Petition for Writ of Certiorari — North Carolina v. Pendleton

Supreme Coun, U.S.

FILED

No, 9 4167 6 APR 1 31995

CFRICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

STATE OF NORTH CAROLINA,

Petitioner,

v.

ALAN HOWARD PENDLETON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NORTH CAROLINA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

MICHAEL F. EASLEY

Attorney General

Valérie B. Spalding

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

Telephone 919-733-3109

Attorney for Petitioner

PE EOE IN ORO REE Dom ers Re Np oe " — -

moe oN Sane PRS SENT r SRM aA

QUESTION PRESENTED

MAY A PRIVATE RELIGIOUSLY AFFILIATED UNI-

VERSITY BE STRIPPED OF ITS POLICE PROTECTION--

STATUTORILY OFFERED AS A NEUTRAL BENEFIT

TO ALL--BY NECESSARILY RIGID ADHERENCE TO

AN HISTORICALLY AND LOGICALLY INAPPOSITE

TEST?

ii

TABLE OF CONTENTS

ss 8 Rs ys i

TABLE OF AUTHORITIES ..........2.00.- ili

aS igs ww @ 6 bs + 6 4 eo 8 2

EES er ee eee 2

CONSTITUTIONAL AMENDMENT AND

UPR UPREEE PUPVEREUTD 6 ee te eee 3

STATEMENT OF THE CASE ............... 4

REASONS WHY THE WRIT SHOULD ISSUE .... 7

I. The supreme court’s Pendleton

decision epitomizes the diffi-

culties inherent in applying the

aS eh ey Oe oe we 7

Il. The supreme court’s Pendleton

opinion aptly justifies the criti-

cisms levelled at the Lemon

TABLE OF AUTHORITIES

CASES

Aguilar v. Felton, 473 U.S. 402 (1985) .....

Allegheny County v. Greater

Pittsburgh ACLU, 492 U.S. 573 (1989) .....

Board of Educ. of Kiryas Joel v. Grumet,

_ U.S. 565. Ce. 208) CQ iw ww te

Bowen v. Kendrick, 487 U.S. 589 (1988) ....

Committee for Public Education v. Nyquist,

Ce We Te ee hs sh 2 oe Aes

Corporation of Presiding Bishop v. Amos,

Te a wo tank pews ee ck

Edwards v. Aguillard, 482 U.S. 578 (1987) ...

Grand Rapids School District v. Bail,

Cre Was Be ee es hes ee ck eed

Hunt v. McNair, 413 U.S. 734 (1973) .....

Lamb’s Chapel v. Center Moriches,

pee? See ts ee eee

Larkin v. Grendel’s Den, Inc.,

ee ey Se a oe ee ee ee

iV

Larson v. Valente, 456 U.S. 228 (1982) ......... 13

Lee v. Weisman, 505 U.S. _,

a a ey ts oe a eae ee 13

Lemon vy. Kurtzman, 403 U.S.

ES i aaa a ne kee ee eee 6-9, 12-16

Roemer v. Maryland Public

Works Bd.. 426 U.S. 736 (197) . ww wc ce i,

Rosenberger v. Rector & Visitors

of University of Va., 18 F.3d 269

(4th Cir. 1994), cert. granted,

cS Bee) ee | ee rrr 17

State v. Pendleton, 112 N.C. App. 171,

Re a ee ree 6

State v. Pendleton, __ N.C.

fee Se ee 2, 6-12, 16

Tilton v. Richardson, 403 U.S.

EE oak ag ey bk ew 8s ee 10, 11

Wallace v. Jaffree, 472 U.S. 38 (1985) ........ 14

Walz v. Tax Comm’n, 397 U.S.

FF SS or a a ara 15

Zobrest v. Catalina Foothills

School Dist., 509 U.S. __,

ae a 13

STATUTES

re Oe 8s. hae oat See ee 2

N.C. Gen. Stat. § 74A (1989) ........ 3, 4, 6, 7,8

M.C. Gem. Stat. § F4A-1 (19S) 0 ww cee a, 2 :

N.C. Gen. Stat. § 74E (1992)... 2.0.0... 000 e ee. 8

N.C. Gen. Stat. § 74B-2 (1992) ............08. 4

CONSTITUTIONS |

8 OR eer er ree ree Ts re 3 |

ees ee, Gee, B, . BEE TS nc ce he ees 5 |

MISCELLANEOUS |

tl yeh exe awa koe 2

Rule 10.1(b) and (c) of the Rules

of the Supreme Court of the United States ......... 2

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

STATE OF NORTH CAROLINA,

Petitioner,

Vv.

ALAN HOWARD PENDLETON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NORTH CAROLINA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE AND ASSOCI-

ATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

The Petitioner, the State of North Carolina, by and

through its undersigned counsel, the Honorable Michael F.

Easley, Attorney General of North Carolina, and Valérie B.

Spalding, Assistant Attorney General, respectfully prays that

a writ of certiorari issue to review the judgment of the North

Carolina Supreme Court, entered on December 30, 1994,

» Bin

which reversed a decision of the North Carolina Court of

Appeals which had in turn reversed an order of a superior

court. The supreme court majority reinstated the superior

court’s decision that N.C. Gen. Stat. § 74A-1 to 74A-6

(1989) ("Company Police") was unconstitutional as applied

to the particular private university in this case.'

OPINION BELOW

This petition seeks review of the published decision

by the North Carolina Supreme Court, which is reported at

State v. Pendleton, N.C. __, 451 S.E.2d 274 (1994),

and which is reproduced in the Appendix at Al-A29.

JURISDICTION

The judgment of the North Carolina Supreme Court

was entered on December 30, 1994.? The jurisdiction of

this Court to review the North Carolina Supreme Court’s

decision is invoked pursuant to 28 U.S.C. § 1257(3) and

Rule 10.1(b) and (c) of the Rules of the Supreme Court of

the United States.

' The parties to this proceeding are the Petitioner, the State of North

Carvlina (hereinafter referred to as "the State"), and Respondent Alan

Howard Pendleton (hereinafter referred to as "Pendleton").

2 The opinion of the North Carolina Supreme Court was filed on

December 30, 1994. The actual judgment, however, was entered in the

docket by the clerk twenty (20) days after the date of filing of the

opinion. N.C.R. App. P. 32(b).

~

CONSTITUTIONAL AMENDMENT AND

STATUTORY PROVISIONS

U.S. Const. Amend. I: Congress shall make no law

respecting an establishment of religion... .

N.C. Gen. Stat. § 74A (1989) ("Company Police”)

(repealed by Session Laws 1991 (Regular Session, 1992), c.

1043, § £ (effective July 25, 1992)) provides in immediately

pertinent part:

Any educational institution . . . wheth-

er State or private, . . . may apply to the

Attorney General to commission such persons

as the institution . . . may designate to act as

policemen for it. The Attorney General upon

such application may appoint such persons or

so many of them as he may deem proper to be

such policemen, and shall issue to the persons

sO appointed a commission to act as such

policemen. Nothing contained in the provi-

sions of this section shall have the effect to

relieve any such company or corporation from

any civil liability for the acts of such police-

men, in exercising or attempting to exercise

the powers conferred by this Chapter.

N.C. Gen. Stat. § 74A-1 (1989). The complete

statute is reproduced in the Appendix at A30-A34.

N.C. Gen. Stat. § 74E-2 (1992) ("Company Police

Act") provides in immediately pertinent part:

A public or private educational institu-

tion or hospital, a State institution, or a corpo-

ration engaged in providing on-site police

security personnel services for persons or

property may apply to the Attorney General to

be certified as a company police agency. A

company police agency may apply to the

Attorney General to commission an individual

designated by the agency to act as a company

police officer for the agency.

N.C. Gen. Stat. § 74E-2 (1992). The complete

Statute is reproduced in the Appendix at A35-A44.

STATEMENT OF THE CASE

On April 12, 1991, Pendleton, an undergraduate, was

arrested for driving while impaired on the campus of

Campbell University in Buies Creek, North Carolina. The

arresting police officer was employed by the university’s

campus police force and commissioned pursuant to N.C.

Gen. Stat. § 74A (1989). Pendleton was convicted in district

court on June 26, 1991. He appealed to the superior court

for a trial de novo.

On September 3, 1991, Pendleton filed a motion to

dismiss the charge in superior court on the grounds that N.C.

Gen. Stat. § 74A violated the First Amendment to the United

dis Sommer We

ST AN DR A IRL i Ng Meat ate seretendics

States Constitution and Article I, Sections 13 and 19 of the

North Carolina Constitution. Pendleton alleged that the

statute was unconstitutional because it permitted employees

of a religious institution to be commissioned and to function

as police officers, thereby authorizing a religious institution

to exercise the State’s police power.

At the hearing on Pendleton’s motion, the arresting

officer’s testimony tended to show inter alia that Campbell

University had eight full-time police officers, paid by the

university and directly supervised by a captain who was also

& cross-sworn county deputy sheriff [but paid by the universi-

ty pursuant to contract] and who reported directly to the

university’s Dean of Student Life. The police station was on

the university campus. The officers’ responsibilities were to

enforce the laws of North Carolina. The University’s rules

and regulations are set out in a student handbook but the

officers did not enforce them: instead, they reported any

violations to their supervisor. Violations were eventually

reported to the Dean of Student Life. In answer to a

hypothetical question, the officer testified that were there to

be a party at which alcohol was being drunk (which is

against university rules), the dorm personnel would take the

names of those involved and report them to the Dean. An

officer would enter only after being notified by the dorm

personnel and would do no more than take the names of

those involved and hold the alcohol prior to turning it over

to the Dean.

After this testimony, Pendleton introduced extracts of

the University Bulletin into evidence. The superior court

then took judicial notice that Campbell University is a private

Baptist facility. On April 29, 1992, the superior court

entered an order concluding that N.C. Gen. Stat. § 74A was

unconstitutional because it created an excessive entanglement

of state and church, constituted an impermissible delegation

of authority to a religious institution and was an establish-

ment of religion. The superior court allowed Pendleton’s

motion to dismiss.

The State appealed to the North Carolina Court of

Appeals. On October 5, 1993, the court of appeals issued an

opinion in which it applied this Court’s decision in Lemon v.

Kurtzman, 403 U.S. 602 (1971), and held that N.C. Gen.

Stat. § 74A was constitutional both on its face and as applied

to Pendleton. State v. Pendleton, 112 N.C. App. 171, 435

S.E.2d 100 (1993).

Pendleton appealed to the North Carolina Supreme

Court. On 30 December 1994, also applying the Lemon test,

and relying almost exclusively on this Court’s decision in

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), a bare

majority of the supreme court issued an opinion reversing the

court of appeals on the ground that Campbell University was

a religious institution and that delegation of the State’s police

power to the university resulted in excessive entanglement

under Lemon, thus violating the Establishment Clause under

Larkin. State v. Pendleton, N.C. __, _, 451 S.E.2d

274, 281 (1994).’

REASONS WHY THE WRIT SHOULD ISSUE

THE NORTH CAROLINA SUPREME COURT’S DECI-

SION TO STRIP A RELIGIOUSLY AFFILIATED

PRIVATE UNIVERSITY OF ITS NON-TAXPAYER

SUPPORTED POLICE PROTECTION DEMON-

STRATES THAT THE LEMON TEST HAS BECOME

UNWORKABLE AND UNFAIR.

I. The supreme court’s Pendleton decision epitomizes

the difficulties inherent in applying the Lemon test.

This case has caused trouble at all four levels of the

North Carolina judicial system: district court, superior court,

the court of appeals and the supreme court. Applying the

3 The case was decided solely on federal constitutional grounds.

[W]here a law has been applied in such a manner as to

be a manifest violation of the federal constitution as

interpreted by the Supreme Court of the United States,

state constitutional review may be unnecessary and

dilatory. Based on the particular evidence presented in

this case, we conclude that, as applied, former Chapter

174A violated the First and Fourteenth Amendments to

the Constitution of the United States. We base our

decision in this case solely on federal constitutional

grounds. We neither consider nor decide any state

constitutional issues.

State v. Pendleton, N.C. __, __, 451 S.E.2d 274, 277 (1994).

~ e

Lemon test, five judges have found N.C. Gen. Stat. § 74A

to be unconstitutional as applied to Campbell University,‘

and seven have found it to be constitutional.* The final

decision from the supreme court aptly demonstrates the

difficulties that Lemon engenders.

In the supreme court, Pendleton conceded for the first

time that N.C. Gen. Stat. § 74A was constitutional on its

face. The supreme court therefore only considered the third

prong of the Lemon test, that is, whether the delegation of

the State’s police power to Campbell University created or

fostered an excessive government entanglement with religion.

Pendleton, __ N.C. at __, 451 S.E.2d at 278.° The

majority noted that the entanglement prong has been much

criticized, but concluded that pursuant to this Court’s

decision in Lamb’s Chapel v. Center Moriches, __ U.S.

__, 113 S. Ct. 2141 (1993), it was nevertheless still

required to use Lemon as the "yardstick . . . for measuring

the constitutionality of statutes under the Establishment

Clause." Pendleton, _N.C.at__, 451 S.E.2d at 278.

Applying the Lemon yardstick, therefore, the court

first determined that the police power is an important

* The superior court judge and four justices of the supreme court.

5 The district court judge, three judges of the court of appeals and

three justices of the supreme court.

¢ Although the supreme court majority attempted to restrict its

decision to N.C. Gen. Stat. § 74A, the replacement statute, N.C. Gen.

Stat. § 74E, is identical in all basic principles.

Se eee eee

discretionary power. Nobody quarrels with this. But then,

relying solely upon this Court’s decision in Larkin v.

Grendel’s Den, Inc., 459 U.S. 116 (1982),’ the supreme

court majority determined that Campbell University was a

religious institution “within the meaning of that phrase as

used . . . in Larkin." Pendleton, __ N.C. at __, 451

S.E.2d at 280. To reach this determination, the court did no

more than quote the University Bulletin’s institutional

rhetoric and its six plainly stated secular educational goals as

had the superior court in reaching the same determination.

Id. at ___, 451 S.E.2d at 279-80. This was, according to the

court, "substantial evidence" that the university’s secular

purposes and religious mission were "’inextricably inter-

twined.”" Jd. at _, 451 S.E.2d at 281. In short, having

decided to rely on Larkin, and interpreting this Court’s

holding therein as a blanket prohibition on the delegation of

an important discretionary power to a religious institution,

the majority in the supreme court forced Campbell University

into the shape of a church, since Larkin would not else

apply.*

The three-justice dissent pointed out that Larkin

indeed did not apply for two reasons: first, this Court held in

7 Larkin in turn relied heavily on Lemon. 459 U.S. at 123.

® To bolster its extraordinary decision, the supreme court repeatedly

pointed out that the State had not excepted to the superior court’s

quotations from the University Bulletin. It would be a strange State’s

attorney indeed who objected to the truth.

« Mu

Larkin that a delegation of state power to a church violates

the Establishment Clause only when the church’s exercise of

that power fuses both religious and governmental functions;

and second, both the institution and .he delegated power here

differ in nature from those in Larkin. Pendleton, _N.C.

at__—, 451 S.E.2d at 282.

The dissent then worked its way logically through the

facts, pointing out that Campbell University is an institution

of higher education, and that although it is affiliated with the

North Carolina Baptist Convention, its Board of Trustees

only governs university affairs and thus is distinct from the

parish council (and churches) in Larkin. The dissent also

relied on this Court’s decisions in Hunt v. McNair, 413 U.S.

734 (1973), and Tilton v. Richardson, 403 U.S. 672 (1971),

which both recognize that colleges and universities closely

affiliated with, or even governed by a religious body are not

necessarily pervasively sectarian. Pendleton, N.C. at

___, 451 S.E.2d at 282. Based thereon, the dissent conclud-

ed that "[t]hough closely affiliated with a religious denomina-

tion, Campbell does not subordinate secular education to

religious doctrine; it functions neither as a church nor as a

religious governing body." Jd. at __, 451 S.E.2d at 283.

It is interesting that the majority completely ignored Hunt

» Bhs

and Tilton’; perhaps this was easier than attempting to

distinguish them, since it cannot be done here.

The dissent also pointed out that in this case, unlike

the situation in Larkin, there was neither an abdication of

State power to a church nor a resultant fusion of governmen-

tal and religious functions. The Campbell University police

officers were commissioned by the Attorney General of

North Carolina under statutory authority. The university

paid their salaries and remained civilly liable for their acts in

the exercise of their authority under the statute. The officers

had the same powers as do city and county police within the

confines of property owned by the university, and, like all

other law enforcement officers in North Carolina, were

required to take both a statutory and constitutional oath

pledging to exercise their duties within the limits of the

federal and state constitutions and laws. Pendleton, __

N.C. at _, 451 S.E.2d at 283-84. Finally, the dissent

noted that Pendleton had failed to demonstrate that any of the

Campbell police officers "proselytized students, visitors, or

faculty or otherwise acted in a religious manner or for a

% The elements of the "profile" of a sectarian or substantially

religious school are that (1) the school places religious restrictions on

admission and faculty appointments, (2) that they enforce obedience to

religious dogma, (3) that they require attendance at religious services and

the study of particular religious doctrine, (4) that they are an ‘integral

part’ of the religious mission of the sponsoring church, (5) that they have

religious indoctrination as a ‘substantial purpose’, and (6) that they

impose religious restrictions on how and what the faculty can teach.

Roemer v. Maryland Public Works Bd. , 426 U.S. 736, 752, n.18 (1976)

(summarizing ‘profile’ as laid out by district court in Committee for

Public Education v. Nyquist, 413 U.S. 756, 767-68 (1973)).

« {2.

religious purpose in their exercise of the powers delegated to

them." Jd. at _, 451 S.E.2d at _.° = Again, it is

interesting that the majority ignored the obvious.

Pendleton is a perfect example of the inherent

difficulties in applying the Lemon test. Because of differing

interpretations of Lemon and its inconsistent progeny in the

state courts, a decent university in a rural county is now

prevented from ensuring that properly trained law enforce-

ment personnel are on campus and always readily available,

not only to enforce state laws but also to provide adequate

protection for its students.

Il. The supreme court’s Pendleton opinion aptly justi-

fies the criticisms levelled at the Lemon test.

As noted above, the Pendleton majority acknowledged

that the entanglement prong of the Lemon test has been much

debated and criticized. Pendleton, N.C. at ___, 451

S.E.2d at 277-78. But it is not just the entanglement prong

that is suspect: it is the whole test.

Past and present members of this Court have consis-

tently, albeit either individually and/or in dissent, suggested

that Lemon should either be modified or repudiated altogeth-

er. Board of Educ. of Kiryas Joelv. Grumet, _U.S. ___,

10 "It is not enough to show that the recipient of a challenged

[power] is affiliated with a religious institution or that it is ‘religiously

inspired.’" Bowen v. Kendrick, 487 U.S. 589, 621 (1988). Pendleton

bore the burden of attempting to show that Campbell University is

pervasively sectarian. Id.

« 3

114 S. Ct. 2481, 2498-500 (1994) (in Lee v. Weisman, 505

U.S. __, 112 S. Ct. 2649 (1992), Zobrest v. Catalina

Foothills School Dist., 509 U.S. __, 113 S. Ct. 2462

(1993), and Larson v. Valente, 456 U.S. 228 (1982), Court’s

opinion not focussed on Lemon test; unitary test for broad set

of cases sometimes does more harm than good) (O’Conncr,

J., concurring); id. at 2515 (problem with and allure of

Lemon not that it is rigid, rather that in many applications it

has been utterly meaningless) (Scalia, J., joined by Rehnqu-

ist, C.J., and Thomas J., dissenting); Lamb’s Chapel v.

Center Moriches, ___ U.S. __, 113 S. Ct. 2141, 2149,

(1993) (where unanimity that viewpoint-based discrimination

contradicted Speech Clause, Court’s citation of Lemon

unsettling and unnecessary) (Kennedy, J., concurring in part

and concurring in judgment); id. at 2149-250 (Lemon test

akin to ghoul in late-night horror movie; Court’s decision in

Lee v. Weisman, 505 U.S. __, 112 S. Ct. 2649, conspicu-

ously avoided using Lemon test but declined invitation to

repudiate it; no fewer than five of [then] currently sitting

Justices in their own opinions have driven pencils through

Lemon creature’s heart) (Scalia, J., joined by Thomas J.,

concurring in judgment); Lee v. Weisman, 505 U.S.__, 112

S. Ct. 2649, 2685 (Lemon test has received well-earned

criticism from many members of Court) (Scalia, J., joined by

Rehnquist, C.J., White and Thomas, JJ., dissenting);

Allegheny County v.. Greater Pittsburgh ACLU, 492 U.S.

573, 655-56 (1989) (persuasive criticism of Lemon has

emerged; substantial revision of Establishment Clause

doctrine may be in order) (Kennedy, J., joined by Rehnquist,

C.J., White and Scalia, JJ., concurring in judgment in part

» 22

and dissenting in part); Bowen v. Kendrick, 487 U.S. 589,

615-16 (1988) (‘entanglement’ prong of Lemon test much

criticized over the years) (Rehnquist, C.J., joined by White,

O’Connor, Scalia and Kennedy, J.J.); Corporation of

Presiding Bishop v. Amos, 483 U.S. 327, 346 (1987)

(another case illustrating difficulties inherent in Court’s use

of Lemon test) (O’Connor, J., concurring in judgment);

Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (time to

sacrifice ‘flexibility’ for ‘clarity and predictability’; Lemon’s

purpose test a good place to start) (Scalia, J., joined by

Rehnquist, C.J., dissenting); Grand Rapids School District

v. Ball, 473 U.S. 373, 400 (1985) (decision in Lemon not

required by First Amendment and contrary to long-range

interests of country) (White, J., dissenting); id. (Lemon

‘entanglement’ prong creates insoluble paradox in school aid

cases) (Rehnquist, J., dissenting); Aguilar v. Felton, 473

U.S. 402, 420 (1985) (decision in Lemon not required by

First Amendment) (White, J., dissenting); id. (Court takes

advantage of paradox it created with ‘entanglement’ prong)

(Rehnquist, J., dissenting); id. at 421-22, 429-30 (question-

ing utility of ‘entanglement’ as separate Establishment Clause

standard in most cases) (O’Connor, J., joined by Rehnquist,

J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 89 (1985)

(Court’s extended treatment of Lemon test suggests naive

preoccupation with easy, bright-line approach to constitution-

al issues; Lemon not a rigid caliper) (Burger, C.J., dissent-

ing); id. at 91 (Court should undertake to reassess cases

dealing with Religion Clauses) (White, J., dissenting); id. at

109-10 (‘entanglement’ prong creates insoluble paradox;

Lemon test has caused Court to fracture into unworkable

-15-

plurality opinions; school services cases show difficulty in

making Lemon yield principled results) (Rehnquist, J.,

dissenting); Roemer v. Maryland, 426 U.S. 736, 767-69

(1976) (Lemon imposes unnecessary and superfluous tests for

establishing when state’s involvement with religion passes

‘peril point’) (White, J., joined by Rehnquist, J., dissenting);

Committee for Public Education v. Nyquist, 413 U.S. 756,

820 (1973) (Lemon not required by First Amendment,

‘entanglement’ prong did not surface until 1970 in Walz v.

Tax Comm’n, 397 U.S. 664 (1970); remote relevance to

other cases) (White, J., joined by Burger, C.J., and Rehnqu-

ist, J., dissenting).

The state courts, of course, are bound by Lemon and

must follow it and its progeny as best they can. Kiryas Joel,

___- US. __, 114 S. Ct. 2481. But this Court is not so

bound. By granting certiorari in this case, it could, at one

stroke, finally abandon the Lemon test, replacing it with a

standard more nearly in harmony with the basic principle of

the First Amendment: there shall be no state religion forced

upon the people of this country. This would, in turn, restore

adequate police protection not only to Campbell University,

but also to all the other private, religiously affiliated institu-

« Mie

tions of higher learning in North Carolina'’ whose company

police officers will be declared "unconstitutional" pursuant to

Pendleton when they try to enforce state laws on campus.”

Justice Scalia has described the Lemon test as a ghoul

from a late-night horror movie who continues to stalk this

Court’s Establishment Clause jurisprudence at will, frighten-

ing little children and attorneys. Lamb’s Chapel v. Center

Moriches, __ U.S. at__, 113 S. Ct. at 2149-250 (Scalia,

J., dissenting). Lemon is now working its evil on North

Carolina judges. This case offers the Court the necessary

stake to drive through the Lemon creature’s heart. Id.

CONCLUSION

For the foregoing reasons, the State respectfully

requests that a writ of certiorari issue to review the decision

of the North Carolina Supreme Court.

'! Chowan College, Murfreesboro; Davidson College, Davidson;

Duke University, Durham; Livingstone College, Salisbury; Mars Hill

College, Mars Hill; Meredith College, Raleigh; Methodist College,

Fayetteville; North Carolina Wesleyan College, Rocky Mount; Queens

College, Charlotte; Saint Andrews Presbyterian College, Laurinburg;

Saint Augustine’s College, Raleigh; Shaw University, Raleigh; Wake

Forest University, Winston-Salem.

'2 The North Carolina Supreme Court attempted to restrict its

Pendleton decision to Campbell University alone, = N.C. at__—, 451

S.E.2d at 281, but it would be a brave district or superior court judge

who ignored the decision.

«89s

In the alternative, the State respectfully requests that

this case be held pending this Court’s decision in Rosenber-

ger v. Rector & Visitors of University of Va., 18 F.3d 269

(4th Cir. 1994), cert. granted, _U.S.__, 115 S. Ct. 417

(1994), argued in the Court on March 1, 1995.

Respectfully submitted,

MICHAEL F. EASLEY

Attorney General

Valérie B. Spalding

Assistant Attorney General

N. C. Department of Justice

Post Office Box 629

Raleigh, N.C. 27602-0629

Telephone: 919-733-3109

April 20, 1995.

APPENDIX

APPENDIX

TABLE OF CONTENTS

North Carolina Supreme Court Opinion

Filed December 30, 1994, State v. Pendleton,

N.C. _, 451 S.E.2d 274 (1994) ......... Al

N.C. Gen. Stat. § 74A (1989) ..........--.-.- A30

SE. Goon, Sout, S PER CIS) cc cc eee A35

sete hie AOE RARE CH "

Al

STATE of North Carolina

v.

Alan Howard PENDLETON

No. 478A93.

Supreme Court of North Carolina.

Dec. 30, 1994.

Student at private, church-owned university was

arrested by university police officer and convicted in the

Harnett County District Court of driving while impaired.

Student appealed. The Superior Court, Harnett County, W.

Steven Allen, Sr., J., dismissed conviction on First Amend-

ment grounds. State appealed. The Court of Appeals,

Martin, J., 112 N.C.App. 171, 435 S.E.2d 100, reversed.

Student appealed. The Supreme Court, Mitchell, J., held

that delegation of police power to university violated estab-

lishment clause.

Reversed.

Whichard, J., dissented and filed opinion joined by

Meyer and Webb, JJ.

[Headnotes omitted]

Appeal of right pursuant to N.C.G.S. § 7A-30 of a

decision of the Court of Appeals, 112 N.C.App. 171, 435

S.E.2d 100 (1993), reversing an order entered by Allen (W.

Steven, Sr.), J., on 29 April 1992 in Superior Court, Harnett

County. Heard in the Supreme Court on 13 September

1994.

Michael F. Easley, Atty. Gen., by Valerie B.

Spaiding, Asst. Atty. Gen., for the State.

Patterson, Harkavy and Lawrence by Martha A.

Geer, Raleigh, Stewart and Hayes by Gerald W. Hayes, Jr.,

and Lytch, Tart and Fusco, P.A. by Phillip A. Fusco, Dunn,

for defendant-appellant.

Robert A. Buzzard, Buies Creek, for Campbell

University, amicus curiae.

Patterson, Harkavy and Lawrence by Burton Craige,

Raleigh and Daniel H. Pollitt, Chapel Hill, for American

Civil Liberties Union of North Carolina Legal Foundation,

amicus curiae.

MITCHELL, Justice.

On 12 April 1991, Officer Reed Jones of the campus

police force of Campbell University observed the defendant,

Alan Howard Pendleton, operating an automobile on a public

highway near that university’s campus in Buies Creek, North

Carolina. Jones followed the defendant as the defendant

Fa ae

a iadianalitaiiih do ei

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A3

traveled toward the campus. The defendant crossed the

center line of the roadway several times and weaved back

and forth within his lane of travel. Jones stopped the

defendant and arrested him for driving while impaired in

violation of N.C.G.S. § 20-138.1. On 26 June 1991, the

defendant was convicted in District Court, Harnett County,

of driving while impaired. He appealed to the Superior

Court for trial de novo.

On 3 September 1991, the defendant filed a motion in

the Superior Court, Harnett County, seeking dismissal of the

charge against him on the ground that Chapter 74A of the

General Statutes of North Carolina violated the First Amend-

ment to the Constitution of the United States, and Article I,

Sections 13 and 19, of the Constitution of North Carolina.

Specifically, the defendant alleged that Chapter 74A was

unconstitutional because it permitted employees of a religious

institution to be commissioned and function as police officers

and thereby authorized a religious institution to exercise the

police power of the State. The defendant further alleged that

by permitting the State--through its Attorney General--to

delegate its police powers to a private, church-owned

religious institution, Chapter 74A violated the constitutional

separation of church and state because such a delegation

"enables state authority to intervene in the church agency."

A hearing was held on the defendant’s motion, during

which uncontroverted evidence was introduced tending to

show, inter alia, that Campbell University is closely affiliat-

ed with the Baptist State Convention of North Carolina.

Campbell University operates a police force consisting of a

A4

captain and eight full-time officers. All of the officers of

that police force were commissioned as police officers by the

Attorney General of North Carolina acting under the provi-

sions of Chapter 74A authorizing him to commission as

policemen the employees of certain public and private

institutions or companies. At the times relevant to this

appeal, Ricky Symmonds was employed as a deputy sheriff

by the Harnett County Sheriff's Department. While so

employed, Symmonds also acted as the chief of Campbell

University’s campus police force. Officer Jones, the officer

who arrested and charged the defendant Pendleton, was

employed as a police officer by Campbell University. The

defendant was an undergraduate student at Campbell Univer-

sity and resided in a campus dormitory.

On 29 April 1992, Judge Allen entered an order in

the Superior Court, Harnett County, concluding that Chapter

74A was unconstitutional because it created an excessive

entanglement of state and church, constituted an impermissi-

ble delegation of authority to a religious institution and was

an establishment of religion. The order further concluded

that the defendant’s arrest and the evidence obtained as a

result had been invalid, since they had resulted from an

unconstitutional delegation and exercise of the State’s police

power. Based on these conclusions, the order of the Superi-

or Court allowed the defendant’s motion to dismiss. The

State appealed to the Court of Appeals.

AS

At all times pertinent to this appeal, former Chapter

74A provided’, inter alia:

Any educational institution . . . wheth-

er State or private, . . . may apply to the

Attorney General to commission such persons

as the institution . . . may designate to act as

policemen for it. The Attorney General upon

such application may appoint such persons or

so many of them as he may deem proper to be

such policemen, and shall issue to the persons

sO appointed a commission to act as such

policemen.

N.C.G.S. § 74A-1 (1989) (repealed by Session Laws 1991

(Regular Session, 1992), ch. 1043, § 8 (effective 25 July

1992)). Further, as the Court of Appeals stated in its

opinion in the present case, former Chapter 74A also

provided

’ After the order of the Superior Court but before this

case reached the Court of Appeals, Chapter 74A was

repealed in its entirety. N.C.Sess.Laws 1991 (Regular

Session, 1992), ch. 1043 § 8 (effective 25 July 1992).

Provisions pertaining to the subject matter formerly

controlled by Chapter 74A are now found in Chapter

74E of the North Carolina General Statutes. At all

times pertinent to this appeal, however, the authority of

the university and the officer who arrested and charged

the defendant rested upon former Chapter 74A, exclu-

sively. Therefore, this opinion is directed solely to the

constitutionality of those former statutory provisions as

they apply to the facts of this particular case.

A6

that policemen commissioned under the Chap-

ter shall possess all the powers of municipal

and county police to make arrests for felonies

and misdemeanors and to charge for infrac- j

tions on property owned by or controlled by

their employers. N.C. Gen. Stat. § 74A-2(b).

The authority of policemen who are employed

by any college or university extends to the

public roads passing through or immediately

adjoining the property of the employer. N.C.

Gen. Stat. § 74A-2(e)(1). In addition, the

authority of such college or university police-

men may be extended by agreement between

the employer institution’s board of trustees

and the governing board of the municipality or

county in which the institution is located.

N.C. Gen. Stat. § 74A-2(e)(2) and (3).

State v. Pendleton, 112 N.C.App. 171, 175, 435 S.E.2d 100,

103 (1993). Applying the test set forth in Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745

(1971), the Court of Appeals concluded:

Chapter 74A has a secular legislative purpose,

its primary effect is neither to advance nor

inhibit religion, it does not foster an excessive

entanglement with religion and it is not an

unconstitutional delegation of the State’s law

enforcement authority.

A7

Pendleton, 112 N.C.App. at 180, 435 S.E.2d at 106. The

Court of Appeals held that Chapter 74A was constitutional,

both on its face and as applied.

Based on the uncontroverted evidence comprising the

record on appeal before us, we conclude that the Superior

Court did not err in holding that former Chapter 74A was

unconstitutional as applied in the present case. Accordingly,

we reverse the decision of the Court of Appeals and reinstate

the order of the Superior Court, Harnett County, allowing

the defendant’s motion to dismiss.

The defendant has conceded on appeal before this

Court that former Chapter 74A was faciaily constitutional.

The defendant has argued here that former Chapter 74A,

which provided inter alia for the delegation of the State’s

police power to educational institutions, was unconstitutional

as applied to Campbell University because it violated the

First Amendment to the Constitution of the United States and

Article I, Sections 13 and 19 of the Constitution of North

Carolina.

Ordinarily, when a statute is challenged on constitu-

tional grounds, the best course is to evaluate any challenge

made under the state constitution before turning to a review

of the statute under the Constitution of the United States.

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,

294-95, 102 S.Ct. 1070, 1077-78, 71 L.Ed.2d 152, 163

(1982). See Reed v. Madison, 213 N.C. 145, 147, 195 S.E.

620, 622 (1938). However, where a law has been applied in

such a manner as to be a manifest violation of the federal

constitution aS interpreted by the Supreme Court of the

A8

United States, state constitutional review may be unnecessary

and dilatory. Based on the particular evidence presented in

this case, we conclude that, as applied, former Chapter 74A

violated the First and Fourteenth Amendments to the Consti-

tution of the United States. We base our decision in this

case solely on federal constitutional grounds. We neither

consider nor decide any state constitutional issues.

In cases applying the Establishment Clause of the

First Amendment, the Supreme Court of the United States

has developed a three-pronged analytical scheme for deter-

mining the constitutionality of legislative enactments. Lemon

v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745.

Under this analytical scheme, known as the Lemon test, to

survive constitutional review:

First, the statute must have a secular purpose;

second, its principal or primary effect must be

one that neither advances nor inhibits religion

. . .} finally, the statute must not foster "an

excessive government entanglement with

religion."

Id. at 612-13, 91 S.Ct. at 2111, 29 L.Ed.2d at 755 (citations

omitted). If a statute, as applied, violates any one prong of

the Lemon test, it is unconstitutional. Edwarc'’s v. Aguillard,

482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510,

518-19 (1987).

We turn our analysis to the third prong of the Lemon

test and consider whether, based on the evidence presented

in this case, the delegation of the State’s police power to

A9

Campbell University creates or fosters an excessive govern-

ment entanglement with religion. This entanglement prong

of the Lemon test has been the subject of much debate. It

has been criticized as being “blurred, indistinct, and vari-

able" as well as “insolubly paradoxical." Roemer vy. Mary-

land Public Works Bd., 426 U.S. 736, 768-69, 96 S.Ct.

2337, 2355, 49 L.Ed.2d 179, 200 (1976) (White, J., concur-

ring, joined by Rehnquist, J., (now C.J.)). It has been said,

for example, that the entanglement prong is paradoxical

because it requires that aid to parochial schools be closely

watched, yet such close supervision itself creates excessive

entanglement. Wallace v. Jaffree, 472 U.S. 38, 109, 105

S.Ct. 2479, 2517, 86 L.Ed.2d 29, 77 (1985) (Rehnquist, J.,

dissenting). "The required inquiry into ‘entanglement’ has

been modified and questioned," and the entire Lemon test has

been said to have "proven problematic." Wallace, 472 U.S.

at 68, 105 S.Ct. at 2496, 86 L.Ed.2d at 51 (O’Connor, J.,

concurring).

The Supreme Court’s conspicuous nonreliance on

Lemon in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649,

120 L.Ed.2d 467 (1992), led some, including Mr. Justice

Scalia, to believe that the test had been abandoned.? How-

ever, the Court resuscitated the oft-criticized Lemon test in

Lamb’s Chapel v. Center Moriches, _U.S.___ , 113 S.Ct.

2 "The Court today demonstrates the irrelevance of

Lemon by essentially ignoring it, and the interment of

that case may be the one happy byproduct of the

Court’s otherwise lamentable decision." Lee, _ U.S.

at _—, 112 S.Ct. at 2685, 120 L.Ed.2d at 517 (Scalia,

J., dissenting)(citation omitted).

Al0

2141, 124 L.Ed.2d 352 (1993). Employing the Lemon test,

Justice White wrote for a clear majority of the Court in

Lamb’s Chapel that "there is a proper way to inter an

established decision and Lemon, however frightening it might

be to some, has not been overruled." Lamb’s Chapel, ___

U.S. at__, n. 7, 113 S.Ct. at 2148, n. 7, 124 L.Ed.2d at

363 n. 7. Consequently, the Lemon test remains the yard-

stick that this Court is required to use for measuring the

constitutionality of statutes under the Establishment Clause.

In Lemon, the Supreme Court made it abundantly

clear that the object of the Establishment Clause is to prevent

the intrusion of either church or state into the domains of the

other. Lemon, 403 U.S. at 614, 91 S.Ct. at 2112, 29

L.Ed.2d at 756. The Court stated there:

Under our system the choice has been made

that government is to be entirely excluded

from the area of religious instruction and

churches excluded from the irs of govern-

ment.

Id. at 625, 91 S.Ct. at 2117, 29 L.Ed.2d at 763 (emphasis

added). We must decide whether the Superior Court erred

in concluding that there had been such an intrusion of a

religious institution into government affairs, given the

particular evidence forming the record in this case.

In Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103

S.Ct. 505, 74 L.Ed.2d 297 (1982), the Supreme Court

considered the excessive entanglement implication of a statute

vesting important discretionary governmental powers in a

All

religious institution. Citing the third prong--the entanglement

prong--of the Lemon test, the Supreme Court held in that

case that the delegation of a State’s alcohol licensing power

to religious institutions was unconstitutional. In Larkin, a

Massachusetts statute vested in governing bodies of churches

and schools the power effectively to veto applications for

liquor licenses for establishments within a 500-foot radius of

such churches or schools. Holding the statute unconstitution-

al, the Supreme Court stated, "The Framers did not set up a

system of government in which important, discretionary

governmental powers would be delegated to or shared with

religious institutions." Larkin, 459 U.S. at 127, 103 S.Ct.

at 512, 74 L.Ed.2d at 307.

In Larkin, the Supreme Court established a clear rule

which this Court is required to follow in cases arising under

the Establishment Clause: A state may not delegate an

important discretionary governmental power to a religious

institution or share such power with a religious institution.

All parties to this appeal concede that, pursuant to former

Chapter 74A, the State of North Carolina delegated its police

power; to Campbell University. Therefore, this Court must

resolve two questions. First, we must determine whether the

police power is an important, discretionary governmental

power within the Supreme Court’s meaning in Larkin.

Second, we must decide whether the particular uncontrovert-

ed evidence presented in this case supports the Superior

Court’s conclusion that Campbell University is a religious

institution of a type contemplated by the Supreme Court in

Larkin. If the answer to both these inquiries is yes, then we

are required to hold that the statute, as applied on the

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particular facts of this case, is unconstitutional on the ground

that it violates the Establishment Clause.

The first question--whether the police power is an

important discretionary governmental power--has already

been answered clearly and expressly by the Supreme Court

of the United States. In Foley v. Connelie, 435 U.S. 291, 98

S.Ct. 1067, 55 L.Ed.2d 287 (1978), the Supreme Court held

that "the exercise of police authority calls for a very high

degree of judgment and discretion." Id. at 298, 98 S.Ct. at

1072, 55 L.Ed.2d at 294. The Supreme Court clearly and

emphatically said that police "are clothed with authority to

exercise an almost infinite variety of discretionary powers:

and are vested with "plenary discretionary powers.” Jd. at

297-98, 98 S.Ct. at 1072, 55 L.Ed.2d at 293-94. Under this

unmistakable mandate of the Supreme Court of the United

States in Foley, we are required to conclude that the police

power is an important discretionary governmental power.

Given that the police power is an important discre-

tionary governmental power, we must next address the issue

of whether, based on the particular uncontroverted evidence

in the present case, the Superior Court erred in concluding

that for purposes of analysis under the Establishment Clause,

Campbell University is a "religious insutution” within the

meaning of that phrase as used by the Supreme Court in

Larkin. The Superior Court’s findings of fact are conclusive

and binding on this Court if supported by substantial evi-

dence. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58

(1992). In the present case, the Superior Court, based upon

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uncontroverted evidence including the "CAMPBELL UNI-

VERSITY BULLETIN 1990-92," made findings, as follows:

Campbell University is a Baptist University

located in Buies Creek, Harnett County,

North Carolina. It was founded in [sic]

January 5, 1887.

In 1925, the school’s property was deeded to

the North Carolina Baptist Convention. Each

student that attends Campbell University’s

undergraduate school is required to take

Religion 101 and any additional religion

course.

Religion 101 is a basic Bible course with

special emphasis on the birth and development

of the Israelite nation, the life and time of

Jesus and the emergence and expansion of the

early church.

All of the elective religious courses are cen-

tered around the Judeo-Christian religion.

Campbell University’s students are required to

adhere to a Code of Ethics which arises out of

the institution’s statement of purpose [which

states]:

The basic principles which guide the

development of Christian character

and govern Christian behavior are to

be found in the Scriptures. Moral law

is the gift of God and is fully revealed

in the teachings of Jesus Christ.

Al4

The student, by virtue of his enroll-

ment, agrees to abide by the rules and

moral precepts which govern the Uni-

versity community.

Because of the University’s commit-

ment to the lordship of Christ over

every area of life, wholehearted obedi-

ence to moral law as set forth in the

Old and New Testaments and exempli-

fied in the life of Christ applies to

every member of the University com-

munity, regardless of position.

While the Bible does not provide a

specific teaching regarding all social

practices, its emphasis on general

principles is unmistakable, particularly

in circumstances where lack of Self-

restraint would be harmful or offensive

to others. Out of these general princi-

ples come certain concrete expecta-

tions which should be viewed not

negatively but as practical guidelines

for conduct and for a productive way

of life.

To uphold at all times and in all plac-

es, both on- and off-campus, the

University’s statement of purpose.

AlS

The Baptist State Convention of North Caroli-

na recommends members of the Board of

Trustees to the Baptist State Convention for

election.

The legally designated authority of Campbell

University rests in the Board of Trustees.

Both in and out of the classroom Campbell

University endeavors to present Christian

principles to students and to foster their appli-

cation to daily life.

Campbell University’s mission [as expressly

declared in the "CAMPBELL UNIVERSITY

BULLETIN 1990-92"] is to:

Provide students with the option of a

Christian world view.

Bring the word of God, mind of

Christ, and power of the Spirit to bear

in developing moral courage, social

sensitivity, and ethical responsibility

that will inspire a productive and

faithful maturation as individual and

as citizens;

Transfer from one generation to the

next the vast body of knowledge and

values accumulated over the ages;

Al6

Encourage creativity, imagination, and

rigor in the use of intellectual skills;

Affirm the University’s commitment to

the belief that truth is never one-di-

mensional but in wholeness is revelato-

ry, subjective, and transcendent as

well as empirical, objective, and ratio-

nal, and that all truth finds its unity in

the mind of Christ;

Frame University teaching in the con-

text of a liberal arts education seeking

to free persons to live more abundantly

and securely in an ever-changing

social order;

Foster stewardship in nurturing the

gifts of the mind and in developing

aesthetic sensibilities;

Equip students with superior vocations

skills, productive insights, and profes-

sional integrity;

Provide a community of learning that

is committed to the pursuit, discovery,

and dissemination of knowledge to

serve the region as well as nation and

international communities.

Al7

By agreement between the University Board of

Trustees and the governing board of the municipality

[of Buies Creek], the University’s police may exer-

cise their police power throughout the municipality.

By agreement between the University’s Board of

Trustees and the governing board of the county, the

University’s police power may extend county-wide.

Campbell University police officers exercise their

police power on campus and on the highway adjacent

to property owned by Campbell University. There

are two main highways that run through Campbell

[University]--Highway 421 and [Highway 27].

Captain Ricky Simmonds’ immediate supervisor is the

Dean of Student Life at Campbell University and the

Dean has complete supervisory power over him. The

Dean of Student Life is responsible for the adminis-

tration of the University’s disciplinary system,

including its Code of Ethics.

The State did not object to the foregoing findings nor

did it take exception to them on appeal to this Court.

“Where no exceptions have been taken to the findings of

fact, such findings are presumed to be supported by compe-

tent evidence and are binding on appeal." Schloss v.

Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962).

Therefore, this Court is bound by the above uncontested

findings of the Superior Court. [d.; accord State v. Perry,

316 N.C. 87, 107, 340 S.E.2d 450, 462 (1986).

Al8

The Superior Court also found that “Campbell’s

religious purpose is inextricably intertwined with its secular

activities and it unabashedly attempts to proselytize and

indoctrinate its students." This is the only finding we quote

that was excepted to by the State. From its findings--

including the above uncontested findings and the single

contested finding--the Superior Court concluded as a matter

of law that for purposes of this case Campbell University is

a “religious institution."

The Superior Court’s conclusions of law are binding

upon us if they are "required as a matter of law by the

findings or correct as a matter of law in light of the find-

ings." State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579,

585 (1994) (citing Mahaley, 332 N.C. at 592-93, 423 S.E.2d

at 64). In light of the findings of the Superior Court, which

were not excepted to by the State and which, therefore, are

binding upon this Court, we are compelled to conclude in

this case that the Superior Court did not err when it conclud-

ed, for purposes of applying the Establishment Clause, that

Campbell University is a “religious institution" within the

meaning of the Supreme Court of the United States in its

decision in Larkin.

Given the uncontroverted evidence, it is difficult to

see how the Superior Court could have made any different

findings or reached any different conclusions than it in fact

reached. In its own university bulletin for 1990-92, Camp-

bell University proclaimed with understandable religious

enthusiasm that it "is a Baptist university" and that:

Al9

The purpose of Campbell University arises out

of three basic theological and Biblical presup-

positions: learning is appointed and conserved

by God as essential to the fulfillment of hu-

man destiny; in Christ, all things consist and

find ultimate unity; and the Kingdom of God

in this world is rooted and grounded in Chris-

tian community.

Therefore, Campbell University expressly defined its mission

as including: "[providing] students with the option of a

Christian world view; [bringing] the word of God, mind of

Christ, and power of the Spirit to bear in developing moral

courage, social sensitivity, and ethical responsibility that will

inspire a productive and faithful maturation as individuals

and citizens . . . ." No one has disputed the fact that

Campbell University also carries out laudable purposes

relating to the secular education and training of its students.

Nevertheless, where a trial court has found that an

institution’s secular purposes and religious mission are

"inextricably intertwined"--as the Superior Court found from

uncontroverted and substantial evidence in this case--we have

no choice but to treat it as a religious institution for First

Amendment purposes. See Zobrest v. Catalina Foothills

School District, 509 U.S. __, ___ and n. 1, 113 S.Ct.

2462, 2464 and n. 1, 125 L.Ed.2d 1, 7 and n. 1 (1993)

(treating a school in which secular education and advance-

ment of religious values or beliefs were inextricabiy inter-

twined as a religious institution); Lemon, 403 U.S. 602, 91

S.Ct. at 2107, 29 L.Ed.2d 745 (treating church-related

schools that have the purpose of propagating and promoting

A20

a particular religious faith as religious institutions). Conse-

quently, the State’s delegation of its police power to Camp-

bell University under former Chapter 74A was--based upon

the uncontested findings in this case--a delegation of an

imnorstant discretionary power to a religious institution. As

't, we are required to hold that former Chapter 74A, as

aj 4 in this case, resulted in a violation of the Establish-

ment Clause of the First Amendment as construed by the

Supreme Court of the United States in Larkin. Larkin, 459

U.S. at 127, 103 S.Ct. at 512, 74 L.Ed.2d at 307.

We emphasize that our conclusion that the Superior

Court did not err in holding that former Chapter 74A was

unconstitutional as applied here to delegate police powers to

Campbell University is based upon the unique facts as found

by the Superior Court from the particular uncontroverted

evidence presented, which findings of fact were not excepted

to by the State in this case. We do not consider or decide

the status of Campbell University for any other purpose or

any other case. We merely hold that, based on the unique

record before us, the order of the Superior Court holding the

now repealed Chapter 74A to be unconstitutional as applied

in this case was without error and must be reinstated. The

decision of the Court of Appeals to the contrary must be

reversed.

The decision we find ourselves bound to enter based

upon binding decisions of the Supreme Court of the United

States should not impede the proper enforcement of the

criminal laws on the campus of Campbell University. There

are methods other than those formerly set out in Chapter 74A

eli eenennis

ee

A21

for providing for the safety and protection of college campus-

es--including those college campuses which are deemed by

the Supreme Court of the United States, as a matter of

constitutional law, to be religious institutions.

For the foregoing reasons, the decision of the Court

of Appeals is reversed.

REVERSED.

WHICHARD, Justice, dissenting.

I agree with the Court of Appeals’ conclusion that

former Chapter 74A of the General Statutes did not violate

the Establishment Clause of the First Amendment to the

Constitution of the United States. I believe Larkin v.

Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74

L.Ed.2d 297 (1982), upon which the majority relies to find

Chapter 74A unconstitutional, is distinguishable and does not

invalidate the statute.

The Massachusetts statute at issue in Larkin conferred

upon the governing body of a church or school an absolute

veto over applications for liquor licenses when the applicant

sought to sell liquor within five hundred feet of the church or

school. The United States Supreme Court determined that

the statute substitutes the unilateral and absolute power of a

church for the reasoned decision-making of a public legisla-

tive body acting on evidence and guided by standards, on

issues with significant economic and political implications.

The challenged statute thus enmeshes churches in the process

A22

of government and creates the danger of "[pJolitical fragmen-

tation and divisiveness on religious lines. "Larkin, 459 U.S.

at 127, 103 S.Ct. at 512, 74 L.Ed.2d at 307 (quoting Lemon

v. Kurtzman, 403 U.S. 602, 623, 91 S.Ct. 2105, 2116, 29

L.Ed.2d 745, 762 (1971). It therefore created an excessive

entanglement between church and state in violation of the

First Amendment.

The majority opinion views Larkin as standing for the

proposition that no important discretionary power may be

delegated to a religious institution. I believe the holding is

less expansive, namely, that a delegation of state power to a

church violates the First Amendment wher the church’s

exercise of that power fuses religious and governmental

functions. Because the nature of both the institution involved

and the power delegated in this case differ from those in

Larkin, I do not believe the Larkin precedent requires that we

hold Chapter 74A unconstitutional.

The entity that received and exercised state power in

Larkin was a “formally constituted parish council," an

"institution of religious government." Board of Educ. of

Kiryas Joel Village School Dist. vy. Grumet, _ U.S. ___,

___, 114 S.Ct. 2481, 2488, 129 L.Ed.2d 546, 557 (1994).

Campbell University is neither a church nor an “institution

of religious government." It is an institution of higher

education affiliated with the North Carolina Baptist Conven-

tion. The University’s Board of Trustees, though comprised

of members of Baptist churches from across the state,

governs university affairs, not religious matters. Thus, the

Board is not a religious governing body like a parish council.

A23

The Supreme Court has long recognized that colleges

and universities closely affiliated with, or even governed by,

a religious denomination are not necessarily pervasively

sectarian institutions as a result. See, e.g., Hunt v. McNair,

413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); Tilton

v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d

790 (1971). In Hunt the Supreme Court concluded that the

Baptist College at Charleston was not "an institution in which

religion is so pervasive that a substantial portion of its

functions are subsumed in the religious mission." Hunt, 413

U.S. at 743, 93 S.Ct. at 2874, 37 L.Ed.2d at 931. The

members of the Board of Trustees of the College were

elected by the South Carolina Baptist Convention, which also

had the sole power to amend the College’s charter and whose

approval was required for certain financial transactions.

However, neither students nor faculty members had to meet

religious qualifications for admission or appointment, and the

College’s operations were not "oriented significantly towards

sectarian rather than secular education." Jd. at 744, 93 S.Ct.

at 2874, 37 L.Ed.2d at 931.

The Supreme Court reached a similar conclusion in

Tilton. There the Court described the “general pattern" of

education at religiously affiliated colleges and universities:

"[B]y their very nature, college and post-graduate courses

tend to limit the opportunities for sectarian influence by

virtue of their own internal disciplines. Many church-related

colleges and universities are characterized by a high degree

of academic freedom and seek to evoke free and critical

responses from their students." Tilton, 403 U.S. at 686, 91

S.Ct. at 2099, 29 L.Ed.2d at 803. The Court proceeded to

Seater ee ee ee ee ee ee

ee ee eee

A24

note that the four universities receiving aid were "governed

by Catholic religious organizations" and populated by

predominantly Catholic faculties and student bodies. Id.

However, all four schools admitted and employed non-

Catholics, and none mandated student attendance at religious |

services. Theology courses, though required, were not

limited to consideration of Roman Catholicism and were

taught according to the professors’ professional standards and

"the academic requirements of the subject matter." Jd. at

686-87, 91 S.Ct. at 2100, 29 L.Ed.2d at 803-04. Thus the

Court concluded that all four universities were "institutions

with admittedly religious functions but whose predominant

higher education mission is to provide their students with a

secular education." Jd. at 687, 91 S.Ct. at 2100, 29 L.Ed.2d

at 804.

Campbell University fits the mold of the church-

related universities involved in both Hunt and McNair. The

institution’s mission statement, quoted in the trial court’s

findings of fact and in the majority opinion here, contains

both sectarian rhetoric and secular academic aims. Of the

nine goals stated, five--a majority--are secular and reveal a

commitment to academic rigor and intellectual development.

The Supreme Court has declined to rely solely or significant-

ly on an institution’s religious rhetoric when determining

whether it is pervasively sectarian. See Hunt, 413 U.S. at

743, 93 S.Ct. at 2874, 37 L.Ed.2d at 931. Similarly, such

rhetoric does not render Campbell a religious institution as

the term is used in Larkin. Though closely affiliated with a

religious denomination, Campbell does not subordinate

A25

secular education to religious doctrine; it functions neither as

a church nor as a religious governing body.

Just as the nature of the institution involved here

differs from that involved in Larkin, the nature and result of

the power delegated also distinguish this case from that one.

The statute challenged in Larkin conferred upon a church the

power to veto applications for liquor licenses; the church

thus effectively usurped the role of the state. Such abdica-

tion by the state created "‘a fusion of governmental and

religious functions,’" thus excessively entangling church and

state. Larkin, 459 U.S. at 126-27, 103 S.Ct. at 512, 74

L.Ed.2d at 307 (quoting School Dist. of Abington T ownship,

Pa. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571,

10 L.Ed.2d 844, 858 (1963)).

The church-state relationship created by the state’s

delegation of its veto power to churches in Larkin "presented

an example of united civic and religious authority, an

establishment rarely found in such straightforward form in

modern America." Grumet, ___ U.S. at_, 114. S.Ct. at

2488, 129 L.Ed.2d at 557. Religious authority completely

supplanted civic authority, allowing churches to use civic

power for purely religious ends: "[The statute] substitute[d]

the unilateral and absolute power of a church for the rea-

soned decisionmaking of a public legislative body acting on

evidence and guided by standards, on issues with significant

economic and political implications. The . . . statute thus

enmesh[ed] churches in the processes of government... ."

Larkin, 459 U.S. at 127, 103 S.Ct. at 512, 74 L.Ed.2d at

307.

A26

By contrast, neither ar abdication of state power to a

church nor the resulting fusion of governmental and religious

functions occurred here; thus, we are not forced to adopt the

result the Supreme Court reached in Larkin. At issue here

is the delegation of the state’s police power. The Attorney

General commissioned employees of Campbell University to

act as police officers for the school under the authority of

former Chapter 74A. Campbell paid the officers’ salaries as

required by section 74A-4 and remained civilly liable for the

acts of the police in the exercise of their authority under the

statute. N.C.G.S. § 74A-1 (1989). The officers had the

same authority as municipal and county police "to make

arrests for both felonies and misdemeanors and to charge for

infractions.” N.C.G.S. § 74A-2(b).

Additionally, the officers were required to take "the

usual oath.” N.C.G.S. § 74A-2(a). N.C.G.S. § 11-11

contains the oath for law enforcement officers.

I, [name], do solemnly swear (or affirm) that

I will be alert and vigilant to enforce the

criminal laws of this State; that I will not be

influenced in any matter on account of person-

al bias or prejudice; that I will faithfully and

impartially execute the duties of my office as

a law enforcement officer according to the

best of my skill, abilities, and judgment; so

help me, God.

N.C.G.S. § 11-11 (1990). The officers also had to take the

oath found in Article VI, section 7 of the Constitution of

North Carolina, id., which states:

A27

I, [name], do solemnly swear (or affirm) that

I will support and maintain the Constitution

and laws of the United States, and the Consti-

tution and laws of North Carolina not incon-

sistent therewith, and that I will faithfully

discharge the duties of my office as [a law

enforcement officer], so help me God.

Thus, members of Campbell’s police force pledged to

operate within the limits imposed on their law-enforcement

power by the federal and state constitutions and laws, and to

exercise their power in a neutral manner. The police power

exercised by Campbell officers served not as a standardless

vehicle for the advancement or protection of religious

interests but as a neutral means of protecting the safety of all

citizens and residents at and near the University. The

existence of constitutional and statutory standards distinguish-

es this case from Larkin, where churches were not required

to follow any standards or explain the exercise of their veto

power. Further, the record here does not show that members

of Campbell’s police force proselytized students, visitors, or

faculty or otherwise acted in a religious manner or for a

religious purpose in their exercise of the powers delegated to

them. The police power conferred was quintessentially

secular, neutral and nonideological.

Finally, this delegation of power did not substitute the

opinion of a religious body for that of the state and therefore

did not fuse religious and governmental functions. "Where

‘fusion’ is an issue [as in Larkin], the difference lies in the

distinction between a government’s purposeful delegation on

A28

the basis of religion and a delegation on principles neutral to

religion, to individuals whose religious identities are inciden-

tal to their receipt of civic authority." Grwmet, __ U.S. at

___, 114. S.Ct. at 2489, 129 L.Ed.2d at 558. Chapter 74A

authorized the delegation of the police power to any company

or educational institution on neutral bases, not on the basis

of any belief or practice that was religious in nature. The

First Amendment does not prohibit church-related institutions

from receiving "public benefits that are neutrally available to

all." Roemer v. Board of Public Works of Md., 426 U.S.

736, 746, 96 S.Ct. 2337, 2344-45, 49 L.Ed.2d 179, 187

(1976). That Campbell is affiliated with the North Carolina

Baptist Convention is wholly incidental to the state’s commis-

sioning of the University’s police officers to enforce secular

Statutes of general applicability; in Larkin, by contrast, the

churches received their civic authority because they were

churches.

In Tilton the Supreme Court warned that

[t]here are always risks in treating criteria

discussed by the Court from time to time as

"tests" in any limiting sense of that term.

Constitutional adjudication does not lend itself

to the absolutes of the physical sciences or

mathematics. The standards should rather be

viewed as guidelines with which to identify

instances in which the objectives of the Reli-

gion Clauses have been impaired.

Tilton, 403 U.S. at 678, 91 S.Ct. at 2095, 29 L.Ed.2d at

798-99. The objectives of the Establishment Clause of the

A29

First Amendment were not impaired by the operation of

former Chapter 74A because the statute did not create an

excessive entanglement between church and state. The

standard established by Larkin soundly prohibits states from

allowing churches to exercise civic authority without appro-

priate standards and with the goal of protecting religious

interests. The delegation here, however, was not to a church

or a religious governing body, did not involve the exercise

of civic power without standards, and did not have the

purpose or effect of protecting or promoting religious

interests. It thus did not run afoul of the Establishment

Clause of the First Amendment.

I therefore respectfully dissent and vote to affirm the

result reached by the Court of Appeals.

MEYER and WEBB, JJ., join in this dissenting

opinion.

Chapter 74A.

Company Police.

[Subtitles omitted]

§ 74A-1. Attorney General may appoint and commission

special police; civil liability of companies or

corporations for which appointed.

Any educational institution or hospital, whether State

or private, or any other State institution, public utility

company, construction company, manufacturing company,

auction compaiiy, incorporated security patrols or corpora-

tions engaged in providing security or protection services for

persons or property, may apply to the Attorney General to

commission such persons as the institution, corporation or

company may designate to act as policemen for it. The

Attorney General upon such application may appoint such

persons or so many of them as he may deem proper to be

such policemen, and shall issue to the persons so appointed

a commission to act as such policemen. Nothing contained

in the provisions of this section shall have the effect to

relieve any such company or corporation from any civil

liability for the acts of such policemen, in exercising or

attempting to exercise the powers conferred by this Chapter.

A31

§ 74A-2. Oath and powers of company police; exceptions

as to railroad police and campus law en-

forcement.

(a) Every policeman so appointed shall, before entering

upon the duties of his office, take and subscribe the usual

oath.

(b) Such policemen, while in the performance of the duties

of their employment, shall severally possess all the powers

of municipal and county police officers to make arrests for

both felonies and misdemeanors and to charge for infrac-

tions:

(1) Upon property owned by or in the possession

and control of their respective employers; or

(2) Upon property owned by or in the possession

and control of any person or persons who

shall have contracted with their employer or

employers to provide security for protective

services for such property; or

(3) | Upon any other premises while in hot pursuit

of any person for any offense committed upon

property vested in subdivisions (1) and (2)

above.

(c) Repealed by Session Laws 1981, c. 884, s. 4.

(d) The limitations on the power to make arrests con-

tained in subdivisions (1), (2) [and] (3) of subsection (b) shall

not be applicable to policemen appointed for any railroad

company. Policemen appointed for railroad companies shall

be required to post a bond in the sum of five hundred dollars

($500.00) in lieu of the bond required by subsection (c).

(e) Private Colleges and Universities. --

(1)

(2)

(3)

A32

In addition to the power to make

arrests contained in subsection (b) of

this section, such policemen who are

employed by colleges and universities

which are licensed, or exempted from

licensure, by G.S. 116-15 shall have

the same authority upon that portion of

any public road or highway passing

through or immediately adjoining the

property described in subsection (b) of

this section, wherever located.

The board of trustees of any college or

university which is licensed, or ex-

empted from licensure, by G.S. 116-

15 may enter into joint agreements

with the governing board of any mu-

nicipality to extend the law-enforce-

ment authority of such policemen

employed by the college or university

into any or all of the municipality’s

jurisdiction and to determine the cir-

cumstances in which this extension of

authority may be granted.

The board of trustees of any college or

university which is licensed, or ex-

empted from licensure, by G.S. 116-

15 may enter into joint agreements

with the governing board of the county

with the consent of the sheriff, to

extend the law-enforcement authority

of such policemen employed by the

A33

college or university into any or all of

the county’s jurisdiction and to deter-

mine the circumstances in which this

extension of authority may be granted.

§ 74A-3. Company police to wear badges.

Such policemen shall, when on duty, severally wear

a shield with the words "Railway Police" or "Company

Police" and the name of the corporation for which appointed

inscribed thereon, and this shield shall always be worn in

piain view except when such police are employed as detec-

tives.

§ 74A-4. Compensation of company police.

The compensation of such police shall be paid by the

companies for which the policemen are respectively appoint-

ed, as may be agreed on between them.

§ 74A-5. Police powers cease on company’s filing notice.

Whenever any company shall no longer require the

services of any policeman so appointed as aforesaid, it may

file a notice to that effect in the office of the Attorney

General and thereupon the power of such officer shall cease

and determine.

§ 74A-6. Railway conductors and station agents

declared special police.

All passenger conductors of railroad trains and station

or depot agents are hereby declared to be special police of

A34

the State of North Carolina, with full power and authority to

make arrests for offenses committed in their presence or

view, or for felony, or on sworn complaint for misdemeanor,

except that the conductors shall have such power only on

their respective trains or their railroad right-of-way, and the

agents at their respective stations; and such conductors and

agents may cause any person so arrested by them to be

detained and delivered to the proper authority for trial as

soon as possible. Nothing contained in the provisions of this

section shall have the effect to relieve any such railroad

company from any civil liability for the acts of such conduc-

tors, station or depot agents, in unlawfully exercising or

attempting to exercise the powers herein conferred.

A35

Chapter 74E.

Company Police Act.

[Subtitles omitted]

§ 74E-1. Title.

This Chapter is the "Company Police Act" and may

be cited by that name.

§ 74E-2. Policy and scope.

(a) The purpose of this Chapter is to ensure a minimum

level of integrity, proficiency, and competence among

company police agencies and company police officers. To

achieve this purpose, the General Assembly finds that a

Company Police Program needs to be established. As part

of the Company Police Program, the Attorney General is

given the authority to certify an agency as a company police

agency and to commission an individual as a company police

officer.

(b) A public or private educational institution or hospital,

a State institution, or a corporation engaged in providing on-

Site police security personnel services for persons or property

may apply to the Attorney General to be certified as a

company police agency. A company police agency may

apply to the Attommey General to commission an individual

designated by the agency to act as a company police officer

for the agency.

A36

§ 74E-3. Liability insurance policy or certificate of self-

insurance required; suspension of company

police agency certification for failure to

comply.

(a) An applicant for certification as a company police

agency must file with the Attorney General either a copy of

a liability insurance policy that meets the requirements of this

section or a certificate of self-insurance designating assets

sufficient to satisfy the coverage requirements of this section

if the applicant is a non-public entity. The policy or certifi-

cate of self-insurance must provide not less than one million

dollars ($1,000,000) of coverage per incident for personal

injury or property damage resulting from a negligent act of

the applicant or an agent or employee of the applicant

operating in the course and scope of employment or under

color of law. The form, execution, and terms of a liability

insurance policy must meet the requirements of the Attorney

General.

(b) An insurance carrier that issues a liability insurance

policy required by this section may cancel the policy upon

giving 30 days’ written notice to both the company police

agency and the Attorney General. The written notice must

be given by certified mail, return receipt requested. Cancel-

lation of a liability insurance policy does not affect any

liability on the policy that accrued prior to the effective

cancellation date.

(c) A company police agency that is a nonpublic entity

must maintain the liability insurance policy or certificate of

self-insurance required by this section in effect at all times.

The Attorney General shall suspend the certification of a

A37

company police agency that fails to maintain a liability

insurance policy or certificate of self-insurance when re-

quired to do so by this section. A certification suspended for

this reason may not be reinstated until the person whose

certification was suspended files with the Attorney General

an application for reinstatement and either the required

liability insurance policy or certificate of self-insurance.

§ 74E-4. Powers of Attorney General.

The Attorney General has the following powers in

addition to those conferred elsewhere in this Chapter:

(1) To establish minimum education, experience,

and training standards and establish and re-

quire written or oral examinations for an

applicant for certification as a company police

agency, a certified company police agency, an

applicant for commission as a company police

officer, or a commissioned company police

Officer.

(2) To require a company police agency or a

company police officer to submit reports or

other information.

(3) To inspect records maintained by a company

police agency.

(4) To conduct investigations regarding alleged

violations of this Chapter or a rule adopted

under this Chapter and to make evaluations as

may be necessary to determine if a company

police agency or a company police officer is

complying with this Chapter or a rule adopted

under this Chapter.

(3)

(6)

(7)

(8)

(9)

A38

To deny, suspend, or revoke a certification as

a company police agency or a commission as

a company police officer for failure to meet

the requirements of or comply with this Chap-

ter or a rule adopted under this Chapter, in

accordance with Article 3 of Chapter 150B of

the General Statutes.

To appear in the name of the Company Police

Program and apply to the courts having juris-

diction for injunctions to prevent a violation

of this Chapter or a rule adopted under this

Chapter.

To delegate the authority to administer this

Chapter.

To require that the Criminal Justice Standards

Division provide administrative support staff

for the Company Police Program.

To adopt rules needed to implement this

Chapter, in accordance with Chapter 150B of

the General Statutes.

§ 74E-5. Records.

(a) The Attorney General is the legal custodian of all

books, papers, documents, or other records and property of

the Company Police Program.

(b) Any papers, documents, or other records that become

the property of the Company Police Program and are placed

in a company police officer’s personnel file maintained by

the Attorney General are subject to the same restrictions

concerning disclosure as set forth in Chapters 126, 153A,

and 160A of the General Statutes for other personnel records.

A39

(c) Notwithstanding the provisions of subsection (b), the

Attorney General may disclose the contents of any records

maintained under the authority of this Chapter to the Crimi-

nal Justice Education and Training Standards Commission, or

any other criminal justice agency for certification or employ-

ment purposes.

§ 74E-6. Oaths, powers, and authority of company

police officers.

(a) Requirements. -- An individual who is commissioned

as a company police officer must take the oath of office

required of a law enforcement officer before the individual

assumes the duties of a company police officer. The person

in each company police agency who is responsible for the

agency’s company police officers must be commissioned as

a company police officer.

(b) Categories. -- The following three distinct classifica-

tions of company police officers are established:

(1) Campus Police Officers -- Those company

police officers who are employed by any

college or university that is a constituent

institution of The University of Noith Caroli-

na or any private college or university that is

licensed or exempted from licensure as pre-

scribed by G.S. 116-15.

(2) Railroad Police Officers -- Those company

police officers who are employed by a certi-

fied rail carrier and commissioned as company

police officers under this Chapter.

A40

(3) Special Police Officers -- All company police

officers not designated as a campus police

officer or railroad police officer.

(c) All Company Police. -- Company police officers, while

in the performance of their duties of employment, have the

same powers as municipal and county police officers to make

arrests for both felonies and misdemeanors and to charge for

infractions on any of the following:

(1) Real property owned by or in the possession

and control of their employer.

(2) Real property owned by or in the possession

and control of a person who has contracted

with the employer to provide on-site company

police security personnel services for the

property.

Any other real property while in continuous

and immediate pursuit of a person for an

offense committed upon property described in

subdivisions (1) or (2) of this subsection.

(d) Campus Police. -- Campus police officers have the

powers contained in subsection (c) of this section and also

have the powers in that subsection upon that portion of any

public road or highway passing through or immediately

adjoining the property described in that subsection, wherever

located. The board of trustees of any college or university

that qualifies as a campus police agency pursuant to this

Chapter may enter into a mutual aid agreement with the

governing board of a municipality or, with the consent of the

county sheriff, a county to the same extent as a municipal

police department pursuant to Chapter 160A.

(3) Railroad Police. -- Railroad police officers have the

powers contained in subsection (c) and also have the powers

A41

and authority granted by federal law or by a regulation

promulgated by the United States Secretary of Transporta-

tion. Notwithstanding any of the provisions of this Chapter,

the limitations on the power to make arrests contained in

subsection (c) above, shall not be applicable to railroad

police officers commissioned by the Attorney General

pursuant to the authority of this Chapter.

(f) Campus Option. -- Notwithstanding any of the provi-

sions of this Chapter, the Board of Trustees of any constitu-

ent institution of The University of North Carolina may elect

to have its officers certified under Chapter 17C or Chapter

116 of the General Statutes rather than requesting certifica-

tion as a company police agency and company police

commission pursuant to the provisions of this Chapter.

(g) Exclusive Authority. -- Notwithstanding any other

provision of law, the authority granted to company police

officers shall be limited to the provisions of this Chapter.

§ 74A-7. Badges, uniforms, weapons, and vehicles.

Company police agencies shall be responsible for

ensuring that all employees, whether or not commissioned,

comply with the provisions of this Chapter and the rules

adopted under this Chapter, including those provisions

pertaining to the wearing of badges and uniforms, the

carrying of weapons, and the operation of vehicles.

§ 74E-8. Minimum standards for company police

officers.

Applicants for commission as a company police

officer and a commissioned company police officer must

A42

meet and maintain the same minimum preemployment and in-

service standards as are required for State law enforcement

officers by the North Carolina Criminal Justice Education

and Training Standards Commission, and must meet and

maintain any other preemployment and in-service require-

ments set by the Attorney General.

§ 74E-9. Compensation of company police officers.

The compensation of a company police officer shall

be paid by the company police agency for which the officer

is commissioned, as may be agreed between them.

§ 74E-10. Expiration, renewal, and termination of agency

certification or officer commission.

(a) Agency. -- Unless sooner suspended or revoked by the

Attorney General, a company police agency’s certification

expires on June 30 following the date it is issued. A

company police agency may renew the certification upon

payment of the appropriate fee and compliance with this

Chapter and the rules adopted under this Chapter. An entity

whose company police agency’s certification was denied or

revoked for a violation of this Chapter or a rule adopted

under this Chapter is not eligible to apply again for that

certification for three years.

(b) Officer. -- Unless sooner suspended or revoked by the

Attorney General, a company police officer’s commission

expires on June 30 following the date it is issued. A

company police officer may renew a commission upon

payment of the appropriate fee and compliance with this

Chapter and the rules adopted under this Chapter. The

A43

Attorney General shall immediately revoke the commission

of a company police officer when any of the following

occurs:

(1) Termination of employment with the company

police agency for which the officer is commis-

sioned.

(2) Termination, suspension, or revocation of the

certification of the company police agency for

which the officer is commissioned.

(3) Failure to meet in-service training require-

ments, as required by this Chapter or the rules

adopted under this Chapter.

(4) Violation of this Chapter or a rule adopted

under this Chapter.

An individual whose company police officer’s

commission was denied or revoked for a violation of this

Chapter or a rule adopted under this Chapter is not eligible

to apply again for a commission for three years.

§ 74E-11. Immunity.

Neither the Attorney General nor any of the Attorney

General’s staff may be held criminally or civilly liable for

any acts or omissions in carrying out the provisions of this

Chapter or for the acts or omissions of agencies or officers

certified or commissioned under this Chapter.

§ 74E-12. Fees.

[fee table omitted]

A44

§ 74E-13. Penalties and enforcement.

(a) No private person, firm, association, or corporation,

and no public institution, agency, or other entity shall engage

in, perform any services as, or in any way hold itself out as

a company police agency or engage in the recruitment or

hiring of company police officers without having first

complied with the provisions of this Chapter. Any person,

firm, association, or corporation, or their agents and employ-

ees violating any of the provisions of this Chapter shall be

guilty of a misdemeanor and punishable by a fine, imprison-

ment for a term not to exceed two years, or both, in the

discretion of the court. si

(b) The Company Police Program may apply in its own

name to the superior court for an injunction to prevent any

violation or threatened violation of this Chapter or a rule

adopted under this Chapter, and the superior courts have

jurisdiction to grant the requested relief, irrespective of

whether or not criminal prosecution has been instituted or

administrative sanctions imposed because of the violation.

The venue for an action brought under this subsection shall

be in any county selected by the Attorney General.

(c) This section does not relieve a company police agency

from any civil liability for the acts of its company police

officers in exercising or attempting to exercise the powers

conferred by this Chapter.