Media outlets, U look out of state for precedents in president-search suit

A 1999 Michigan case supports the University, while newspapers cite a 1985 ruling in Mississippi.

by Molly Moker

After being sued by a group of media outlets in 1999, Michigan State University appeared in front of the state Supreme Court and argued that because of the university’s constitutional autonomy, the state’s public information laws did not apply to its confidential presidential search.

The court ruled in favor of the university.

University General Counsel Mark Rotenberg said he hopes the Minnesota Supreme Court will use this case as a precedent for the Board of Regents’ pending case against the Star Tribune, the St. Paul Pioneer Press, The Minnesota Daily, the Rochester Post-Bulletin and the Minnesota Joint Media Committee.

But Rotenberg’s opponent, Star Tribune attorney John Borger, said the logistics of the comparison are unfounded. A local expert said looking to other states’ rulings might be worthless for both sides.

Rotenberg cited the 1999 Michigan State University case in his Minnesota Supreme Court appeal Wednesday and said it held merit in his argument.

“The Michigan Supreme Court decided the open meeting law was unconstitutional for the university’s presidential search,” Rotenberg said. “We believe this case is the closest to ours, and their constitutional autonomy mirrors ours most closely of all the states.”

The Michigan Supreme Court ruled the Michigan Legislature does not have power to regulate open meetings in the context of presidential searches.

But Borger said the Michigan case cannot serve as a model for the University’s case because of differences in constitutional provisions.

He said Michigan’s constitution includes an explicit provision regarding the university’s autonomy. The provision states that formal meetings must be open but informal meetings can be held privately. Michigan State University claimed its presidential search was an informal meeting.

Borger said the University has no such provision in its constitutional mention.

Although Minnesota’s constitution recognizes that the University is run by the board, it does not state that the regents can conduct public business in secret, he said.

In the constitution, the University is defined as a public institution. Borger said public institutions owe the public meaningful access to the decision-making process, not just final decisions.

Borger said there are at least 20 states in which universities have constitutional mention of autonomy. Although Borger said laws and language vary from state to state, courts in 16 states have applied open-meeting or open-record laws to their universities.

In a brief prepared for Wednesday’s court appearance, Borger cited a 1985 case that involved the Mississippi Board of Trustees of State Institutions of Higher Learning against the Mississippi Publishers Corporation.

In that case, the Mississippi Supreme Court ruled the state board violated Mississippi’s Open Meetings Law when trustees held informal fact-finding meetings with university presidents and staff.

Mary Jane Morrison, a Hamline University constitutional law professor, said using other state’s cases in arguments will not be a golden ticket for either side.

“It’s dangerous to rely too heavily on different rulings in different states,” Morrison said. “Other jurisdictions can offer guidance, but they’re never perfect to rely on.”

Morrison said the University must abide by general laws, with the exception of laws that jeopardize the University’s mission to provide quality education.

Morrison said if the University does not win its case in the state Supreme Court it will have the final option of asking the Legislature for an exemption from the Open Meeting Law.

She said the University would have to draft a bill asking for its presidential search to not be subject to the state’s Open Meeting Act.

“It would be simple enough and I’m sure the University is quite capable of doing this,” Morrison said. “But it is a very serious thing to amend the constitution.”