WVU 'trespassing form' vague, federal judge says

By Jessica M. Karmasek | Mar 3, 2011


CLARKSBURG -- A U.S. District judge has ruled that West Virginia University's policy of issuing "trespassing forms" is unconstitutionally vague and that one man's issuance of the form was a violation of his procedural due process rights.

Judge John Preston Bailey, of the U.S. District Court for the Northern District of West Virginia, filed his 18-page order granting Kenneth Williams' motion for summary judgment on Wednesday.

According to court documents, WVU has a policy whereby university police can issue a trespassing form to any individual that an officer deems, in his or her discretion, to have acted in such a manner that the individual should be banned from some or all WVU property and to determine, in his or her discretion, the scope and length of time of the ban.

"The decision should remind all of us of the importance of the Constitutional protections afforded to us, protections that are the envy of so much of the world," said Morgantown attorney Allen N. Karlin, who represented Williams.

In this case, the plaintiff, Williams, was issued a WVU Department of Public Safety Trespassing Form because of alleged conduct in the Mountainlair student union that "interfered with the peaceful or orderly operations" of the university.

The form barred him from "all buildings in or adjacent to West Va. University without written permission of the Director of Public Safety." It stated that if he returned to "all buildings in or adjacent to West Va. University without written permission of the Director of Public Safety," a warrant for his arrest would be obtained. The form had no expiration date and did not identify or advise Williams of any appeal rights.

In his motion for summary judgment, Williams contends that the policy and practice at WVU, including the university's action in issuing the trespass form in this case, violates the constitutions of West Virginia and the United States in one or more of the following respects:

* WVU has no written policies that articulate guidelines or standards as to when to issue a trespassing form, as to the type of conduct or behavior that justifies the issuance of a trespassing form, as to the scope of the area covered by the form, or as to the duration of time that the form will be in effect;

* The university provides no training to its officers on how or when to issue the trespassing forms, the area to be covered by the form, or the duration that the form is to remain in effect;

* At the time that Williams was issued the form, WVU issued it to individuals without any articulated procedure for the individual to contest the form or to appeal its issuance; and

* If there were notice of an appeal, that appeal procedure would not offer due process because there are no guidelines or standards to guide the appellate officer in his or her decision.

Williams also contends that issuing the trespassing form under current WVU policies "criminalizes behavior, stigmatizes the individual receiving the form, and interferes
with liberty interests without due process of law."

In response, the defendants -- WVU's Board of Governors, WVU President James Clements, and Bob Roberts, director and chief of the WVU Police Department -- argue that the Mountainlair is not a public place for purposes of constitutional analysis and that the plaintiff was "properly excluded" from the Mountainlair based on West Virginia Code § 61-3B-4.

Specifically, the defendants argue that the officer's discretion in issuing trespassing forms is "sufficiently limited."

Further, the university contends that there was an appeal process available to the plaintiff and that he availed himself of that process when he contacted Roberts to request permission to attend an on-campus event.

According to state code, a "student facility" is defined as one "owned, operated or controlled by an institution of higher education at which alcoholic liquor or nonintoxicating beer is purchased, sold or served to students enrolled at such institution, but does not include facilities at which athletic events are regularly scheduled and an admission fee is generally charged."

Bailey said this statute limits the term "student facility" to include only those establishments on campus which serve alcohol. For this reason, the court finds that the portion of the Mountainlair in which Williams was found is not a "student facility."

"If the entire Mountainlair were a 'facility at which alcoholic liquor or nonintoxicating beer was sold or served,' then students and other persons under the age of 18 would not be permitted to be there unless accompanied by a parent," he wrote.

However, the plaintiff does not challenge the constitutional validity of the statute, but the constitutionality of the university policy that permits the issuance of the trespassing forms, Bailey noted.

The form issued to Williams was allegedly issued pursuant to West Virginia Code § 61-3B-4(b), "yet nothing in that statute authorizes the banning of an individual from all or a portion of the university campus," Bailey wrote.

According to court documents, the officers noted that Williams scared some of the patrons and employees of the Mountainlair -- he was sitting in the food court area of the Mountainlair, wearing a trench coat, and carrying a Dollar General bag.

The statute provides for Williams' removal "... notwithstanding the fact that he... has not interfered with the peaceful or orderly operation of such residence hall or student facility or otherwise committed a breach of the peace or violated any statute or ordinance."

Bailey pointed out that the citation issued to Williams stated that he had "interfered with the peaceful or orderly operation of such residence hall or student facility or otherwise committed a breach of the peace or violated any statute or ordinance."

"Here, the statute provides for removal of plaintiff -- not based on arbitrary or fluctuating standards of behavior -- but based on no standards at all," Bailey wrote. "The policy of issuing Trespassing Forms, on its face, is vague and violates plaintiff's procedural due process rights."

Based on the text of the statute and the lack of any criteria for the issuance of a trespassing form, an individual can be excluded from the premises "based on the whim of a WVU officer," the judge wrote.

Even assuming that the statute was not unconstitutionally vague and that Williams had been properly excluded from the Mountainlair, the lack of appeal process after the issuance of the trespass form also was a violation of his procedural due process rights, Bailey said.

His procedural due process rights were violated when he was excluded not only from the WVU campus but also adjacent buildings and lawns, the judge said.

The university argues that an appeals process was provided because individuals who are issued such a form may appeal to Roberts. Bailey, in his order, didn't see it that way.

"The problem with defendants' contention is that the form issued to plaintiff -- nor any other document provided to the Court -- states that plaintiff was to contact Chief Roberts in order to appeal the trespassing form," the judge wrote.

WVU also argues that because Williams contacted Roberts to be allowed back on campus to attend his daughter's graduation, that he did avail himself of the appeal process.

Not so, Bailey concluded.

"An appeal provides an individual with notice and the opportunity for a hearing. At the hearing, it is the burden of the school to show that the cited individual violated the statute providing for his or her exclusion.

"Here, the only evidence before the Court shows that plaintiff e-mailed Chief Roberts requesting permission to return to campus, and that he was granted access to the campus for one day. There was no hearing, and no burden placed on the WVU officers to show that plaintiff was properly excluded from campus."

The judge ordered that the trespassing form issued to Williams is vacated, and that both Williams and the university shall file their supplemental memorandums on damages.

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