Regents’, media groups’ dispute awaits judgment

Josh Linehan

The fate of a lawsuit that might fundamentally affect the way the University Board of Regents operates is now in the hands of a Hennepin County District Court judge.

Judge Pamela Alexander heard legal arguments in the case pitting most of Minnesota’s largest media organizations against the regents last Friday morning.

At issue is the regents’ resolution suspending what they claim is their voluntary compliance with the state’s Open Meeting Law and Data Practices Act.

The board passed the resolution in order to meet secretly regarding the selection of finalists to replace former University President Mark Yudof. The regents ultimately selected Robert Bruininks – who was already serving as interim president – for the job.

The media organizations – including The Minnesota Daily, Star Tribune, St. Paul Pioneer Press and the Rochester Post-Bulletin – filed suit asking the names of the other finalists be publicly released.

Alexander heard arguments on Friday on the University’s motion to dismiss and the media groups’ motion for summary judgment during the case’s first hearing.

John Borger, attorney for the Star Tribune, argued that if Alexander does not grant the motion to dismiss, she should proceed to make a summary judgment, mainly because the University had stipulated to the facts as laid out in the media organizations’ motion.

Lorie Gildea, University associate general counsel, argued on behalf of the regents, offering defense on both statutory and constitutional grounds.

Since the regents are endowed by the state constitution with exclusive power to do what is best for the University, Gildea said, their suspension of state law was justified.

She also argued the step was not merely a procedural issue but a “major policy decision” the regents took only when convinced they would not be able to purse a full list of candidates if finalist’s names were made public.

Alexander questioned Gildea about the central tenet of the regents argument – that many qualified applicants would withdraw their names from consideration rather than have their names publicized before accepting the job.

“Don’t people look for jobs all the time?” Alexander asked.

Borger, who argued on behalf of the plaintiffs, rejected the argument that in hiring a new president, the regents found form becoming function.

“The paramount issue here is that the private desires of some unnamed job seekers should not interfere with the public’s right to know what their government institutions are doing,” he said.

Gildea’s constitutional argument on behalf of the regents relied heavily on a 1999 case from the Michigan Supreme Court that is very similar to the current proceedings.

The finding by the court in the case involving a presidential search at the University of Michigan – which has a constitutional mandate much like Minnesota’s – was in favor of the university, holding that Michigan’s open meeting law did not apply to that university’s presidential search, according to legal papers filed by Gildea.

But Borger argued the case did not really apply, since in Michigan the names of finalists had been made public.

As a statutory defense, Gildea offered a 1998 Minnesota Supreme Court decision in a case involving a municipal power agency created by legislative process. In that case, the court held that the Open Meeting Law and Data Practices Act did not apply to such an agency because they would directly interfere with the purpose for which it was created.

Borger countered by pointing out that the utility company was created as a private body while the regents were created as a public body.

The hearing lasted just more than an hour, and Alexander promised to make her decision shortly.

Mark Anfinson, attorney for the Daily, said such a decision typically takes 30 to 60 days.

Josh Linehan covers legal affairs and welcomes comments at [email protected] in order to meet secretly regarding the selection of finalists to replace former University President Mark Yudof. The regents ultimately selected Robert Bruininks – who was already serving as interim president – for the job.

The media organizations – including The Minnesota Daily, Star Tribune, St. Paul Pioneer Press and the Rochester Post-Bulletin – filed suit asking the names of the other finalists be publicly released.

Alexander heard arguments on Friday on the University’s motion to dismiss and the media groups’ motion for summary judgment during the case’s first hearing.

John Borger, attorney for the Star Tribune, argued that if Alexander does not grant the motion to dismiss, she should proceed to make a summary judgment, mainly because the University had stipulated to the facts as laid out in the media organizations’ motion.

Lorie Gildea, University associate general counsel, argued on behalf of the regents, offering defense on both statutory and constitutional grounds.

Since the regents are endnly when convinced they would not be able to purse a full list of candidates if finalist’s names were made public.

Alexander questioned Gildea about the central tenet of the regents argument – that many qualified applicants would withdraw their names from consideration rather than have their names publicized before accepting the job.

“Don’t people look for jobs all the time?” Alexander asked.

Borger, who argued on behalf of the plaintiffs, rejected the argument that in hiring a new presideonal argument on behalf of the regents relied heavily on a 1999 case from the Michigan Supreme Court that is very similar to the current proceedings.

The finding by the court in the case involving a presidential search at the University of Michigan – which has a constitutional mandate much like Minnesota’s – was in favor of the university, holding that Michigan’s open meeting law did not apply to that university’s presidential search, according to legal papers filed by Gildea.

But Borger argued the case did not really apply, since in Michigan the names of finalists had been made public.

As a statutory defense, Gildea offered a 1998 Minnesota Supreme Court decision in a case involving a municipal power agency created by legislative process. In that case, the court held that the Open Meeting Law and Data Practices Act did not apply to such an agency because they would directly interfere with the purpose for which it was created.

Borger countered by pointing out that the utility company was created as a private body while the regents were created as a public body.

The hearing lasted just more than an hour, and Alexander promised to make her decision shortly.

Mark Anfinson, attorney for the Daily, said such a decision typically takes 30 to 60 days.

Josh Linehan covers legal affairs and welcomes comments at [email protected]