State high court hears media suit

Molly Moker

The state Supreme Court heard arguments Wednesday from the University and five media groups regarding the news organizations’ November 2002 lawsuit.

The St. Paul Pioneer Press, the Star Tribune, The Minnesota Daily, the Rochester Post-Bulletin and the Minnesota Joint Media Committee argued that the University broke state public information laws when it withheld University presidential candidates’ names and conducted confidential meetings.

But University General Counsel Mark Rotenberg – representing the Board of Regents – argued that in this case the University is exempt from public information laws because of its constitutional autonomy.

Rotenberg argued to the state Supreme Court justices first, followed by a response from John Borger, the attorney representing the five media outlets.

Rotenberg said finding the University’s president is something that needs to be confidential in order to ensure the best candidates.

“No government issue is more important for the Board of Regents than choosing the University’s CEO,” Rotenberg said.

He said some candidates – ones the board seriously considered – asked to remain anonymous during the presidential search. It is normal for presidents and provosts from universities to apply for positions at different institutions, he said.

Rotenberg said it would be embarrassing for candidates to return to their original establishments if they were rejected.

“When they go back to their universities, they have to answer: Why weren’t you chosen?

What’s wrong with you?” Rotenberg said.

Rotenberg said the fear of public embarrassment would prevent many strong applicants from applying. Keeping the process confidential ensures the best pool of candidates, he said.

Rotenberg frequently cited the University’s first state Supreme Court case regarding its autonomy, which took place in 1928.

In that case, the court ruled in favor of the University and reaffirmed the regents’ independence from legislative control over managing the University’s affairs, said Deborah McKnight, legislative analyst and attorney in the state House.

Rotenberg also looked to a past Michigan Supreme Court case for support during his argument.

In 1999, Michigan State University was brought to the Michigan Supreme Court for a similar case regarding a confidential

presidential search, Rotenberg said.

The Michigan Supreme Court ruled the open meeting law unconstitutional and said it did not apply to Michigan State’s presidential search, he said.

“The Michigan case is most applicable to our situation,” Rotenberg said in an interview. “And (Michigan State’s) constitutional autonomy mirrors ours the most closely of all the states. We really hope the court looks at that case closely.”

State Supreme Court justices asked Rotenberg how far the

University can take its

constitutional autonomy power and if the University needs to be regulated more closely in regard to releasing information.

Rotenberg said the University does not use its constitutional autonomy to extremes and that the University responds to “99.9 percent” of requests for information.

Borger said the University’s decision to keep candidates confidential was an unnecessary measure.

“Not all of the candidates even requested confidentiality; only some did,” Borger said. “And there’s no indication that they didn’t just say, ‘Sure, we’d like that.’ “

Borger said as far as he knew, University President Bob Bruininks did not request secrecy in the presidential search.

Borger said the University is required to follow general laws, such as the Data Practices Act, which requires certain data to be open to the public, and the open meeting law. Policy matters should be left to the Legislature to enforce, he said.

“For laws that are truly general, nonspecific to the University and that serve public policy Ö the Board of Regents needs to comply,” Borger said.

After the appeals, both sides said they felt confident with their arguments.

“The court looked well engaged,” Borger said. “We’ll just have to wait to see what they decide.”

Borger said four to six months could pass before the court rules.