398 F.Supp. 777 (W.D.Mich. 1975), G74-46, Smyth v. Lubbers

Docket Nº:G74-46-C.A.
Citation:398 F.Supp. 777
Party Name:Charles C. SMYTH and Greg Smith, Plaintiff, v. Arend LUBBERS, President of Grand Valley State Colleges, individually and in his official capacity, et al., Defendants.
Case Date:June 27, 1975
Court:United States District Courts, 6th Circuit, Western District of Michigan

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398 F.Supp. 777 (W.D.Mich. 1975)

Charles C. SMYTH and Greg Smith, Plaintiff,


Arend LUBBERS, President of Grand Valley State Colleges, individually and in his official capacity, et al., Defendants.

No. G74-46-C.A.

United States District Court, W.D. Michigan, Southern Division.

June 27, 1975

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H. David Soet, Grand Rapids, Mich., of counsel, Pinsky & Soet, Grand Rapids, Mich., William Burnham, G. R. Legal Aid Society, Grand Rapids, Mich., for plaintiffs.

Law, Weathers, Richardson & Dutcher, Grand Rapids, Mich., David E. Dutcher and Patrick W. Muldoon, Grand Rapids, Mich., of counsel, for defendants.


FOX, Chief Judge.

The five original plaintiffs in this case were students at Grand Valley State Colleges in Allendale, Michigan (hereafter referred to as the College), during the 1973-74 academic year. All resided in dormitory rooms on campus. On January 30, 1974, College officials acting under color or authority of College regulations, searched each of the plaintiffs' rooms without warrants, and discovered substances alleged to be marijuana. On February 14, 1974, the students filed suit with this court under 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 1343 challenging the validity of the regulations and searches, and raising due process objections to the disciplinary action they felt sure would follow. Although Grand Valley State Colleges was originally a defendant, it has been dismissed as a party by stipulation. The present defendants are individual executive officers and employees of the College.

This court issued a Temporary Restraining Order on February 14, 1974, which restrained the College from executing any sentence or punishment it might impose, pending adjudication of plaintiffs' constitutional claims, but which otherwise allowed the College administrative process to go forward. The cases of all but two of the original plaintiffs were finally disposed of inside the administrative process, and are no longer before this court.

However, as more fully set forth below, the plaintiffs Charles C. Smyth and Greg Smith were found guilty of possession of marijuana by the All College Judiciary and suspended. The plaintiff Smith requests a judgment declaring that the search in question was illegal and unconstitutional, and a permanent injunction prohibiting the defendants from expelling or suspending him from the College on the basis of any evidence discovered in the course of the search, or the fruits thereof. He also seeks an injunction requiring defendants to expunge from the College records any reference to disciplinary action based upon illegally seized evidence or the fruits thereof. 1 Both Smith and Smyth request judgments declaring that hearing procedures employed by the College failed to accord them due process as required by the Constitution. They request injunctions retraining the defendants from expelling or suspending them from the College based upon these hearings.

The parties have entered into extensive stipulations as to facts and exhibits, and have submitted the case on stipulated issues. They have also agreed that no hearings are necessary, and, to the extent that the stipulations might not cover all material facts, the court may use the exhibits, the transcript of the All College Judiciary hearing, and the depositions on file. The Temporary Restraining Order has been extended by stipulation.

A summary of the stipulated facts and issues follows. The court will find additional facts as necessary in the course of its discussion of the legal issues.

Grand Valley State Colleges publishes and distributes a Student Handbook setting forth in some detail the College rules and regulations. One such regulation pertains to drugs: 'The possession,

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distribution or use by a student of any narcotic or hallucinogenic drugs, including marijuana, in either the refined or crude form except under the direction of a licensed physician is prohibited.' Student Handbook, at 21. The College also has a Disorderly Conduct regulation which provides, in part, 'No person shall engage in intentional expression or conduct on College owned or controlled property or at College sponsored or supervised functions which substantially disrupts or interferes with the rights of others, College discipline or normal College functions, or which causes substantial disorder.' Student Handbook, at 19. There is no contention that the plaintiffs were not aware of these regulations.

On January 30, 1974, Smyth and Smith were living in room 269 and 265, respectively, in Kistler Hall on the College campus. Each has signed a 'Residence Hall Contract' which provided, in part: 'The undersigned, in consideration for the board and room provided by Grand Valley College, do(es) hereby agree as follows: . . . (2) To abide by the terms and conditions of residence in Grand Valley State College residence halls as stated in the current housing handbook, which terms and conditions are specifically made a part thereof. [sic.]. (3) That residency in Grand Valley States College residence halls, and this contract, are subject to all rules and regulations of Grand Valley State College.' Stip. Ex. No. 2.

The College's Room Entry Procedures which were in effect at all times pertinent to ths case, and which applied to the plaintiffs' dormitory rooms, provided:

ROOM ENTRY PROCEDURES. In the interest of maintaining an environment in the College residence halls, which provides for the health, safety, and welfare of all residents, it is occasionally necessary for the College to exercise its right of room entry. The situations requiring room entry are as follows:

1. Authorized college personnel may enter student rooms at reasonable times for purposes of maintenance.

2. Student rooms may be entered by residence hall staff members if any of the following situations exist:

a. A clear indication that established health or safety regulations are being violated.

b. There is a clear and present danger to the room occupants or other residents.

c. College officials have reasonable cause to believe that students are continuing to violate federal, state or local laws or College regulations, the room is subject to search by College authorities. A search will be conducted reluctantly and only if authorized by the GVSC President or a designee.

3. Student rooms may be entered and searched by county and state officials only after a search warrant has been presented stating the reason for the search.

Student Handbook at 23-24.

On January 30, 1974, at about 12:45 A.M., the plaintiffs' rooms were entered and searched pursuant to the College regulations and under the authority of the College Room Entry Procedures Rule 2(c). The rooms were entered and searched by Defendant Douglas Ballard, Resident Advisor of the College; Defendant Karen Nemen, Head Resident Assistant; Defendant Brad Jones, then Director of Housing of the College; Officer Al Wygant, a campus policeman and Ottawa County Deputy Sheriff; and Officer Grant Schliewe, also a campus policeman and Ottawa County Deputy Sheriff. No consent was given to the searches, and the searches were conducted without a warrant. Evidence was seized in both searches. Stip. Ex. Nos. 5, 6; Stipulation Nos. 7, 12, 17.

After the search, the plaintiffs were charged with 'disorderly conduct and possession of narcotic drugs in violation of both State of Michigan laws and/or

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Grand Valley State Colleges regulations.' Stip. Ex. Nos. 8, 9.

The plaintiffs chose to be tried by the All College Judiciary. That panel was composed of seven members, including four students, two faculty members, and one administrator. The Chairperson, Ms. Rhonda Rivera, is an attorney. At the hearings, the plaintiffs were represented by counsel, given an opportunity to cross-examine witnesses, and to present witnesses and evidence in their own defense. The College was also represented by counsel, who acted as prosecutor.

Both plaintiffs challenged the admissibility of the evidence seized as a result of the January 30 search of their rooms. With the consent of counsel, the Chairperson of the All College Judiciary, sitting alone, conducted a separate hearing on the admissibility of the evidence under the College regulations. The Chairperson did not consider the plaintiffs' constitutional challenge. The evidence seized from Smith's room was ruled admissible as to him. The evidence seized from Smyth's room was ruled inadmissible.

At Smith's hearing before the full Judiciary, Officer Wygant stated that during the search of Smith's room he discovered three baggies containing a substance which he identified as marijuana. A pipe was also found which 'contained,' in the words of the parties' stipulation, 'a very characteristic smell.' Smith was found guilty of possession of marijuana and was suspended from the College for one term. He was acquitted on the charge of disorderly conduct.

Notwithstanding the suppression of the alleged marijuana in his case, the Judiciary found Smyth guilty of possession of marijuana on the basis of testimonial evidence and he was suspended from the College for a period of two years. He likewise was acquitted of the charge of disorderly conduct.

No criminal proceedings have been instituted by the College or civil authorities against the plaintiffs.

The parties have submitted the case for the decision of this court on nine stipulated issues. These fall into three major categories. The first two issues concern jurisdiction. Issues three through six concern the validity of the College Room Entry Procedures and the search and seizure. Issues...

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