North Dakota should require proper findings by judges before sealing court records

Court records should not be sealed unless a judge makes specific findings of fact, as required by the U.S. Supreme Court and the Supreme Court of North Dakota, The Reporters Committee for Freedom of the Press argued today.

In a friend-of-the-court brief to the North Dakota Supreme Court, the Reporters Committee urged the court to issue a directive requiring lower courts in the state to follow specific procedures set forth both in case law and in the court’s own rules before sealing records. The closure issue arose in a lawsuit brought by the National Collegiate Athletics Association against the University of North Dakota alleging the school’s “Sioux” logo is racially insensitive and demanding it stop using the name and Indian image in association with the school’s athletic teams.

Trial court judge Lawrence Jahnke closed off access to documents filed in connection with the court case to encourage a settlement between the parties, which was reached Oct. 26. However, the sealing order was not accompanied by the required findings of fact, set forth under North Dakota court rules as well as case law.

“Despite the settlement, the court has yet to reopen the court files,” said Reporters Committee Executive Director Lucy A. Dalglish, a 1980 graduate of the University of North Dakota. “While the judge clearly was annoyed by media attention to the case, that does not justify violating the law to close public access to information about the lawsuit and its settlement. ”

The settlement with the NCAA apparently requires the university to stop using the Sioux image and name in association with its athletic teams if it does not get approval from the state’s Sioux tribes within three years.

The Reporters Committee asked the North Dakota Supreme Court to issue a ruling requiring all courts in the state to follow the law when determining whether to seal court records. It pointed out the public interest in access to court records, as well as the strong case law supporting such access.

The brief is available on the Reporters Committee Web site at www.rcfp.org/news/documents/20071120-amicusbrie.html