Donnelly v. Univ. of N.C.
| Decision Date | 02 September 2014 |
| Docket Number | No. COA14–208.,COA14–208. |
| Court | North Carolina Court of Appeals |
| Parties | John F. DONNELLY, Jr., Petitioner/Appellant, v. UNIVERSITY OF NORTH CAROLINA, Board of Governors of the University of North Carolina, and University of North Carolina at Chapel Hill Public Safety Department, Respondents/Appellees. |
Rech Law, P.C., by Kate A. Rech for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Matthew Tulchin, for respondent-appellee.
A decision by an administrative agency to indefinitely ban petitioner from all University of North Carolina athletic facilities did not violate petitioner's First Amendment rights. The ban was not arbitrary, capricious, or unsupported by substantial evidence, and therefore did not violate N.C. Gen.Stat. § 150B–51. University officials did not misuse their power to retaliate against petitioner.
John Donnelly, Jr. (petitioner) graduated from the University of North Carolina (UNC) in 1970 and has always been a dedicated fan of the school's sports teams. Petitioner frequently attended UNC athletic events and volunteered as an usher for the 2006 football season. From 2006 until December 2012, in a series of incidents, petitioner displayed inappropriate behavior toward several UNC athletes and staff members of the UNC Athletics Department. Petitioner was reprimanded for his behavior several times prior to UNC imposing upon him a lifetime ban from UNC athletic events. This appeal arises from petitioner's appeal of this ban.
Petitioner made sexually suggestive comments to female UNC Athletics staff members, traveled to UNC women's soccer matches and appeared at the hotel where the players were staying and harassed the players, and alienated fans by openly criticizing players in front of their family members during the game while serving as an usher and representative of UNC Athletics. Petitioner also harassed staff members by repeatedly calling various UNC Athletics offices up to 13 times per day.
The events that led to the lifetime ban arise from an incident that occurred in December 2012 at the Women's Soccer College Cup tournament in San Diego. Petitioner had previously attempted to communicate with several female soccer players both in person and via Facebook. At the Soccer College Cup, petitioner found out which hotel the players were staying, allegedly “because he won an autographed soccer ball and couldn't locate the head coach's signature on the ball.” Petitioner claims that he wanted to find the head coach so he could locate his signature on the ball. The parents of the players felt uncomfortable with petitioner's uninvited presence at the hotel, especially given his previous attempts to communicate with several female players. Petitioner was asked to leave, and did so.
As a result of petitioner's persistent harassment of UNC Athletics staff members and athletes, and history of inappropriate behavior at athletic events, on 3 December 2012, UNC issued a Notice of Trespass to petitioner. The Notice prohibited petitioner from entering any area of UNC Athletic Facilities at any time in the future. The Notice was sent to petitioner via certified mail. One week later, George Hare (Hare), Deputy Chief of the UNC Department of Public Safety, called petitioner, explained the Notice of Trespass, and discussed the parameters of the restriction with petitioner. Petitioner was informed of his right to appeal, and he exercised that right.
On 7 March 2013, Hare issued a Final University Decision denying petitioner's appeal of the Notice of Trespass. On 4 April 2013, petitioner filed a Petition for Review of Final Agency Decision, seeking judicial review of the University's decision in the Superior Court of Iredell County. On 4 November 2013, Judge Lee found that, “no substantial rights of the petitioner have been prejudiced and that the final decision of the University should be affirmed.”
Petitioner appeals.
In his first argument, petitioner contends that the trial court erred in affirming UNC's indefinite ban from all athletic facilities because UNC violated his First Amendment rights. We disagree.
N.C. Gen.Stat. § 150B–51 (2013).
“Under a de novo review, the superior court ‘consider[s] the matter anew[ ] and freely substitut[es] its own judgment for the agency's judgment.’ ” Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quoting Sutton v. N.C. Dep't of Labor, 132 N.C.App. 387, 389, 511 S.E.2d 340, 341 (1999) ). ” 356 N.C. at 14, 565 S.E.2d at 18.
“The first inquiry a court must undertake when a First Amendment claim is asserted is whether the plaintiff has engaged in ‘protected speech.’ ” Goulart v. Meadows, 345 F.3d 239, 246 (4th Cir.2003) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567, 576 (1985) ). While it is well-recognized that the First Amendment protects more than spoken or written word, the United States Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ). In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Id. (quoting Spence v. State of Wash., 418 U.S. 405, 410–11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) ).
The United States Supreme Court has recognized that students wearing black armbands to protest military involvement in Vietnam, sit-ins to protest segregation, and picketing about a wide variety of causes are behaviors that are protected by the First Amendment. Id. (citing Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Brown v. Louisiana, 383 U.S. 131, 141–42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) ; United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) ).
The Fourth Circuit held that harassment is not protected speech. Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir.1988) ().
We hold that petitioner has failed to demonstrate that he engaged in any speech protected by the First Amendment. Petitioner harassed athletes, the family members of athletes, athletic staff members, and fans. This behavior is not protected by the First Amendment. Therefore, we do not address petitioner's argument that UNC athletic facilities are a public forum.
This argument is without merit.
In his second argument, petitioner contends that the trial court erred in affirming UNC's indefinite ban from all athletic facilities because UNC's decision was arbitrary, capricious, and unsupported by substantial evidence, in violation of N.C. Gen.Stat. § 150B–51. We disagree.
As described in Section II A, above, the appropriate standard of review for this argument is the whole record test.
“When utilizing the whole record test, however, the reviewing court must examine all competent evidence (the “whole record”) in order to determine whether the agency decision is supported by substantial evidence.” Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002) (quoting ACT–UP Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (internal quotation marks omitted)).
An administrative ruling is deemed arbitrary and capricious when it is “whimsical, willful[,] and [an] unreasonable action without consideration or in disregard of facts or law or...
To continue reading
Request your trial
-
In re Jerry's Shell, LLC
...action without consideration or in disregard of facts or law or without determining principle.” Donnelly v. Univ. of N.C.,––– N.C.App. ––––, ––––, 763 S.E.2d 154, 158 (2014) (citation, quotation marks, and brackets omitted). N.C. Gen.Stat. § 20–183.8B, the statute setting forth the specific......