have already stated, it is our position that our children are among the latter group. As sovereigns, the presumption is that they are not included and there is nothing in the statutes you have cited that would indicate otherwise. In other words, you have not yet provided any information that indicates why you think they fall under your jurisdiction. I take your failure to provide the requested statutes as an indication that no such statutes exist.

Since you had a "reasonable time" in which to reply and have failed to (adequately) do so, the legal principle of Estoppel by Acquiesce can be said to presumably apply. What this means is that you now have the added burden of proving that the acquiesce was in some way justified before a competent court will even consider the merits of your jurisdictional claims. By the way, neither a over-abundance of work nor an under-abundance of competence are generally considered valid justifications.

I am repeating my demand for statute citations which support your claims. Proceeding in any way without providing this information is defined in the Administrative Procedures Act as depriving me of my rights under color of law. This is a federal crime (a felony), punishable under USC title 18 sections 241 and 242. Indictments under these federal statutes are against the individual. The sovereign immunity of the state can not be invoked when one acts under the mere color of law versus the actual authority of law. The state can not grant immunity from a federal crime. I am telling you this because I believe you would never intentionally commit a felony and want to save you from inadvertently doing so.

Frankly, Ms. Enwright, I think this whole matter is a waste of time and taxpayer dollars. I was discouraged to learn that it is not an isolated incident. Apparently the Department of Education has used this ruse to bully other home schooling parents into providing notification and thereby placing themselves and their children under the Department's jurisdiction. I understand that you are "just doing your job" in investigating the report. Remember, that was the defense used by the guards at Nazi prison camps. We citizens of New Hampshire expect better of our public servants. I expect better of you. Acknowledge this for what it is, one agency's attempt to coerce us into cooperating with their agenda. This, and all of the other cases like it, are not a matter of neglect, they are a matter of money and control.

We did not start this, but now, as a matter of principle, and to help save other parents from the distress caused by receiving a letter from your department, we will finish it. In both our May meeting, and subsequent conversations, I have reminded Mr. O'Neil that there is an established forum, known as a court, for the resolution of disputes such as ours. He and the Department of Education are apparently hesitant to enter such a forum. I am not.

If, for whatever reason, you do not drop this investigation, the next logical step will be a meeting between me and representatives from your legal staff in their offices. I am willing to demonstrate a good-faith effort to resolve this matter without taking it to court. I am not willing to waive any of my rights or status. You have not succeeded in satisfying the requirements of the Administrative Procedures Act. Perhaps they will do better.

I will close by thanking you for your courtesy in our dealings so far. While we may not always agree, I am glad we are able to deal with this matter without becoming disagreeable.

Sincerely,
L.S., without prejudice

Richard Meyers