State v. Shelley, 205 N.J. 320 (2011). Statutory interpretation questions pop up endlessly. In this case, defendant was accused of selling cocaine within 1,000 feet of a school, in violation of N.J.S.A. 2C:35-7, which criminalizes drug sales “while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.” He moved to dismiss the case on the ground that the “school” that he was near– The Goddard School for Early Child Development, one of a chain of childcare and development centers, which had a full-day, ten-student kindergarten class– was not in fact a “school” under the statute.
After his motion to dismiss was denied, defendant entered a conditional guilty plea but reserved the right to appeal the denial of his motion to dismiss. The Appellate Division reversed the lower court and vacated the conviction, holding that “the addition of a ten-student kindergarten to a pre-school child care center does not render the institution an ‘elementary school’ under the language of N.J.S.A. 2C:35-7.” The Supreme Court granted review and, by a 6-1 vote, affirmed that result. Justice LaVecchia wrote the majority opinion. Justice Rivera-Soto was the lone dissenter.
The majority found the statutory interpretation issue ambiguous, since neither “school” nor “elementary” were defined in the statute. There were differing dictionary definitions, including one relied on by Justice Rivera-Soto, but the Court concluded that dictionaries did not resolve the question. Given all that, Justice LaVecchia first invoked the rule of lenity, which dictates that ambiguities in criminal statutes that cannot be resolved by the statutory text or extrinsic aids are to be construed in favor of the defendant.
The Court then turned to the legislative history of the statute. In the drafting process, the Legislature had “progressively narrowed” the coverage of the statute, limiting school zones to “areas around elementary or secondary schools, rather than any school serving children ages eighteen and under,” as was earlier proposed. Indeed, an Official Commentary to the adopted bill stated that “[t]he definition of school property, however, does not include nursery, preschool or day care centers.” This showed that the Legislature did not intend “to ensnare persons close to day care centers that happen to include a private kindergarten class.” The “happenstance” that the Goddard School had the word “school” in its name did not change that result.
Finally, the legislative history showed an intent to protect “places where children congregate.” “The Legislature apparently did not consider nursery school students reasonably vulnerable to the ‘drug culture,’ presumably because such youthful children are constantly supervised and do not congregate outside the watchful eyes of parents and teachers.”
Justice Rivera-Soto relied on a dictionary definition that stated that an “elementary school” often includes kindergarten. He also noted the Court’s prior ruling that kindergarten is a constitutionally required part of a thorough and efficient education, and found it ironic that the Court would deny a kindergarten the protection of the statute at issue merely because it was not attached to a school serving higher grades. (The majority noted that it did not reach the issue of stand-alone kindergartens, a case not presented here). Finally, Justice Rivera-Soto emphasized that the Goddard School “unmistakably is identified by various large signs that identify it as a school– not as an academy or other place of instruction, but as a school.”
The majority has the better of this argument. The legislative history is clear. But if, according to Justice Rivera-Soto, a day care center at which there is kindergarten could be an “elementary school” for purposes of this statute, could a residence where home schooling occurs likewise qualify? One of the vagaries of the English language is that not every place where “schooling” occurs is a “school.” The Supreme Court of the United States recently observed that different forms of the same word, such as “person” and “personal,” do not necessarily have the same scope or mean the same thing.
The majority noted that the Legislature could amend the statute if the Court’s decision was not in accord with legislative intent. Justice Rivera-Soto went further, closing with a “plea” that the Legislature amend the law.