Kirstel v. State

ORTH, J., delivered the opinion of the Court. THE CONSTITUTIONALITY OF CODE, ART. 27, § 577B MARK RICHARD KIRSTEL asks us to declare Chapter 627, Acts 1969, unconstitutional. Effective 1 July 1969, it added new § 577B to Code, Art. 27, title “Crimes and Punishments,” subtitle, “Trespass.” It concerns public educational institutions of this State — ” the Univer ⁴⁸⁵ sity of Maryland, any of the State colleges, any community college or public school.” Although set out in one paragraph with no subheadings it has two aspects. For ease of reference we shall refer to the first as the “denial of access” aspect and the second as the “criminal offenses” aspect.

We give a compendium of its provisions: 1) Denial of Access Aspect the highest official or governing body of the University of Maryland, any of the State colleges, any community college, and any public school may deny access to the buildings or grounds of the institution a) to persons who are not bona fide, currently registered students, staff or faculty, who i) have no lawful business to pursue at the institution, or, ii) are acting in a manner disrupting or disturbing to the normal educational functions of the institution. To this end administration staff and personnel of such an institution may demand of any person desiring to use or come upon the premises identification and evidence that he qualifies for use of the premises. The denial of access aspect affects only the general public as distinguished from members of the academic community. Bona fide, currently registered students, staff and faculty at the institution are exempted from its provisions. 2) Criminal Offenses Aspect Whoever a) shall trespass upon the grounds of such institution, or b) refuses to or fails to leave the buildings or grounds of such institution after be ⁴⁸⁶ ing requested to do so by an authorized employee of the institution, or c) wilfully damages or defaces any of the buildings, furnishings, statues, monuments, memorials, trees, shrubs, grasses or flowers on the grounds of such institution shall be guilty of a misdemeanor and upon conviction fined not more than $1000, or imprisoned for not more than six months, or both.

The criminal offenses aspect applies to all persons, whether or not they are students, staff or faculty, who commit the proscribed acts. On 25 February 1971 a jury in the Circuit Court for Baltimore County found that Kirstel, who was not a student or member of the staff or faculty at Towson State College, had committed the misdemeanor of refusing or failing tó leave that institution’s grounds after being requested to do so by an authorized employee. He was sentenced to 60 days and fined $200; the confinement was suspended for 2 years. 1 Kirstel is entitled to a determination of the constitutionality only of those provisions of the Act under which he was convicted. 2 He was not affected by other provisions of the Act whether or not they are constitutional. 3 ⁴⁸⁷ The pertinent provisions are those which declare it to be a misdemeanor to refuse or fail to leave the buildings or grounds of the institution after being requested to do so by an authorized employee of the institution. But there are other provisions of the Act which are material to these pertinent provisions.

We think it constitutionally compelled that the request to leave not be arbitrary, capricious or in the unfettered discretion of the employee. There must be standards for him to follow and we find it to have been the legislative intent ta apply to the request to leave the same standards provided for the denial of access to the buildings or grounds, that is no lawful business to pursue at the institution or acting in a manner disruptive or disturbing to the normal educational functions of the institution. Of these two standards only the first is applicable to Kirstel in the facts and circumstances existent; we see no evidence sufficient to establish that he acted in a manner disruptive or disturbing to the normal educational functions of Towson State College. Therefore our inquiry is as to the constitutionality vel non of the legislature declaring it a crime for a person who has no lawful business to pursue at public educational institutions of this State to refuse or fail to leave the buildings or grounds of the institution after being requested to do so by an authorized employee.

Kirstel claims that the Act is unconstitutionally vague. “The general rule on vagueness, as it has been developed in connection with the construction of criminal statutes, is that all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ United States v. Petrillo (1947) 332 U. S. 1, 8 , 68 S. Ct. 1538 , 91 L. Ed. 1877 .” Sword, et al v. Fox, et al, 446 F. 2d 1091 (4th cir. 1971). We set out the rule more fully in Lashley v. State, 10 Md. App. 136 , 142: ⁴⁸⁸ “The requirement of a reasonable degree of certainty in the legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed of what State law commands or forbids; consequently, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

Lanzetta v. New Jersey, 306 U. S. 451 ; Connolly v. General Construction Co., 269 U. S. 385 .” We believe the provisions of the Act here considered meet the test of the rule on vagueness. Certainly the language of the Act that a person who refuses or fails to leave after being requested to do so is guilty of a misdemeanor conveys sufficiently definite warning as to what conduct is proscribed when measured by common understanding and practices. The act forbidden — not leaving after being requested — is precise, clearly expressed and delineated. No speculation is required as to the meaning of that provision; men of common intelligence need not necessarily guess at its meaning and differ as to its application.

Nor do we find vague the standard required for the request. We construe “lawful business” within the meaning of § 577B as we construed it in our consideration of § 577A in Anderson v. State, 12 Md. App. 186 . We find it means any constitutionally protected activity. On this construction we concluded in Anderson , at 192: “[T]he range of uncertainty inherent in the language is not such as would ‘broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Aptheker v. Secretary of State, 378 U. S. 500, 508 , quoting Shelton ⁴⁸⁹ v. Tucker, 364 U. S. 479, 488 .

We do not believe that the phrase ‘lawful business’ is so unprecise and has so uncertain a meaning that it fails to inform a defendant of the charge against him. We find that the statute does not offend the Due Process Clause of the Constitution because of it.” We adopt that conclusion here. We find that the provisions of § 577B before us are neither unconstitutionally vague as to the standards imposed nor unconstitutionally broad as applying to constitutionally protected conduct. We hold that they do not violate due process of law.

Kirstel also contends, but advances little argument in support thereof, that the Act violates “the right of free assembly and association” and the requisites of free speech. 4 We point out: “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” Cox v. Louisiana, 379 U. S. 536, 554 . See Adderley v. Florida, 385 U. S. 39 . And the Court said in Food Employees v. Logan Plaza, 391 U. S. 308 , 320: “Even where municipal or state property is open to the public generally, the exercise of First Amendment rights may be regulated so as to prevent interference with the use to which the property is ordinarily put by the State.” Or as Mr. Justice Fortas said: 5 “Public use does not authorize either the general public or the university faculty and students to use them in a way which subverts their purpose and prevents their intended use ⁴⁹⁰ by others. The public character of a university does not grant to individuals a license to engage in activities which disrupt the activities to which those facilities are dedicated.” So the freedoms of speech and assembly may not be exercised on public property without regard to its primary usage.

The State may enact and enforce reasonable, nondiscriminatory laws governing conduct in its buildings and on its grounds. We find that the provisions of § 577B are reasonable and non-discriminatory. We hold that the provisions here considered do not violate First Amendment guarantees of free speech and assembly. Kirstel, relying on Dunkel v. Elkins, 325 F. Supp. 1235 (U.S.D.C. D. Md. 1971), reads into the Act the requirement of an administrative hearing.

In Dunkel a three-judge court, finding that an educational institution possesses the power to suspend students and teachers for proper reasons, held “that a state university has no less a right to prohibit access to its campus to an ‘outsider’ to the university community if he has engaged in conduct which violates constitutional standards clearly embodied in state law, particularly if there is reason to believe that he will again engage in such conduct.” At 1245. But a proviso was added: “However, except in an emergency, such powers of control should not be exercised, without a prior administrative hearing, to deprive any person, as an individual, of access to a state university campus.” The court rejected the contention that § 577B was unconstitutional on its face because it failed to require a hearing since Code, Art. 41, § 251 of the Administrative Procedure Act requires a hearing in any “contested case” and § 244 (c) of that Article defines “contested case” to mean “* * * a proceeding before any agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.” Deeming the University of Maryland to be an “agency”, see Dunkel , note 23 at 1247, and in ⁴⁹¹ the light of its finding that there was a constitutional right to a hearing, it held that such hearing was prescribed by §§ 244 and 251. But the court was dealing with the “denial of access” aspect of the Act. Dunkel had been notified by letter from the President of the University of Maryland that henceforth he was denied access to that institution’s buildings and grounds and if found upon the premises or property would be subject to prosecution under the statute.

He brought an action for declaration of unconstitutionality of § 577B and requested that the court enjoin the President of the University of Maryland, the Governor and the State from enforcing its provisions against him or any other person. Thus the “criminal offense” aspect of the statute, unlike the instant case, did not come into play. Whether or not an administrative hearing is constitutionally required lawfully to deny a person access to the buildings and grounds of a designated institution, it is not so required when the criminal provisions of the Act are invoked. 6 Then the questions of “lawful business” and “disruptive acts” are not to be resolved at an administrative hearing but at a criminal trial. At the criminal trial the State must establish beyond a reasonable doubt that the accused had no “lawful business” to pursue or was engaged in “disruptive acts,” each of which is a matter for the trier of fact.

It follows therefore that if a person either before or after he has received notice denying him access persists in conduct which violates the criminal proscriptions of the statute, he thereby waives his right to an administrative hearing, where it may have been applicable, electing to have the questions of “lawful business” or “disruptive acts” determined by the trier of fact in a criminal trial. In other words, if a ⁴⁹² person received a notice denying him access but, before an administrative hearing can reasonably be held, he defies it and is arrested, or, being on the grounds or buildings of an institution, he is arrested because he fails or refuses to leave after being requested to do sq by an authorized employee who is satisfied under the reasonable man standard upon information obtained by demanding identification and evidence or otherwise that such person is not qualified for use of the premises, such person would not in any event be entitled to an administrative hearing, as all questions bearing on his guilt or innocence are then matters within the ambit of the criminal proceedings. We do not construe Dunkel as holding otherwise. The court pointed out, at 1248: “ [W] hat was immediately at issue after President Elkins served his May 18, 1970 notice on Dunkel was not the constitutionality of any possible future criminal proceeding growing out of any failure by Dunkel to abide by that section 577B notice, but rather the constitutional right of a campus outsider (Dunkel can so fairly be described) not to be excluded from the University’s campus, upon which he had a limited constitutional right to be present, without affording to him an administrative hearing to determine whether, in accordance with the standards provided by section 577B, the