Mark Friese: North Dakota State University Officials Broke The Law

Imagine you are a parent who sends a child to North Dakota State University, facing skyrocketing tuition and an exploding campus police budget, and you learn that campus police are engaging in off-campus enforcement on a 10 to 1 basis. That’s why a recent ruling from our state’s highest court is important.

In the recent Kroschel v. Levi opinion, the North Dakota Supreme Court held North Dakota law does not allow campus police officers to exercise law enforcement authority, except on university property. The Court’s decision is consistent with the decisions of every other state appellate court addressing similar issues, and honors clear limitations on police authority established by the North Dakota Legislature.

In North Dakota, police jurisdiction has always been geographically limited. State crime bureau agents have statewide jurisdiction, while state patrol troopers have jurisdiction on all state property and all roadways, including city streets. Sheriffs and their deputies have countywide jurisdiction, including full jurisdiction within cities situated within the county. Municipal police officers have jurisdiction throughout the corporate limits of the city, and up to one and one half miles outside the city.

Campus police departments—a relatively new addition to North Dakota law—have jurisdiction at institutions under the control of the Board of Higher education—i.e., campuses and university property. Only three North Dakota campuses employ sworn police officers: NDSU, UND, and NDSCS. Many other campuses employ security or safety officers, but not licensed law enforcement officers. Some disagreement lingers about whether universities should hire security officers versus sworn police officers, but the Legislature has provided the board of higher education with broad authority to employ licensed law enforcement officers at university institutions.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Quite simply, a handful of NDSU employees ignored the statue, and greatly exceeded their authority. Stated differently, those employees broke the law under the pretext of enforcing it.[/mks_pullquote]

In 2006, the NDSU finance and safety directors, along with the interim Fargo police chief and Fargo Mayor entered a “Memorandum of Understanding,” purporting to vest NDSU police officers with police jurisdiction throughout the City of Fargo. It appears the agreement was entered without consulting the Board of Higher Education or the attorney general. As a result of the agreement, NDSU campus police officers would regularly patrol off campus. Further, based on the agreement, all traffic citations and all class B misdemeanor offenses—like DUI, unlawful possession of alcohol, disorderly conduct, simple assault, etc.—would be cited into Fargo Municipal Court.

The North Dakota Constitution specifically provides that fines and fees generated for a violation of state law are to be deposited in the common school fund, yet under the agreement, fines and fees generated by the work of campus police officers are deposited into Fargo’s general fund. Simply, under the agreement and contrary to law, Fargo received free additional officers, and hundreds of thousands of dollars which, according to the state constitution, should have been deposited into the common school fund.

In February, 2014, an NDSU campus police officer was patrolling in a residential neighborhood, several blocks away from the NDSU campus. The officer observed Ms. Kroschel make an illegal turn, and after following her for several blocks, he stopped her. An investigation followed, and after establishing suspicion of impaired driving, the officer arrested Ms. Kroschel. At a later hearing, the arresting officer testified that in the first four months of 2014, he made ten DUI arrests off campus, and only one or two DUI arrests on campus during the same time period. In the legal proceedings that followed, Ms. Kroschel argued that without approval of the board of higher education and the attorney general, NDSU campus police cannot perform routine patrols outside campus property. Those arguments were rejected by an administrative hearing officer and later, a district court judge.

On appeal, the North Dakota Supreme Court reversed, concluding the legislative limitation on campus police authority is clear: “The Department does not offer nor do we find authorization for the board to enter its law enforcement agency into joint powers agreements outside its institutions.” The court further held that the agreement at issue “was deficient because it lacked execution and approval by the board of higher education and determination by the attorney general that the agreement is legally sufficient.”

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]At a later hearing, the arresting officer testified that in the first four months of 2014, he made ten DUI arrests off campus, and only one or two DUI arrests on campus during the same time period.[/mks_pullquote]

Because of the improper diversion of proceeds, and because the controlling statute plainly limits campus police authority to institutions, it seems obvious that the attorney general and board of higher education would not have approved the agreement if it were presented to them. Quite simply, a handful of NDSU employees ignored the statue, and greatly exceeded their authority. Stated differently, those employees broke the law under the pretext of enforcing it.

These cases are often difficult because the legal issues are presented in the context of an accused asking a court to suppress evidence, or like in this case, asking a court to dismiss a proposed driver’s license suspension. Because of that context, many are offended when a court decision results in suppression of evidence or reinstatement of a driver’s license. But what if the question was presented in the context of a complaint by a victim who has been sexually assaulted walking from a remote parking lot to a dormitory, all while the sole on duty campus police officer has left his post to conduct patrols deep into residential or business areas off campus?

What if the question was presented in the context of a campus officer engaged in misconduct while on duty patrolling off campus, all while elected and appointed city leaders have no say in the selection, training, supervision, or discipline of that officer? As courts have recognized, these are difficult and controversial issues more suitable for open debate and resolution by lawmakers rather than courts. Considering these competing interests, the North Dakota Legislature authorized the board of higher education to employ sworn law enforcement officers, but only on campuses or campus property.

Some shamefully ignored those limits. While it is possible that the Legislature may revisit the issue and expand campus police jurisdiction, it is equally possible that the Legislature may rightfully conclude that individual campuses cannot be entrusted with expanded authority, and as a result, abolish campus police departments altogether in favor of campus security officers. For now, the North Dakota Supreme Court’s decision properly recognizes the Legislature and Board of Higher Education, not campus finance or safety directors, determines the jurisdictional limits for campus police.