University Board of Regents file motion to dismiss lawsuit

The media groups oppose the motion; arguments are set to begin this morning.

Josh Linehan

The legal battle lines are drawn and arguments are set to begin in the lawsuit filed by five Minnesota media organizations against the University’s Board of Regents.

Lawyers for the plaintiffs – which include The Minnesota Daily, Star Tribune, St. Paul Pioneer Press and Rochester Post-Bulletin – filed a memorandum opposing the University’s motion to dismiss. Argument on the motion will begin this morning in district court. Judge Pamela Alexander will hear the case.

The issue at hand is whether the regents violated Minnesota’s Data Practices Act and Open Meeting Law when it voted to close a meeting to discuss the ongoing presidential search. The Data Practices Act is akin to a state version of the federal Freedom of Information Act and assumes all government documents are public unless specifically mentioned in the statute. The Open Meeting Law requires public bodies to hold their meetings in public, unless specifically exempted in the statute.

Following the closure and the appointment of University President Robert Bruininks to replace Mark Yudof, the media organizations filed suit to require the University to divulge the names of other finalists as required by the Data Practices Act.

University general counsel Mark Rotenberg will argue the University may operate outside aspects of the Data Practices Act because of its unique charter – which was written before Minnesota became a state. Critical to the University’s argument is 1993 case law from Winberg v. University of Minnesota. In that case, the University was protected from having to comply with the same veteran’s hiring preference practices as other state agencies.

The University also extensively cites Federated Publications Inc. v. Board of Trustees of Michigan State University, a 1999 case in which the Michigan Supreme Court found Michigan’s open meeting law did not apply to the school’s presidential search process.

Attorneys for the media organizations countered by citing more than 20 cases in which courts in various states have ruled open meeting laws apply to universities.

Mark Anfinson, the Daily’s attorney, said though the motion to dismiss is preliminary and a decision is not likely for 30 to 60 days after the hearing, both sides consider the first opportunity to make arguments critical.

“The whole case may come down to this motion to dismiss,” Anfinson said. “This is the ballgame in a lot of ways.”

Anfinson also said lawyers for the plaintiffs hoped to begin deposing the regents and collecting discovery information after the hearing. In their response to the motion to dismiss, the attorneys for the media organizations claim their request for pretrial discovery materials have not been met.

The Daily sued the University in a similar case involving a presidential search in the 1980s. In that case, the regents closed all meetings of the presidential search committee while leaving regents’ meetings open. In 1988, the Minnesota Court of Appeals found in favor of the University, stating that since the search committee had no official decision-making power, it was not bound by the Open Meeting Law.

Josh Linehan welcomes comments at [email protected]