The opinion
NO. COA14-208
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
JOHN F. DONNELLY, JR.,
Petitioner/Appellant,
v. Iredell County
No. 13 CVS 848
UNIVERSITY OF NORTH CAROLINA,
BOARD OF GOVERNORS OF THE
UNIVERSITY OF NORTH CAROLINA, and
UNIVERSITY OF NORTH CAROLINA AT
CHAPEL HILL PUBLIC SAFETY
DEPARTMENT, Respondents/Appellees.
Appeal by petitioner from judgment entered on 4 November
2013 by Judge W. David Lee in Iredell County Superior Court.
Heard in the Court of Appeals 14 August 2014.
RECH LAW, P.C., by Kate A. Rech for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Matthew Tulchin, for respondent-appellee.
STEELMAN, Judge.
A decision by an administrative agency to indefinitely ban
petitioner from all University of North Carolina athletic
facilities did not violate petitioner’s First Amendment rights.
The ban was not arbitrary, capricious, or unsupported by
substantial evidence, and therefore did not violate N.C. Gen.
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Stat. § 150B-51. University officials did not misuse their power
to retaliate against petitioner.
I. Factual and Procedural Background
John Donnelly, Jr. (petitioner) graduated from the
University of North Carolina (UNC) in 1970 and has always been a
dedicated fan of the school’s sports teams. Petitioner
frequently attended UNC athletic events and volunteered as an
usher for the 2006 football season. From 2006 until December
2012, in a series of incidents, petitioner displayed
inappropriate behavior toward several UNC athletes and staff
members of the UNC Athletics Department. Petitioner was
reprimanded for his behavior several times prior to UNC imposing
upon him a lifetime ban from UNC athletic events. This appeal
arises from petitioner’s appeal of this ban.
Petitioner made sexually suggestive comments to female UNC
Athletics staff members, traveled to UNC women’s soccer matches
and appeared at the hotel where the players were staying and
harassed the players, and alienated fans by openly criticizing
players in front of their family members during the game while
serving as an usher and representative of UNC Athletics.
Petitioner also harassed staff members by repeatedly calling
various UNC Athletics offices up to 13 times per day.
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The events that led to the lifetime ban arise from an
incident that occurred in December 2012 at the Women’s Soccer
College Cup tournament in San Diego. Petitioner had previously
attempted to communicate with several female soccer players both
in person and via Facebook. At the Soccer College Cup,
petitioner found out which hotel the players were staying,
allegedly “because he won an autographed soccer ball and
couldn’t locate the head coach’s signature on the ball.”
Petitioner claims that he wanted to find the head coach so he
could locate his signature on the ball. The parents of the
players felt uncomfortable with petitioner’s uninvited presence
at the hotel, especially given his previous attempts to
communicate with several female players. Petitioner was asked to
leave, and did so.
As a result of petitioner’s persistent harassment of UNC
Athletics staff members and athletes, and history of
inappropriate behavior at athletic events, on 3 December 2012,
UNC issued a Notice of Trespass to petitioner. The Notice
prohibited petitioner from entering any area of UNC Athletic
Facilities at any time in the future. The Notice was sent to
petitioner via certified mail. One week later, George Hare
(Hare), Deputy Chief of the UNC Department of Public Safety,
called petitioner, explained the Notice of Trespass, and
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discussed the parameters of the restriction with petitioner.
Petitioner was informed of his right to appeal, and he exercised
that right.
On 7 March 2013, Hare issued a Final University Decision
denying petitioner’s appeal of the Notice of Trespass. On 4
April 2013, petitioner filed a Petition for Review of Final
Agency Decision, seeking judicial review of the University’s
decision in the Superior Court of Iredell County. On 4 November
2013, Judge Lee found that, “no substantial rights of the
petitioner have been prejudiced and that the final decision of
the University should be affirmed.”
Petitioner appeals.
II. First Amendment Rights
In his first argument, petitioner contends that the trial
court erred in affirming UNC’s indefinite ban from all athletic
facilities because UNC violated his First Amendment rights. We
disagree.
A. Standard of Review
(b) The court reviewing a final decision may
affirm the decision or remand the case for
further proceedings. It may also reverse or
modify the decision if the substantial
rights of the petitioners may have been
prejudiced because the findings, inferences,
conclusions, or decisions are:
(1) In violation of constitutional
provisions;
(2) In excess of the statutory
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authority or jurisdiction of the agency
or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a), 150B-
30, or 150B-31 in view of the entire
record as submitted; or
(6) Arbitrary, capricious, or an abuse
of discretion.
(c) In reviewing a final decision in a
contested case, the court shall determine
whether the petitioner is entitled to the
relief sought in the petition based upon its
review of the final decision and the
official record. With regard to asserted
errors pursuant to subdivisions (1) through
(4) of subsection (b) of this section, the
court shall conduct its review of the final
decision using the de novo standard of
review. With regard to asserted errors
pursuant to subdivisions (5) and (6) of
subsection (b) of this section, the court
shall conduct its review of the final
decision using the whole record standard of
review.
N.C. Gen. Stat. § 150B-51 (2013).
“Under a de novo review, the superior court ‘consider[s]
the matter anew[] and freely substitut[es] its own judgment for
the agency's judgment.’” Mann Media, Inc. v. Randolph Cnty.
Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quoting
Sutton v. N.C. Dep’t of Labor, 132 N.C. App. 387, 389, 511
S.E.2d 340, 341 (1999)). “When an appellate court reviews a
superior court order regarding an agency decision, ‘the
appellate court examines the trial court's order for error of
law. The process has been described as a twofold task: (1)
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determining whether the trial court exercised the appropriate
scope of review and, if appropriate, (2) deciding whether the
court did so properly.’” 356 N.C. at 14, 565 S.E.2d at 18.
B. Analysis
“The first inquiry a court must undertake when a First
Amendment claim is asserted is whether the plaintiff has engaged
in ‘protected speech’.” Goulart v. Meadows, 345 F.3d 239, 246
(4th Cir. 2003) (citing Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 797, 87 L.Ed.2d 567, 576 (1985)).
While it is well-recognized that the First Amendment protects
more than spoken or written word, the United States Supreme
Court has rejected “the view that an apparently limitless
variety of conduct can be labeled ‘speech’ whenever the person
engaging in the conduct intends thereby to express an idea.”
Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342 (1989)
(quoting United States v. O'Brien, 391 U.S. 367, 376, 20 L.Ed.2d
672 (1968)). “In deciding whether particular conduct possesses
sufficient communicative elements to bring the First Amendment
into play, we have asked whether “[a]n intent to convey a
particularized message was present, and [whether] the likelihood
was great that the message would be understood by those who
viewed it.” Id. (quoting Spence v. State of Wash., 418 U.S. 405,
410-11, 41 L.Ed.2d 842 (1974)).
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The United States Supreme Court has recognized that
students wearing black armbands to protest military involvement
in Vietnam, sit-ins to protest segregation, and picketing about
a wide variety of causes are behaviors that are protected by the
First Amendment. Id. (citing Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 505, 21 L.Ed.2d 731
(1969); Brown v. Louisiana, 383 U.S. 131, 141–42, 15 L.Ed.2d 637
(1966); United States v. Grace, 461 U.S. 171, 176, 75 L.Ed.2d
736 (1983)).
The Fourth Circuit held that harassment is not protected
speech. Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988)
(holding that a West Virginia statute prohibiting use of the
telephone to harass others did not violate the First Amendment,
as the statute required specific intent to harass, thus
indicating that the legislature sought to criminalize conduct
rather than speech by protecting citizens from harassment in an
evenhanded and neutral fashion).
We hold that petitioner has failed to demonstrate that he
engaged in any speech protected by the First Amendment.
Petitioner harassed athletes, the family members of athletes,
athletic staff members, and fans. This behavior is not protected
by the First Amendment. Therefore, we do not address
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petitioner’s argument that UNC athletic facilities are a public
forum.
This argument is without merit.
III. N.C. Gen. Stat. § 150B-51 Violations
In his second argument, petitioner contends that the trial
court erred in affirming UNC’s indefinite ban from all athletic
facilities because UNC’s decision was arbitrary, capricious, and
unsupported by substantial evidence, in violation of N.C. Gen.
Stat. § 150B-51. We disagree.
A. Standard of Review
As described in Section II A, above, the appropriate
standard of review for this argument is the whole record test.
“When utilizing the whole record test, however, the
reviewing court must examine all competent evidence (the “whole
record”) in order to determine whether the agency decision is
supported by substantial evidence.” Mann Media, Inc. v. Randolph
Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002)
(quoting ACT-UP Triangle v. Comm’n for Health Servs., 345 N.C.
699, 706, 483 S.E.2d 388, 392 (1997) (internal quotation marks
omitted).
B. Analysis
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An administrative ruling is deemed arbitrary and capricious
when it is “whimsical, willful[,] and [an] unreasonable action
without consideration or in disregard of facts or law or without
determining principle.” Ward v. Inscoe, 166 N.C. App. 586, 595,
603 S.E.2d 393, 399 (2004) (quoting Lenoir Mem. Hosp. v. N.C.
Dep’t of Human Res., 98 N.C. App. 178, 181, 309 S.E.2d 448, 450
(1990)). When a court applies the whole record test, it must
determine whether there is substantial evidence to justify the
agency’s decision. In re Lustgarten, 177 N.C. App. 663, 670, 629
S.E.2d 886, 890-91 (2006). Substantial evidence is “relevant
evidence a reasonable mind might accept as adequate to support a
conclusion.” Id.
UNC’s decision to ban petitioner from all athletic
facilities indefinitely was not arbitrary, capricious, nor was
it unsupported by substantial evidence. A decision by an
administrative agency is arbitrary and capricious if it clearly
lacked fair and careful consideration. Bio-Med. Applications of
N. Carolina, Inc. v. N. Carolina Dep't of Human Res., Div. of
Facility Servs., Certificate of Need Section, 136 N.C. App. 103,
111, 523 S.E.2d 677, 682 (1999).
UNC’s decision was based on a series of incidents over a
number of years where petitioner engaged in inappropriate
behavior toward UNC athletes, the family members of athletes,
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athletic staff members, and fans. This was not the first time
that petitioner was reprimanded for this type of behavior. The
Final University Decision summarizes a long series of events
which led to the indefinite ban. It is clear that UNC’s decision
was not an “unreasonable action without consideration or in
disregard of facts,” nor did the decision lack “relevant
evidence a reasonable mind might accept as adequate to support a
conclusion.”
Petitioner also argues that UNC violated N.C. Gen. Stat. §
150B-51 because UNC officials did not follow the procedure set
forth in the Department of Public Safety’s General Order on
trespass warnings. The General Order states that:
I. Trespass Warning
A. After determining that a person has no
legitimate business or education purpose in
a University facility or on University
property, a formal “Notice of Trespass,”
which is valid indefinitely, may be issued.
The Notice should be precise enough to
alleviate any question as to the specific
restrictions being imposed.
B. The information contained in the “Notice
of Trespass” should be read to the offender.
Any questions from the offender should be
answered if possible. Issuance of the notice
should be witnessed by another officer. The
notice should be signed by the violator or
“Refused” should be written by the officer
if the violator doesn’t cooperate.
II. Right of Appeal
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The offender should be informed of his/her
right of appeal.
UNC determined petitioner had no legitimate business or
educational purpose on university property due to his pattern of
inappropriate behavior and issued a Notice of Trespass that
clearly stated the restrictions imposed. The information
contained in the Notice was discussed with petitioner via
telephone and sent via certified mail. Petitioner was also
informed of his right to appeal.
Petitioner argues that because four lines on the Notice of
Trespass were left blank (date, time, witness name, and witness
signature), UNC officials did not follow proper procedure. This
Court has stated that:
In determining the mandatory or directory
nature of a statute, the importance of the
provision involved may be taken into
consideration. Generally speaking, those
provisions which are a mere matter of form,
or which are not material, do not affect any
substantial right, and do not relate to the
essence of the thing to be done so that
compliance is a matter of convenience rather
than substance, are considered to be
directory.
State v. Inman, 174 N.C. App. 567, 570, 621 S.E.2d 306, 309
(2005) (quoting State v. House, 295 N.C. 189, 203, 244 S.E.2d
654, 661–62 (1978)).
Petitioner’s argument is based on provisions of the General
Order that are a mere matter of form, are not material, and do
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not affect any substantial right. The procedure set forth in the
General Order is based on the assumption that there will be
immediate, on-site removal of trespassers. In the instant case,
the events leading up to a Notice of Trespass being issued
against petitioner occurred off-site, at a soccer tournament in
California. UNC made minor, but necessary, changes to its normal
procedure to accommodate the nature of this particular incident.
Nonetheless, UNC substantially complied with the goals of the
General Order. The goals of the General Order are to inform the
trespasser of the restrictions imposed upon him and inform him
of his right to appeal. Both of these goals were met.
Any procedural error committed by UNC officials was
therefore harmless and immaterial.
This argument is without merit.
IV. Retaliation Claim
In his third argument, petitioner contends that UNC’s
indefinite ban was an abuse of discretion because officials
misused their power to retaliate against petitioner. We
disagree.
A. Standard of Review
As described in Section II A, above, the appropriate
standard of review for this argument is the whole record test.
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“When utilizing the whole record test, however, the
reviewing court must examine all competent evidence (the “whole
record”) in order to determine whether the agency decision is
supported by substantial evidence.” Mann Media, Inc. v. Randolph
Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002)
(quoting ACT-UP Triangle v. Comm’n for Health Servs., 345 N.C.
699, 706, 483 S.E.2d 388, 392 (1997) (internal quotation marks
omitted).
B. Analysis
Petitioner argues that the case of Trulock v. Freeh is
applicable to the instant case. Trulock v. Freeh is a Fourth
Circuit case involving a former Department of Energy official
who wrote a magazine article charging the government with
incompetence for their handling of alleged security breaches at
weapons laboratories. Trulock v. Freeh, 275 F.3d 391, 397 (4th
Cir. 2001). In that case, the court held that because “The First
Amendment guarantees an individual the right to speak freely,
including the right to criticize the government and government
officials,” public officials are “prohibited from retaliating
against individuals who criticize them.” Id. at 404.
The issues in the instant case do not parallel the issues
in the case petitioner cites for this argument. The instant case
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does not involve the criticism of governmental officials.
Therefore, Trulock v. Freeh is not controlling, nor do we find
it to be persuasive authority.
This argument is without merit.
AFFIRMED.
Judge GEER concurs.
Judge HUNTER, Robert N., Jr. concurs in result.
NO. COA14-208
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
JOHN F. DONNELLY, JR.,
Petitioner/Appellant,
v. Iredell County
No. 13 CVS 848
UNIVERSITY OF NORTH CAROLINA,
BOARD OF GOVERNORS OF THE
UNIVERSITY OF NORTH CAROLINA, and
UNIVERSITY OF NORTH CAROLINA AT
CHAPEL HILL PUBLIC SAFETY
DEPARTMENT,
Respondents/Appellees.
HUNTER, JR., Robert N., Judge, concurring in the result.
While I concur with the majority’s result, I am troubled
that the majority only briefly references United States v.
O’Brien, 391 U.S. 367 (1968) without applying all four prongs of
the test announced in that case.
Under the First Amendment and the North Carolina
Constitution, speech is given broad protections, save for
certain exceptions. See United States v. Stevens, 559 U.S. 460,
468 (2010) (holding that “obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct” are
exceptions that do not receive First Amendment protections
(internal citations omitted)); Ashcroft v. American Civil
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Liberties Union, 535 U.S. 564, 573 (2002) (“[A]s a general
matter, the First Amendment means that government has no power
to restrict expression because of its message, its ideas, its
subject matter, or its content.” (citation and quotation marks
omitted)); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50,
54 (1988) (“At the heart of the First Amendment is the
recognition of the fundamental importance of the free flow of
ideas and opinions on matters of public interest and
concern. . . . Of course, this does not mean that any speech
about a public figure is immune from sanction in the form of
damages.”); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,
383–84 (1992) (holding that exceptions to the First Amendment
include, but are not limited to, obscenity, threats, and
communications that incite lawless action); see also N.C. Const.
art. I, § 14.
Conduct, however, may be regulated, as “[i]t has never been
deemed an abridgment of freedom of speech or press to make a
course of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.” Hest Technologies, Inc. v.
State ex rel. Perdue, 366 N.C. 289, 296, 749 S.E.2d 429, 435
(2012), cert. denied, ___ U.S. ___, 134 S. Ct. 99 (2013)
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(quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456
(1978)).
The majority opinion cites the O’Brien test, which
recognized that in some cases there is not a clear distinction
between speech and conduct. O’Brien concerned a man who
intentionally and illegally burned his draft card, but did so as
a form of protest against the draft. 391 U.S. at 369–70. The
Court explained that “when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can
justify incidental limitations on First Amendment freedoms.”
Id. at 376 (emphasis added). The United States Supreme Court
then articulated a four-prong test to determine whether
government regulation of a course of conduct involving speech is
constitutional:
[1] a government regulation is sufficiently
justified if it is within the constitutional
power of the Government; [2] if it furthers
an important or substantial governmental
interest; [3] if the governmental interest
is unrelated to the suppression of free
expression; and [4] if the incidental
restriction on alleged First Amendment
freedoms is no greater than is essential to
the furtherance of that interest.
Id. at 377.
Here, it is essential to explain why Donnelly’s actions
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should be considered conduct and not speech, thus bringing his
actions under the O’Brien standard. This case provides a prime
example of the gray area between speech and conduct and thus
application of all four O’Brien factors is appropriate.
Although some of Donnelly’s individual actions, such as sending
an e-mail or making a phone call may be classified as speech,
Donnelly’s repeated calls, suggestive and inappropriate
comments, and other actions combine to become harassing conduct.
Taken together, Donnelly’s actions constitute a “course of
conduct,” and O’Brien applies.
The power of UNC officials to regulate harassment on campus
satisfies the first two prongs of the O’Brien test as it is (i)
within the power and (ii) in the interest of UNC administrators
to provide a safe environment for students. While UNC is
preventing Donnelly from engaging in his free speech rights at
future UNC athletic events, record evidence shows that (iii) UNC
is seeking to protect its students and employees from his
harassing and inappropriate behavior instead of intending to
quash Donnelly’s right to speak freely. Under the fourth and
final prong, (iv) the restriction placed on Donnelly is not
greater than is essential to promote UNC’s legitimate interest.
The University previously disciplined Donnelly to a lesser
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extent and notified him of the inappropriateness of his
behavior, but these measures failed to stop Defendant’s
harassing behavior. For these reasons, the actions of UNC
administrators against Donnelly satisfy all four criteria of the
O’Brien test and Donnelly’s behavior is not protected by the
First Amendment.