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16 286 NEBRASKA REPORTS

treatment or categorizations that may follow from the workers’ 

compensation scheme will not always result in mathematical 

niceties and, in some circumstances, may lead to inequality.51

But this does not make the Act unconstitutional. The Estate 

has failed to sustain its burden52 of establishing the unconstitutionality of the Act under the equal protection, due process, 

special legislation, or right-to-jury provisions of the U.S. and 

Nebraska Constitutions.

VI. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of the Estate’s complaint. The Estate must seek compensation from the employer for Teague’s death exclusively from 

the Workers’ Compensation Court.

Affirmed.

Cassel, J., not participating.

51 See Otto v. Hahn, supra note 35.

52 See, e.g., State ex rel. Bruning v. Gale, 284 Neb. 257, 817 N.W.2d 768 

(2012).

State of Nebraska, appellant, v. 

Eric C. Thacker, appellee.

State of Nebraska, appellant, v. Gail

L. Morgan-Thacker, appellee.

___ N.W.2d ___

Filed May 31, 2013. Nos. S-12-895, S-12-896.

1. Statutes. Statutory interpretation presents a question of law.

2. Appeal and Error. An appellate court reviews questions of law independently of 

the lower court.

3. Criminal Law: Statutes: Appeal and Error. It is a fundamental principle of 

statutory construction that courts strictly construe penal statutes, and it is not 

for the courts to supply missing words or sentences to make clear that which is 

indefinite, or to supply that which is not there.

4. Criminal Law: Statutes: Legislature: Intent. A court gives penal statutes a 

sensible construction, considering the Legislature’s objective and the evils and 

mischiefs it sought to remedy.
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STATE v. THACKER 17

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5. Criminal Law: Statutes. A court will not apply a penal statute to situations or 

parties not fairly or clearly within its provisions.

6. ____: ____. Ambiguities in a penal statute are resolved in the defendant’s favor.

7. Schools and School Districts: Parent and Child. Neb. Rev. Stat. § 79-201(2) 

(Cum. Supp. 2010) does not require parents to enroll their child in a legally 

recognized school until they obtain the State’s recognition of an exempt 

homeschool.

8. Words and Phrases. The word “or,” when used properly, is disjunctive.

9. Schools and School Districts: Time. Under Neb. Rev. Stat. § 79-201(2) (Cum. 

Supp. 2010), an exempt school’s ability to complete the minimum instruction 

hours is the only timing requirement imposed upon an exempt school’s calendar year.

Appeals from the District Court for Dawson County, James

E. Doyle IV, Judge, on appeal thereto from the County Court 

for Dawson County, Carlton E. Clark, Judge. Exceptions 

overruled.

Michael R. Johnson, Deputy Dawson County Attorney, for 

appellant.

Mark R. McKeone, of Mark R. McKeone, P.C., L.L.O., and 

Michael P. Farris and Peter K. Kamakawiwoole, Jr., of Home 

School Legal Defense Association, for appellees.

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, 

and Cassel, JJ.

Connolly, J.

SUMMARY

Eric C. Thacker and Gail L. Morgan-Thacker (collectively 

the Thackers) sought to homeschool their children but did 

not obtain state recognition of their homeschool until October 

2011. They did not enroll their five children in any legally 

recognized school before then. In a joint trial, the county court 

convicted Eric and Gail individually of five misdemeanor 

counts—one for each child—for violating Nebraska’s compulsory education statute.1

 The county court convicted the 

Thackers of violating the statute from August 17, 2011 (when 

the public school calendar year began), to October 4 (when 

1 See Neb. Rev. Stat. § 79-201 (Cum. Supp. 2010).
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18 286 NEBRASKA REPORTS

the State received notice that the Thackers would homeschool 

their children). After consolidating the Thackers’ appeals, the 

district court reversed. The State has appealed under Neb. Rev. 

Stat. § 29-2315.01 (Reissue 2008), asking for a decision to 

provide precedent under § 79-201 for future cases.

The State contends that § 79-201 required the Thackers to 

ensure that their children attended a legally recognized school 

every day of that school’s calendar year until their request to 

operate a homeschool became effective. The Thackers contend 

that Nebraska’s statutes and regulations required them to do 

only two things: (1) have their children attend their homeschool every day that it was in session; and (2) complete the 

minimum required hours of instruction by June 30, 2012, the 

end of the school year.

We conclude that § 79-201 did not criminalize the Thackers’ 

failure to enroll their children in a legally recognized school 

pending the State’s recognition of their homeschool. We overrule the State’s exceptions.

BACKGROUND

In March 2011, the Thackers moved to Farnam, Nebraska, 

from New Jersey. Farnam is in the Eustis-Farnam Public 

Schools district. In 2011, the public school calendar year 

started on August 17. The principal of the public school 

learned about the Thackers in March. After a couple of weeks, 

when the family did not enroll their children in school, he contacted the county attorney.

In April 2011, a sheriff’s officer contacted Eric about the 

children’s not being in school. Eric told the officer that he 

and Gail were homeschooling their children but that they 

had finished the curriculum for their 2010-11 school year 

before they moved to Farnam. The officer informed Eric 

that they must file paperwork with the State and contact 

the school district or that they could be violating the law. 

Eric then contacted the principal, who told Eric that they 

must file paperwork with the Department of Education (the 

Department) over the summer if they intended to homeschool 

their children. The Thackers did not enroll their children in 

public school. Around the middle of September, the principal 
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STATE v. THACKER 19

Cite as 286 Neb. 16

wrote the county attorney that the children were not enrolled 

in public school.

Gail testified that after the family moved to Farnam, Eric 

received a job offer in Kentucky and they believed they would 

be moving there at the end of September 2011. Instead, Eric 

received a promotion at his job in North Platte, Nebraska, 

and the Thackers planned on homeschooling. Based on their 

religious objections, they applied to the Department for an 

exemption from state approval and accreditation requirements 

for schools. Gail said that they sent in the paperwork to the 

Department about the end of September but that the envelope 

was returned because she had not addressed it properly; she 

resent the envelope. Their signatures on the forms were notarized on September 27, 2011.

The Commissioner of Education acknowledged receipt of 

the Thackers’ documents on October 6, 2011. On the same 

day, the commissioner sent a report to all public school superintendents listing the parents from whom the commissioner 

had received the required forms for homeschooling by October 

4. The report stated that the commissioner recognized the 

Thackers’ homeschool as of October 6. Gail testified that they 

planned to start homeschooling on November 14. On October 

11, the State charged the Thackers with violating § 79-201 

from August 17 through October 4.

At trial, the Thackers argued that they did not violate 

§ 79-201 because their children had attended their exempt 

homeschool each day that it was in session. They argued that 

the State had not proved they could not complete the minimum hours of instruction required by state law before June 

30, 2012 (the end of the school year). Gail testified that they 

started their homeschool on November 7, 2011, and that they 

could complete the required hours before June 30, 2012. But 

the State argued that until an exempt school is in session and 

conducting classes, the children must be enrolled in some type 

of legally recognized school, and that the Thackers’ children 

were not.

The county court found that the Thackers could complete the 

required hours by the end of the school year. But it determined 

that they were guilty of violating § 79-201 from August 17 to 
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20 286 NEBRASKA REPORTS

October 4, 2011. The Thackers appealed to the district court, 

which consolidated their appeals.

The district court reversed the decisions and remanded the 

causes with instructions for the county court to vacate the 

Thackers’ convictions and sentences. The court concluded that 

for the first year of operation, the statutes and regulations 

required only that the Thackers begin the operation of their 

homeschool so that they could complete the required minimum hours of instruction by June 30, 2012. The Department’s 

regulations set June 30 as the end of the school year for the 

Thackers’ homeschool. The court concluded that the Thackers 

were not required to enroll their children in the public schools 

pending the start of their exempt homeschool. It further concluded that the Thackers’ compliance with § 79-201 was not 

controlled by whether they had enrolled their children in an 

exempt school by the start date for the public school calendar 

year. Because the county court had found that the Thackers 

could complete the required minimum hours of instructions, 

the district court reversed.

ASSIGNMENTS OF ERROR

The State assigns, restated, that the district court erred 

as follows:

(1) determining that § 79-201 does not require parents to 

ensure that their school-age children attend a state approved or 

accredited school until the parents obtain an exemption;

(2) determining that Neb. Rev. Stat. § 79-1601(3) (Cum. 

Supp. 2012) does not establish the “effective” date of a parent’s election statement as the date it is received by the 

Commissioner of Education; and

(3) determining that the evidence admitted at trial was insufficient to support the convictions.

STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law.2 We 

review questions of law independently of the lower court.3

2 See State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).

3 See State v. Bree, 285 Neb. 520, 827 N.W.2d 497 (2013).
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ANALYSIS

The State contends that § 79-201 presumes students will be 

enrolled in and attending a public school until a parent enrolls 

his or her child in a different school that the State recognizes. 

It concedes that § 79-201 allows parents to educate their children in other types of legally recognized schools. But it argues 

that until a parent obtains the State’s recognition of a private 

homeschool, the child must be attending some legally recognized school during the public school calendar year. And it 

argues that under § 79-1601(3), the State’s recognition of a private homeschool is not effective until the Department receives 

a parent’s notarized statement of intent.

The Thackers contend that § 79-201 only required them to 

have their children attend their exempt homeschool every day 

that it was in session and to complete the minimum hours of 

instruction required by law. They argue that Nebraska’s statutes do not preclude them from starting a homeschool after 

the public school calendar year begins or compel them to 

enroll their children in a public school until their homeschool 

begins operation.

We agree with the Thackers. We view the State’s argument 

through the prism of statutory construction principles that 

apply to penal statutes.

[3-6] It is a fundamental principle of statutory construction 

that we strictly construe penal statutes, and it is not for the 

courts to supply missing words or sentences to make clear 

that which is indefinite, or to supply that which is not there.4

We give penal statutes a sensible construction, considering 

the Legislature’s objective and the evils and mischiefs it 

sought to remedy.5 We will not apply a penal statute to situations or parties not fairly or clearly within its provisions.6

So, ambiguities in a penal statute are resolved in the defendant’s favor.7

4 See State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).

5 See State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).

6 See Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 

N.W.2d 75 (2009).

7 See State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
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22 286 NEBRASKA REPORTS

Under Neb. Rev. Stat. § 79-210 (Reissue 2008), a person violating a compulsory education statute8

 is guilty of a 

Class III misdemeanor. As stated, the State charged Eric and 

Gail with five counts each of violating § 79-201. Section 

79-201(2), in relevant part, provides the following:

[E]very person residing in a school district within the 

State of Nebraska who has legal or actual charge or control of any child who is of mandatory attendance age or is 

enrolled in a public school shall cause such child to enroll 

in, if such child is not enrolled, and attend regularly a 

public, private, denominational, or parochial day school 

which meets the requirements for legal operation prescribed in Chapter 79, or a school which elects pursuant 

to section 79-1601 not to meet accreditation or approval 

requirements, each day that such school is open and in 

session, except when excused by school authorities or 

when illness or severe weather conditions make attendance impossible or impracticable.

(Emphasis supplied.)

Section 79-1601 sets out the requirements for obtaining 

an exemption from state approval and accreditation requirements for schools. Under § 79-1601(3), an election to operate an exempt school is effective when the Commissioner of 

Education receives a signed statement from the parents or legal 

guardians of all attending students that provides the following 

information: (1) their reason for electing not to educate their 

child at a state accredited or approved school; and (2) their 

commitments that an authorized representative of the parents 

or legal guardians will submit information to prove that, generally, the school will meet the requirements for basic skills 

instruction in specified subjects.

This filing requirement applies to any private, denominational, or parochial school that “elects not to meet state 

accreditation or approval requirements.”9 Private, unaccredited 

8 See Neb. Rev. Stat. §§ 79-201 to 79-210 (Reissue 2008, Cum. Supp. 2010 

& Supp. 2011).

9 § 79-1601(3).
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STATE v. THACKER 23

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schools include homeschools.10 If the parent representative 

does not provide the required information, or if any other 

requirements for obtaining exempt status are not met, the 

Department will notify the school district in which an attending 

child resides that the child is not attending an exempt school 

under § 79-201.11

The State contends that this filing requirement for exempt 

schools and other notification statutes support its position that 

parents must enroll their children in public school until they 

obtain State recognition of an exempt school (one that is not 

subject to accreditation or approval requirements). It argues 

that school districts have the duty to enforce the compulsory 

education statutes. And it argues that the notice requirements in 

Nebraska’s statutes allow the superintendents of public school 

districts to track whether a child in their district is or is not 

attending a legally recognized school.

We agree that school districts have a duty to enforce school 

attendance requirements and that notice requirements help 

superintendents track children’s school attendance in their 

districts.12 For example, each school must provide the public school superintendent with the children’s names who are 

enrolled in their school and the names of any children who 

enter or withdraw from the school during the school session. 

This information is required so the superintendent can enforce 

§ 79-201.13 And, as stated, the Department will notify a school 

district about any children who are not attending a recognized 

exempt school.14

[7] But under the law as written, we do not agree that a child 

must be attending a recognized exempt school each day of the 

public school calendar year. Nor do we read § 79-201(2) as 

requiring parents to enroll their child in a legally recognized 

school until they obtain the State’s recognition of an exempt 

10 See, generally, 92 Neb. Admin. Code, chs. 12 and 13 (2010).

11 Id., ch. 13, § 006.

12 See §§ 79-206, 79-208, and 79-209.

13 See §§ 79-205 and 79-207.

14 See 92 Neb. Admin. Code, ch. 13, § 006.
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24 286 NEBRASKA REPORTS

homeschool. Instead, § 79-201(2) provides that a child must 

“attend regularly a public, private, denominational, or parochial day school . . . or a school which elects pursuant to 

section 79-1601 not to meet accreditation or approval requirements, each day that such school is open and in session.” 

(Emphasis supplied.)

[8] The word “or,” when used properly, is disjunctive.15

So the requirement in § 79-201(2) that a child attend school 

regularly “each day that such school is open and in session” 

refers to alternative school choices. That is, a child’s required 

attendance at “such school” refers to a school subject to state 

accreditation or approval requirements or an exempt school not 

subject to such requirements.

And § 79-201(2) does not make the start of the public 

school calendar year the default start date for other schools. 

Nor does it provide that a child must attend a legally recognized school each day of the public school year. The State’s 

interpretation could have unintended consequences for private 

and parochial schools that operate on a different calendar year 

than their respective public school district. To the extent that 

§ 79-201(2) is ambiguous whether a child must be enrolled 

and attending a legally recognized school until the State recognizes an exempt private school, we construe that ambiguity 

against the State.

Furthermore, the Department’s regulations do not require 

parents to ensure that their child attends a legally recognized 

school each day of the public school year. Neb. Rev. Stat. 

§ 79-318(5)(c) (Cum. Supp. 2010) authorizes the Department 

to establish the standards and procedures for exempt schools 

under § 79-1601. The Department’s chapter 13 regulations—

for exempt schools established because of a parent’s religious 

objections to the State’s accreditation requirements—define a 

“school year” as “the period of instruction between July 1 and 

the following June 30.”16 But nothing in Nebraska’s statutes or 

15 Liddell-Toney v. Department of Health & Human Servs., 281 Neb. 532, 

797 N.W.2d 28 (2011).

16 92 Neb. Admin. Code, ch. 13, § 002.04.
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STATE v. THACKER 25

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regulations sets a deadline for the filing requirement in the first 

year of an exempt school’s operation.

It is true that § 79-1601(6) clarifies that if a school fails to 

comply with the exemption procedures, there could be criminal 

consequences for a child’s parent or legal guardian:

Any school which elects not to meet state accreditation 

or approval requirements and does not meet the requirements of subsections (2) through (6) of this section 

shall not be deemed a school for purposes of section 

79-201, and the parents or legal guardians of any students attending such school shall be subject to prosecution pursuant to such section or any statutes relating to 

habitual truancy.

But neither Nebraska’s statutes nor the Department’s regulations set out a deadline for an exempt school to begin 

operations. The regulations require only that a notarized statement from an exempt school’s parent representative be filed 

“[t]hirty days prior to the date on which the exempt school is 

to begin operation, and annually thereafter by July 15 . . . .”17

So although the regulations set a filing deadline for an exempt 

school’s second year of operation, they conspicuously omit a 

filing deadline for the first year.

The only timing requirement for an exempt school’s calendar year is imposed by the Department’s regulations for minimal instruction hours:

Prior to the date that the exempt school begins operation, and annually thereafter by July 15, the parent representative will submit to the Commissioner or designee 

the following:

004.01 A calendar for the school year indicating 

a minimum instruction of 1,080 hours in secondary 

schools and 1,032 hours in elementary schools. During 

the first year of operation, the days of instruction may 

be prorated based upon the remaining balance of the 

school year.18

17 Id., § 003.02A.

18 Id., § 004.
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[9] Arguably, the regulation’s reference to prorating days 

of instruction could be read to imply that the student has 

already completed some days of instruction. As stated, 

§ 79-318(5)(c) authorizes the Department to establish the standards and procedures for exempt schools. But we will not 

interpret the Department’s regulations to impose a requirement 

that carries criminal consequences when that requirement is 

not clearly imposed under the governing statute. So the district 

court correctly determined that under § 79-201(2), an exempt 

school’s ability to complete the minimum instruction hours is 

the only timing requirement imposed upon an exempt school’s 

calendar year.

We recognize that at some point in the school year, an 

exempt homeschool would begin operations too late. That 

is, it could not reasonably prorate the required instructional 

hours in the remaining days if the students had not previously completed some instruction hours in a legally recognized 

school. But we need not decide when in the school year that 

point occurs. Here, the county court specifically found that 

the Thackers could complete the required instructional hours 

in the school year. Because the State did not show that the 

Thackers could not meet the only timing requirement imposed 

on their homeschool’s operation, the district court correctly 

reversed the county court’s decisions and remanded the causes 

with instructions for the county court to vacate the convictions 

and sentences.

Exceptions overruled.

McCormack, J., participating on briefs.