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‘ND 88' Claim Unfair Treatment

South Bend Tribune Staff Writers
April 30, 2010

SOUTH BEND — Anti-abortion activists arrested last spring for allegedly trespassing at the University of Notre Dame are claiming their cases were handled unfairly compared with past protesting groups at the college.

The anti-abortion protesters of last spring cite two groups: Soulforce and activists from the Catholic Worker movement who separately protested causes at Notre Dame in 2007.

A Tribune investigation on the issue has found there have been variations in how some protesters were handled at the university.

Only members of the Notre Dame community may organize and lead a demonstration on campus, according to du Lac, the university's policy handbook.

The policy requires that all demonstrations be registered in writing with the associate vice president for residence life. Demonstrations may not impede the freedom of the university community, and all demonstrations must be peaceful and orderly, according to the policy.

About 100 people were arrested on Notre Dame property last May while protesting President Obama's selection as commencement speaker. Protesters said Obama, who is pro-choice on the issue of abortion, should not have been invited to speak and receive an honorary degree at the Catholic university.

At least 88 of those charged with misdemeanor trespassing turned down an opportunity to pay fines and end their legal cases, asking instead for trials. Nearly all are from out of state.

One woman who pleaded guilty in the case was ordered to pay $166 in court costs and was sentenced to the 10 hours in jail that she already had served after her arrest.

During a recent court hearing for the protesters — known as the "ND 88" — St. Joseph Superior Court Chief Judge Michael Scopelitis ruled that the defense can move forward with discovery requests from the university.

The requests previously had been halted by Judge Jenny Pitts Manier until further matters in the case could be cleared up. Scopelitis has taken the case over from Manier, who recused herself after the defense raised conflict-of-interest concerns.

Thomas Dixon, the attorney representing the ND 88, said part of the discovery request submitted to Notre Dame includes: who made the decision to have the defendants arrested, the factual basis of those arrests, details of Notre Dame's demonstration policy, and whether that policy is applied uniformly.

Dixon said the defense also has questions about two other groups that previously protested on campus, groups Dixon has been told faced lesser consequences.

The attorney is referring to members of the Catholic Worker movement and of Soulforce, a group that advocates for acceptance of gays and lesbians on college campuses. Soulforce members say they were arrested for trespassing at Notre Dame in March 2007 but never faced any formal charges.

St. Joseph County Police jail booking data shows none of the Soulforce members was ever booked into the county jail, nor were their names ever listed as being charged in courthouse records.

Only one person from the Catholic Worker protest of Notre Dame's ROTC program was officially charged, according to court records, but those charges were dropped.

Soulforce protest

On March 8 and 9, 2007, members of the Soulforce Equality Ride visited Notre Dame to promote greater tolerance and acceptance of gay, lesbian and bisexual students.

Soulforce members and several students gathered on campus to encourage dialogue about gay rights issues, according to the activists. The Soulforce members were issued trespassing notices and told by campus police to leave, which they did, said Delfin Bautista, one of the activists who participated.

The group returned the following day planning to place wreaths near the statue of Notre Dame graduate Dr. Tom Dooley at the Grotto.

They were stopped as they walked onto campus, and they were told to leave, Bautista said in a telephone interview Friday. Bautista said that when they refused, he and five others were told by campus police officers that they were under arrest for trespassing.

They were taken to the campus security building, where they were confined to a room and their photos were taken, he said. They were not taken to jail. An hour or so later, campus police transferred the six into a van and drove them back to their hotel, Bautista said.

Campus police said they should expect to receive a notice from St. Joseph County of when they would be required to appear in court to face the charges, but that never happened, Bautista said.

"We never heard another word," said Bautista, who is a student at Yale Divinity School.

Bautista said he still has two identical yellow slips of paper — Notre Dame trespass notices — he received on those two days. They are marked with the date and time and stamped with the signature of William Kirk, Notre Dame's associate vice president of residence life.

Bautista doesn't believe he and the other Soulforce members actually were arrested. "It was just a setup to get us off campus," he said.

Soulforce activist Haven Herrin, of Minneapolis, stated those same basic facts in an interview Friday. Although she and other group members were handed trespass notices and told they were under arrest, nothing came of it, she said.

"We never had to go to court or pay a fine, and it's not on our records. They did not follow through on it," Herrin said. "I think they were trying to make it clear they didn't want us on campus, but they didn't want the hullabaloo of an arrest."

Court officials point out that trespassing citations are different from written warnings issued by property owners to trespassers.

Official trespassing citations from police require an offender to appear in court, according to St. Joseph County Prosecutor Michael Dvorak. The citations then go to the prosecutor's office to be processed.

A warning from a place of business or private property owner generally states a person is trespassing and must not return. If the person fails to comply and returns to the property, owners must be able to prove they issued a prior warning either in print, or verbally, to the offender.

ROTC protest

George F. Arteaga of St. Louis was arrested during a protest on campus against the ROTC program. On March 26, 2007, near the Main Building, members of the Catholic Worker movement protested the university's involvement in the military training program.

Arteaga was arrested before the rally while attempting to hang a banner on a campus war memorial. Nine others received trespassing citations, and three people received trespassing notices, The Tribune reported at the time.

In a telephone interview Friday, Arteaga said campus police arrested and handcuffed him, then drove him to the county jail. He was booked in jail and spent the night there, and told he would appear before a judge at 1 p.m. the next day.

Instead, a jail guard opened his cell at 11 a.m. the next day and said, "We're letting you go," Arteaga recalled. He never had to appear before a judge and never heard from the court system.

Court records show Arteaga was formally charged with trespassing and criminal misconduct but that the charges were dismissed by the prosecutor's office.

"No one ever explained why," he said.

A spokeswoman for the prosecutor's office said Friday that information about why the charges were dismissed was not readily available because of the age of the case. Office officials were searching for more details but could not compile them by the time of this report.

Dvorak said this week that he could not comment specifically on the ND 88 case because of the pending litigation.

But in general, Dvorak said, cases of every kind are prosecuted based on the strength of the evidence and that the prosecutor's office is consistent with prosecuting procedures regardless of victim or complaining party. He added that not any two cases are the same and that each is judged based on its individual facts.


Some sought arrest

Some anti-Obama protesters showed up at Notre Dame last spring planning to be arrested.

Anti-abortion activist Randall Terry's group issued news alerts in the days before commencement encouraging the public to watch live online "the prayerful procession and possible arrest of Dr. Alan Keyes, Norma McCorvey" ("Jane Roe" of Roe vs. Wade) and others as they walked onto campus on the Friday and Saturday of commencement weekend.

Keyes also announced in advance that he intended to be arrested. He was arrested twice for trespassing in May.

Today, Dixon says the arrests of his clients were unwarranted and that all the cases should be dismissed.

"We don't see any purpose in prosecuting these cases," he said. "How would that benefit the county?"

During the recent hearing, Scopelitis denied Dixon's motion for dismissal.

"No admissible evidence was submitted by the defense in support of their allegations that the arrests of and charges against the defendants are in violation of their rights of free speech," the judge wrote.

The judge did allow for a possible future evidentiary hearing to further review the motion to dismiss after more information currently in dispute is resolved, Dixon said.

Staff writer Alicia Gallegos:
(574) 235-6368

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