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Panel: College’s police force violates First Amendment

By SYLVIA ADCOCK, Staff Writer

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It’s not every day that First Amendment issues get raised in a drunk-driving case.

But last week the Court of Appeals threw out a DWI case involving an arrest by a Davidson College police officer, agreeing with the defense that Davidson is a religious institution and giving police powers to the school is unconstitutional.

“We hold that the delegation of police power to Davidson College … is an unconstitutional delegation of ‘an important discretionary governmental power’ to a religious institution in the context of the First Amendment,” Judge James A. Wynn Jr. wrote in a unanimous opinion before his departure to the Fourth Circuit Court of Appeals.

The case is State v. Yencer (Lawyers Weekly No. 10-07-0815, 11 pp.), reversing a suppression-motion ruling from Mecklenburg County Superior Court.

Davidson College is affiliated with the Presbyterian Church, and a number of other private colleges in North Carolina are church-affiliated.

It was unclear what effect the opinion would have on other cases brought by police departments on those campuses, but two days after the opinion was filed, the state Attorney General’s Office said it would not only appeal, it planned to ask the N.C. Supreme Court to stay the effect of the opinion.

Allen Brotherton, who represented the defendant, said he thinks the opinion should have an impact on the way campus police departments on all church-affiliated schools in the state operate.

“The opinion reaffirms that religiously-affiliated colleges cannot be given arrest powers,” said Brotherton, of Knox, Brotherton, Knox & Godfrey in Charlotte. “It’s all about the delegation of police powers to a religious institution.”

But the appellate panel, while ruling unanimously, urged further review by the state Supreme Court, saying it was bound by a precedent – State v. Pendleton, 339 N.C. 379 (1994) – in which the Supreme Court found that Campbell University was a religious institution, and that a predecessor of the current law on campus police powers was unconstitutional as applied.

The appeals court urged the Supreme Court to grant discretionary review of the case if sought, saying it would be able to give the matter a look without “the constraints placed on this panel by Pendleton.”

In a statement last week, Davidson officials said the Attorney General’s Office notified the college the day after the opinion came down and told them there would be no immediate change in the status of the college’s police officers.

“We are analyzing the Court’s opinion to determine its full implications,” the college said in a statement.

The case stems from the defendant’s arrest in January 2006 on charges of driving while impaired and reckless driving after she was stopped by a Davidson College police officer.

She pled guilty in Mecklenburg County District Court and then filed written notice of appeal to Superior Court, where she filed a pretrial motion to suppress evidence from the stop and seizure.

At the suppression-motion hearing, Brotherton raised the First Amendment issues.

All the members Davidson’s police force are commissioned as police officers under G.S. § 74G (2009), which says the state Attorney General can certify a private nonprofit institution of higher education as a campus police agency and can commission individuals as a campus police officers.

Brotherton presented evidence that Davidson was affiliated with the Presbyterian Church and called Davidson officials, including the campus pastor, to testify about the college’s relationship with the church and religion-based requirements for students.

He argued that the officer’s exercise of police power violated the excessive-entanglement prohibitions of the Establishment Clause of the First Amendment as well as Art. I, §§ 13 and 19 of the N.C. Constitution.

The trial court denied the motion to suppress, saying that “although Davidson College is religiously affiliated, it is not a religious institution within the meaning of the First Amendment.”

The appeals court disagreed, saying it was bound by the Pendleton case, which held that a predecessor of G.S. § 7G was unconstitutional as applied.

In that case, Campbell University was held to be a religious institution, with the court noting that Campbell’s mission was to “provide students with a Christian world view,” and its statement that it “is a Baptist university.”

In a similar Court of Appeals case, the court relied on Pendleton and found that Pfeiffer University was a religious institution as well.

The appeals court in the case at hand noted that the control of Davidson is vested in the board of trustees. Of the 44 trustees, 24 must be active members of the Presbyterian Church and 80 percent must be active members of a Christian church.

“We are compelled to conclude that Davidson College is a religious institution,” Judge Wynn wrote.

But the court also noted that if it were not bound by the precedent in Pendleton, there is evidence that would tend to show that Davidson is not a religious institution.

The court cited the U.S. Supreme Court’s ruling in a case involving four church-related colleges and universities in Connecticut. In that case, the court noted significant differences between religious aspects of church-related post-secondary schools and parochial elementary and secondary schools, and ruled that government grants to church-affiliated post-secondary schools for the construction of buildings for secular purposes did not violate the First Amendment.

“Davidson College is primarily an educational institution with well-established principles of academic freedom and religious tolerance,” Judge Wynn wrote.

Brotherton said he believes he can win an appeal. He said that the U.S. Supreme Court case cited to encourage review, Tilton v. Richardson, 403 U.S. 672 (1971), supports his position.

While approving a statute establishing state grants for construction at religiously affiliated colleges because the colleges were not pervasively sectarian and the use of state-funded buildings was strictly controlled, Tilton also struck as unconstitutional a severable provision of that statute allowing unfettered use of the buildings after 20 years of restriction.

Said Brotherton, “In other words, the affiliated colleges were seen as ‘religious institutions’ even though they had a secular education mission, such that discretionary use of government funding was unconstitutional.”


Case name: State v. Yencer

Court: N.C. Court of Appeals

Judges: Judge James A. Wynn Jr.; Judges Donna S. Stroud and Cheri Beasley concurring

Date: Aug. 17, 2010

Appellee’s attorney: Special Deputy Attorney General Hal F. Askins and Assistant Attorney General Tamara Zmuda (Raleigh)

Defendant-appellant’s attorney: Allen Brotherton of Knox, Brotherton, Knox & Godfrey (Charlotte)

Issue: (1) Is Davidson College a religious institution within the meaning of the First Amendment, and (2) if so, is the state’s delegation of police powers to the campus police department constitutional?

Holding: (1) Yes, Davidson College is a religious institution within the meaning of the First Amendment. (2) No, the delegation of state police powers violates the excessive-entanglement provision.

Noteworthy: The court was clearly uncomfortable with its own ruling. Although the decision was unanimous, the panel urged a discretionary review by the Supreme Court, saying it was bound by precedent.

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