Nzuve v. Castleton State College, No. 2-75

• Docket Nº: No. 2-75
• Citation: 133 Vt. 225, 335 A.2d 321
• Case Date: February 28, 1975
• Court: United States State Supreme Court of Vermont

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335 A.2d 321 133 Vt. 225 Stephen N. NZUVE
v.
CASTLETON STATE COLLEGE et al. No. 2-75. Supreme Court of Vermont. Feb. 28, 1975.

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[133 Vt. 226] Stephen L. Klein, Rutland, for plaintiff.

Peter H. Banse, Bishop & Crowley, Rutland, for defendants.

Before [133 Vt. 225] BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

[133 Vt. 226] LARROW, Justice.

In a case of first impression in this state, the plaintiff-appellant, Stephen Nzuve, seeks to enjoin Castleton State College, its College Court, and its Dean for Student Affairs, from holding a hearing before the College Court on charges preferred against him by the Dean. He seeks to enjoin such hearing permanently on the ground that the procedures outlined by the applicable college rules fail to meet the requirements of due process. He also seeks temporary relief on the further ground that such hearing would unduly prejudice the disposition of criminal charges [133 Vt. 227] against him pending in the Rutland Superior Court if held before such disposition.

Admittedly, the charges before the College Court and those before the Rutland Superior Court are substantially the same. In substance, they encompass burglary of a sleeping apartment in the nighttime, attempted rape, and simple assault. College

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involvement in the charges springs from the fact that they allegedly occurred in a college dormitory at a time when the building was closed to males.

The complaint was dismissed by the Rutland Superior Court, which stayed the dismissal order and enjoined student trial until disposition of the appeal from its order. On motion, we granted speedy hearing, and have elected to dispose of the case by opinion and entry made prior to the customary time, opening of the succeeding term.

We hereinafter consider the issues, ably presented by counsel, in what seems to us their logical order. It is both undisputed and certain that the rights of plaintiff here threatened are neither insubstantial nor de minimis. With prior investment in his pursuit of a degree, he stands threatened with expulsion and loss of good name and reputation. This is 'loss of liberty' within the purview of the Fourteenth Amendment, and due process of law is required if plaintiff is to sustain such loss. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150, (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). 'Once it is determined that due process applies, the question remains what process is due.' Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). We have, therefore, examined at length the stipulated procedures of the College Court, which plaintiff voluntarily elected in preference to an alternative hearing before Dean Jennings, to determine whether the protections appropriate to the situation are afforded him. In light of the importance of this question, we elect not to consider the effect of his election as a possible waiver. If due process is not indeed afforded by these procedures, plaintiff would be entitled to both the permanent and the temporary relief which he seeks.

We have also, in light of the importance of this case and the desirability of fair and speedy disposition, elected to relax somewhat the stringency of our rules regarding adequate [133 Vt. 228] briefing. Practically all of plaintiff's claims with respect to the inadequacy of the procedures afforded are contained in a lengthy affidavit which was attached to his application for temporary relief. These claims are, in his brief, simply incorporated by reference, a course we would ordinarily consider inadequate briefing. We imposed, however, short limitations on briefing preparation for argument, and consider the presentation by both counsel, under existing circumstances, to be impressive. We have therefore considered the merits of these claims, insofar as they are consistent with the unchallenged findings of the trial court.

The first general objection raised by appellant below was that the College Court hearing would be a criminal action, denying him due process. He points to the power to impose a fine, without limitation as to amount. We are cited to no authority holding this makes the action criminal in nature, but in any event, failure to pay an imposed fine results only in 'further disciplinary action.' The most severe disciplinary action set forth in the procedures is expulsion; it follows that the most severe fine would only be tantamount to expulsion. The procedures are not, in our view, rendered 'criminal' by this provision. An alleged lack of right of confrontation and examination is contrary to the findings of the trial court, and we do not, therefore, consider it. The same is true with respect to an alleged deprivation of counsel. Unanmity among the members of the court is not required, but we are pointed to no authority holding this to be a requisite of due process. Trial by court before the three members of our county (now superior) courts have never been held to require such unanimity. The issue of lack of time to prepare a defense was decided adversely to appellant by the trial court, and this finding stands unchallenged, largely because of events transpiring between the

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original affidavit and hearing on the merits. Absence of 'random selection' of court members may well be applicable to jury trial, but certainly has no application to trial without jury. Failure to replace disqualified members after challenge deserves the same comment. The argument of 'selective enforcement', based upon the infrequency of preferred charges and failure to pursue the drug convictions of two other students[133 Vt. 229] we regard as frivolous, particularly when made without citation of authority.

Also asserted in the submitted affidavit was impairment of plaintiff's privilege against self-incrimination. We treat this claim infra, in dealing with plaintiff's claim for temporary relief.

In Goss v. Lopez, supra, the majority...