                                  NO. COA14-208

                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 2 September 2014


JOHN F. DONNELLY, JR.,
Petitioner/Appellant,

            v.                              Iredell County
                                            No. 13 CVS 848

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.


      Appeal by petitioner from judgment entered on 4 November

2013 by Judge W. David Lee in Iredell County Superior Court.

Heard in the Court of Appeals 14 August 2014.


      RECH LAW, P.C., by Kate A. Rech for petitioner-appellant.

      Attorney General Roy Cooper, by Assistant Attorney General
      Matthew Tulchin, for respondent-appellee.


      STEELMAN, Judge.


      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.
                                                 -2-
Stat. § 150B-51. University officials did not misuse their power

to retaliate against petitioner.

                            I. Factual and Procedural Background

    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.
                                                    -3-
      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
                                          -4-
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.

                         II. First Amendment Rights

    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.

                           A. Standard of Review

            (b) The court reviewing a final decision may
            affirm the decision or remand the case for
            further proceedings. It may also reverse or
            modify the decision if the substantial
            rights of the petitioners may have been
            prejudiced because the findings, inferences,
            conclusions, or decisions are:
                 (1) In    violation   of  constitutional
                 provisions;
                 (2) In     excess   of   the   statutory
                                       -5-
                  authority or jurisdiction of the agency
                  or administrative law judge;
                  (3) Made upon unlawful procedure;
                  (4) Affected by other error of law;
                  (5) Unsupported by substantial evidence
                  admissible under G.S. 150B-29(a), 150B-
                  30, or 150B-31 in view of the entire
                  record as submitted; or
                  (6) Arbitrary, capricious, or an abuse
                  of discretion.
             (c) In reviewing a final decision in a
             contested case, the court shall determine
             whether the petitioner is entitled to the
             relief sought in the petition based upon its
             review of the final decision and the
             official record. With regard to asserted
             errors pursuant to subdivisions (1) through
             (4) of subsection (b) of this section, the
             court shall conduct its review of the final
             decision using the de novo standard of
             review. With regard to asserted errors
             pursuant to subdivisions (5) and (6) of
             subsection (b) of this section, the court
             shall conduct its review of the final
             decision using the whole record standard of
             review.

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)). “When an appellate court reviews a

superior     court     order    regarding    an   agency        decision,    ‘the

appellate court examines the trial court's order for error of

law.   The   process    has    been   described   as   a   twofold   task:   (1)
                                       -6-
determining whether the trial court exercised the appropriate

scope of review and, if appropriate, (2) deciding whether the

court did so properly.’” 356 N.C. at 14, 565 S.E.2d at 18.

                                   B. Analysis

       “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, 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, 105 L. Ed. 2d 342 (1989)

(quoting United States v. O'Brien, 391 U.S. 367, 376, 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, 41 L.Ed.2d 842 (1974)).
                                      -7-
     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,    21     L.Ed.2d    731

(1969); Brown v. Louisiana, 383 U.S. 131, 141–42, 15 L.Ed.2d 637

(1966); United States v. Grace, 461 U.S. 171, 176, 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)

(holding that a West Virginia statute prohibiting use of the

telephone to harass others did not violate the First Amendment,

as   the    statute    required     specific     intent      to    harass,     thus

indicating that the legislature sought to criminalize conduct

rather than speech by protecting citizens from harassment in an

evenhanded and neutral fashion).

     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
                                     -8-
petitioner’s argument that UNC athletic facilities are a public

forum.

    This argument is without merit.




            III. N.C. Gen. Stat. § 150B-51 Violations

    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.

                          A. Standard of Review

    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).

                                 B. Analysis
                                          -9-
     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 without

determining principle.” Ward v. Inscoe, 166 N.C. App. 586, 595,

603 S.E.2d 393, 399 (2004) (quoting Lenoir Mem. Hosp. v. N.C.

Dep’t of Human Res., 98 N.C. App. 178, 181, 309 S.E.2d 448, 450

(1990)). When a court applies the whole record test, it must

determine whether there is substantial evidence to justify the

agency’s decision. In re Lustgarten, 177 N.C. App. 663, 670, 629

S.E.2d   886,    890-91      (2006).   Substantial      evidence     is    “relevant

evidence a reasonable mind might accept as adequate to support a

conclusion.”     Id.

     UNC’s      decision       to   ban    petitioner       from     all   athletic

facilities indefinitely was not arbitrary, capricious, nor was

it   unsupported       by    substantial        evidence.   A   decision     by   an

administrative agency is arbitrary and capricious if it clearly

lacked fair and careful consideration. Bio-Med. Applications of

N. Carolina, Inc. v. N. Carolina Dep't of Human Res., Div. of

Facility Servs., Certificate of Need Section, 136 N.C. App. 103,

111, 523 S.E.2d 677, 682 (1999).

     UNC’s decision was based on a series of incidents over a

number   of     years       where   petitioner      engaged     in   inappropriate

behavior toward UNC athletes, the family members of athletes,
                                     -10-
athletic staff members, and fans. This was not the first time

that petitioner was reprimanded for this type of behavior. The

Final University Decision summarizes a long series of events

which led to the indefinite ban. It is clear that UNC’s decision

was   not   an    “unreasonable    action    without   consideration   or   in

disregard    of    facts,”   nor    did     the   decision   lack   “relevant

evidence a reasonable mind might accept as adequate to support a

conclusion.”

      Petitioner also argues that UNC violated N.C. Gen. Stat. §

150B-51 because UNC officials did not follow the procedure set

forth in the Department of Public Safety’s General Order on

trespass warnings. The General Order states that:

            I. Trespass Warning

            A. After determining that a person has no
            legitimate business or education purpose in
            a University facility or on University
            property, a formal “Notice of Trespass,”
            which is valid indefinitely, may be issued.
            The Notice should be precise enough to
            alleviate any question as to the specific
            restrictions being imposed.

            B. The information contained in the “Notice
            of Trespass” should be read to the offender.
            Any questions from the offender should be
            answered if possible. Issuance of the notice
            should be witnessed by another officer. The
            notice should be signed by the violator or
            “Refused” should be written by the officer
            if the violator doesn’t cooperate.

            II. Right of Appeal
                                          -11-
            The offender should be informed of his/her
            right of appeal.

    UNC     determined         petitioner     had   no   legitimate      business    or

educational purpose on university property due to his pattern of

inappropriate      behavior       and    issued     a   Notice   of    Trespass    that

clearly     stated       the     restrictions       imposed.       The    information

contained    in    the      Notice      was   discussed     with      petitioner    via

telephone    and     sent      via   certified      mail.   Petitioner      was    also

informed of his right to appeal.

    Petitioner argues that because four lines on the Notice of

Trespass were left blank (date, time, witness name, and witness

signature), UNC officials did not follow proper procedure. This

Court has stated that:

            In determining the mandatory or directory
            nature of a statute, the importance of the
            provision   involved   may   be   taken    into
            consideration.   Generally   speaking,    those
            provisions which are a mere matter of form,
            or which are not material, do not affect any
            substantial right, and do not relate to the
            essence of the thing to be done so that
            compliance is a matter of convenience rather
            than   substance,   are   considered    to   be
            directory.

State v. Inman, 174 N.C. App. 567, 570, 621 S.E.2d 306, 309

(2005) (quoting State v. House, 295 N.C. 189, 203, 244 S.E.2d

654, 661–62 (1978)).

    Petitioner’s argument is based on provisions of the General

Order that are a mere matter of form, are not material, and do
                                             -12-
not affect any substantial right. The procedure set forth in the

General Order is based on the assumption that there will be

immediate, on-site removal of trespassers. In the instant case,

the   events      leading    up    to    a    Notice     of    Trespass         being   issued

against petitioner occurred off-site, at a soccer tournament in

California. UNC made minor, but necessary, changes to its normal

procedure to accommodate the nature of this particular incident.

Nonetheless, UNC substantially complied with the goals of the

General Order. The goals of the General Order are to inform the

trespasser of the restrictions imposed upon him and inform him

of his right to appeal. Both of these goals were met.

      Any    procedural          error       committed        by    UNC    officials      was

therefore harmless and immaterial.

      This argument is without merit.

                                 IV. Retaliation Claim

      In    his    third    argument,          petitioner          contends      that    UNC’s

indefinite     ban    was    an    abuse      of     discretion        because     officials

misused     their     power        to    retaliate         against        petitioner.       We

disagree.

                                 A. Standard of Review

      As    described       in    Section       II    A,      above,      the    appropriate

standard of review for this argument is the whole record test.
                                      -13-
      “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).



                                   B. Analysis

      Petitioner   argues that the case of             Trulock v. Freeh     is

applicable to the instant case. Trulock v. Freeh is a Fourth

Circuit case involving a former Department of Energy official

who   wrote   a   magazine    article       charging   the   government   with

incompetence for their handling of alleged security breaches at

weapons laboratories. Trulock v. Freeh, 275 F.3d 391, 397 (4th

Cir. 2001). In that case, the court held that because “The First

Amendment guarantees an individual the right to speak freely,

including the right to criticize the government and government

officials,” public officials are “prohibited from retaliating

against individuals who criticize them.” Id. at 404.

      The issues in the instant case do not parallel the issues

in the case petitioner cites for this argument. The instant case
                                     -14-
does    not    involve    the   criticism   of    governmental    officials.

Therefore, Trulock v. Freeh is not controlling, nor do we find

it to be persuasive authority.

       This argument is without merit.

       AFFIRMED.

       Judge GEER concurs.

       Judge    HUNTER,     Robert    N.,   Jr.     concurs      in   result.
                                     NO. COA14-208

                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 September 2014


JOHN F. DONNELLY, JR.,
     Petitioner/Appellant,

       v.                                       Iredell County
                                                No. 13 CVS 848
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.



       HUNTER, JR., Robert N., Judge, concurring in the result.


       While I concur with the majority’s result, I am troubled

that   the     majority     only    briefly     references      United    States    v.

O’Brien, 391 U.S. 367 (1968) without applying all four prongs of

the test announced in that case.

       Under    the    First        Amendment     and     the     North     Carolina

Constitution,      speech     is     given    broad     protections,      save     for

certain exceptions.         See United States v. Stevens, 559 U.S. 460,

468    (2010)     (holding         that   “obscenity,      defamation,        fraud,

incitement,      and   speech       integral     to     criminal     conduct”      are

exceptions      that   do    not    receive     First    Amendment       protections

(internal      citations      omitted));       Ashcroft    v.      American      Civil
                                             -2-
Liberties       Union,     535   U.S.      564,    573      (2002)    (“[A]s     a    general

matter, the First Amendment means that government has no power

to restrict expression because of its message, its ideas, its

subject matter, or its content.” (citation and quotation marks

omitted)); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50,

54   (1988)      (“At      the     heart     of    the      First    Amendment        is   the

recognition of the fundamental importance of the free flow of

ideas     and       opinions       on      matters       of    public       interest       and

concern. . . .          Of course, this does not mean that any speech

about a public figure is immune from sanction in the form of

damages.”); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,

383–84 (1992) (holding that exceptions to the First Amendment

include,      but    are     not     limited       to,      obscenity,      threats,       and

communications that incite lawless action); see also N.C. Const.

art. I, § 14.

     Conduct, however, may be regulated, as “[i]t has never been

deemed an abridgment of freedom of speech or press to make a

course of conduct illegal merely because the conduct was in part

initiated,       evidenced,        or   carried      out      by    means   of   language,

either spoken, written, or printed.”                     Hest Technologies, Inc. v.

State ex rel. Perdue, 366 N.C. 289, 296, 749 S.E.2d 429, 435

(2012),    cert.      denied,       ___     U.S.     ___,     134    S.   Ct.    99    (2013)
                                         -3-
(quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456

(1978)).

       The    majority      opinion      cites     the     O’Brien     test,         which

recognized that in some cases there is not a clear distinction

between      speech   and     conduct.         O’Brien     concerned       a   man    who

intentionally and illegally burned his draft card, but did so as

a form of protest against the draft.                    391 U.S. at 369–70.           The

Court explained that “when ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a sufficiently important

governmental interest in regulating the nonspeech element can

justify      incidental     limitations     on    First        Amendment   freedoms.”

Id. at 376 (emphasis added).               The United States Supreme Court

then    articulated       a    four-prong        test     to     determine     whether

government regulation of a course of conduct involving speech is

constitutional:

              [1] a government regulation is sufficiently
              justified if it is within the constitutional
              power of the Government; [2] if it furthers
              an important or substantial governmental
              interest; [3] if the governmental interest
              is unrelated to the suppression of free
              expression;   and  [4]   if  the  incidental
              restriction   on  alleged   First  Amendment
              freedoms is no greater than is essential to
              the furtherance of that interest.

Id. at 377.

       Here, it is essential to explain why Donnelly’s actions
                                         -4-
should be considered conduct and not speech, thus bringing his

actions under the O’Brien standard.                 This case provides a prime

example of the gray area between speech and conduct and thus

application     of     all     four    O’Brien      factors     is        appropriate.

Although some of Donnelly’s individual actions, such as sending

an e-mail or making a phone call may be classified as speech,

Donnelly’s      repeated        calls,     suggestive         and        inappropriate

comments, and other actions combine to become harassing conduct.

Taken    together,     Donnelly’s       actions     constitute       a    “course      of

conduct,” and O’Brien applies.

       The power of UNC officials to regulate harassment on campus

satisfies the first two prongs of the O’Brien test as it is (i)

within the power and (ii) in the interest of UNC administrators

to    provide   a    safe    environment    for     students.        While      UNC    is

preventing Donnelly from engaging in his free speech rights at

future UNC athletic events, record evidence shows that (iii) UNC

is    seeking   to    protect    its     students     and    employees       from     his

harassing    and     inappropriate       behavior    instead    of       intending     to

quash Donnelly’s right to speak freely.                     Under the fourth and

final prong, (iv) the restriction placed on Donnelly is not

greater than is essential to promote UNC’s legitimate interest.

The    University     previously       disciplined     Donnelly       to    a   lesser
                                        -5-
extent   and     notified    him   of      the   inappropriateness        of   his

behavior,      but   these   measures         failed     to   stop   Defendant’s

harassing   behavior.        For   these      reasons,    the   actions   of   UNC

administrators against Donnelly satisfy all four criteria of the

O’Brien test and Donnelly’s behavior is not protected by the

First Amendment.
