Dunkel v. Elkins

• Decision Date: 17 March 1971
• Docket Number: Civ. No. 70-1239-K.
• Citation: 325 F. Supp. 1235
• Parties: Gregory M. DUNKEL v. Wilson H. ELKINS, President, University of Maryland, Marvin Mandel, Governor, State of Maryland, and the State of Maryland.
• Court: U.S. District Court — District of Maryland

325 F. Supp. 1235

Gregory M. DUNKEL v. Wilson H. ELKINS, President, University of Maryland, Marvin Mandel, Governor, State of Maryland, and the State of Maryland.

Civ. No. 70-1239-K.

United States District Court, D. Maryland.

March 17, 1971.

COPYRIGHT MATERIAL OMITTED

Thomas R. Asher, Washington, D. C., and Russell R. Reno, Jr. and Douglas D. Connah, Jr., Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen. of Md., and Estelle A. Fishbein, Asst. Atty. Gen., for defendants.

Before SOBELOFF, Circuit Judge, and WATKINS and KAUFMAN, District Judges.

FRANK A. KAUFMAN, District Judge.

Plaintiff, Gregory M. Dunkel, an Assistant Professor of Mathematics at Howard University, Washington, D. C., since February, 1970, and the holder of degrees of Master of Science and Ph.D. (Mathematics) from the University of Maryland in 1965 and 1967, asks this Court to declare unconstitutional Md. Ann.Code art. 27, § 577B (1970 Cum. Supp.), and to enjoin defendants from enforcing its provisions against plaintiff or any other person. Defendants are the Honorable Marvin Mandel, Governor of Maryland; Wilson H. Elkins, President of the University of Maryland; and the State of Maryland. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S. C. § 1983 and related sections. A three-judge court was prayed and convened pursuant to 28 U.S.C. §§ 2281 and 2284. Both sides have filed motions for summary judgment. The facts are established by uncontroverted affidavits, except in a few instances. The factual disputes posed by the latter are not material to the resolution of the legal issues presented herein.

I

The College Park campus of the University of Maryland was, in the spring of 1970, a scene of the utmost turmoil. On May 4, 1970, Governor Mandel proclaimed that "a state of public crisis, emergency and civil disturbance exists within the vicinity of College Park, Maryland,"¹ ordered the Maryland State Militia into active service, and gave it "full power and responsibility for the area of the University of Maryland Campus at College Park. * * *"² On May 15, 1970, the Adjutant General of Maryland prohibited the possession or transportation of gasoline or other flammable liquids (except in the tank of a motor vehicle) on that campus.³

On May 4, 1970, plaintiff was observed on the campus, apparently "leading * * * a mob of students * * *" which shortly afterwards broke down the doors of the main administration building.⁴

On March 26, 1970, plaintiff was seen on the campus, apparently,

* * * coordinating or assisting a group of students who had been arrested for a recent "sit-in" in their efforts to disrupt the faculty meeting then in progress by yelling and shouting obscenities at appropriate times when speeches, motions, or votes were taken to which the group was opposed. * * *⁵

On April 7, 1970, plaintiff was photographed along with a number of students "blocking and disrupting vehicular traffic" on the University's grounds.⁶

On May 14, 1970, plaintiff was observed on the steps of the main administration building shortly after its locked doors "were broken and certain individuals, many of whom were students, forcibly entered the building."⁷

On May 18, 1970, President Elkins addressed the following written notice to Dunkel:

You are hereby requested to leave the campus premises and you are advised that henceforth you are denied the right of access to the buildings and grounds of the University of Maryland. In the event that you are found in or upon the University premises or property, you will be subject to prosecution as provided in Article 27, Section 577B of the Annotated Code of Maryland.⁸ Emphasis supplied.

That notice was served on Dunkel on May 19, 1970.⁹

Dunkel has submitted an affidavit, dated December 29, 1970, stating, inter alia:

1. * * *

2. On May 19, 1970 at about 1:00 P.M., I was served by a member of the police force of the University of Maryland with a document captioned "NOTICE" set forth supra at p. 1238 * * *. I have never been advised of the reason for the issuance of this notice to me (other than the vague conclusion expressed in the affidavit of Wilson H. Elkins see n. 8, supra * * *), nor have I been advised of, nor given the opportunity to attend, any hearing relating to the issuance of the notice.

3. At the time of the issuance of the notice, and at all other times that I have been present on the premises of the University of Maryland, I have been engaged in lawful activities including the communication of ideas and information to members of the faculty and students of the University.

4. The University of Maryland is a public institution funded and operated by the State of Maryland under the supervision of the Governor of Maryland. Its premises and many of its buildings are open to the general public. The grounds of the University are often used by the public for recreational purposes and the University maintains on its grounds several businesses open to the public including an ice cream parlor and athletic exhibitions. In addition, the University makes many of its facilities available to persons or groups not directly connected with the University of Maryland, sometimes for compensation. I personally have come upon the University of Maryland's campus at least 100 times since my graduation in 1967, and except for the delivery of the above referred to notice to me on May 19, 1970, I have never been told that I was not permitted to be on campus or asked to state the reason for my presence on campus. During the many years that have elapsed since I commenced my studies at the University of Maryland campus, I can recall no occasion when a member of the general public was asked to leave the University's premises. To the best of my knowledge, the University of Maryland's campus police force makes no attempt, on any regular basis, to exclude members of the general public from using the walkways, stores and lawns of the University of Maryland. The campus of the University of Maryland is bisected by an east-west street known as Campus Drive which is constantly used by members of the general public to cross from U. S. Route 1 (Washington Boulevard) to Maryland Route 193 (University Boulevard). In addition, the campus is bisected by U. S. Route 1, a heavily traveled north-south highway.

5. Since I ceased to be a student at the University, I have confined my presence at the University to places open to the general public or to places specifically to which I was granted access by duly authorized students, faculty members or other officials of the University.

6. Since the receipt by me of the aforesaid notice, I have been warned by members of the University's police force that my presence on the University's premises or grounds will result in my arrest and prosecution under Section 577(B). * * *¹⁰ 7. In my professional capacity as a mathematician, as an associate professor of mathematics at Howard University, as an alumnus at the University of Maryland, and as a member of the public, I have need and desire to converse, consult and otherwise communicate with students and faculty members at the University's College Park Campus. On a number of occasions in the past, I have attended meetings of mathematicians held at the University of Maryland, have lectured in a professional capacity at the University of Maryland in conjunction with its Math Department, have attended symposia on mathematics at the University of Maryland, and have conversed with its professors and students concerning matters in the field of mathematics.

8. * * * In its May 20, 1970 issue, * * * "The Diamondback", the University's newspaper * * * quotes a University official who explained that the notice to me was issued because "he is a menace everytime he speaks on campus". I believe that the issuance of the notice to me was based upon utterances by me at or about the University, which speech is protected by the First Amendment to the Federal Constitution and has given rise to no criminal charges against me.

* * * * * *

II

Article 27, section 577B provides as follows:

The highest official or governing body of the University of Maryland, any of the State colleges, any community college or public school may deny access to the buildings or grounds of the institution to persons who are not bona fide, currently registered students, staff, or faculty at the institution, and who have no lawful business to pursue at the institution, or who are acting in a manner disruptive or disturbing to the normal educational functions of the institution. Administrative personnel and staff of the University of Maryland, any of the State colleges, any community college or public school may demand identification and evidence of qualification for use of anyone desiring to use or come upon the premises of the particular institution. Whoever shall trespass upon the grounds of the University of Maryland, any of the State colleges, any community college or public school or who refuses or fails to leave the buildings or grounds of these institutions after being requested to do so by an authorized employee of the institution, or who wilfully damages or defaces any of the buildings, furnishings, statues, monuments, memorials, trees, shrubs, grasses, or flowers on the grounds of such institutions shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than $1,000.00, or imprisoned for not more than six months, or both, in the discretion of the court.

That statute is in no way ambiguous. Therefore, there is no basis for the abstention by this Court sought by defendants. As Mr. Justice Douglas recently wrote in Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971):

* * * the naked question, uncomplicated by an unresolved state law, is whether that Act on its face is unconstitutional. * * * Abstention should not be ordered merely to await an attempt to vindicate the claim

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