# Petition for Writ of Certiorari — North Carolina v. Pendleton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1121

## Text

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

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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

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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.

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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.

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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

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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

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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).

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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

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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.

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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.

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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;

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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.

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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).

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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:

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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

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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

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1566%3A1. Public record. Not legal advice.