A North Dakota judge wanted to move a settlement along between the feuding NCAA and the University of North Dakota in a lawsuit over the school’s controversial use of its "Fighting Sioux" logo — the NCAA had alleged the logo to be "racially insensitive" and ordered the university to halt its use of the image. So Judge Lawrence Jahnke ordered records in the case to be sealed, reasoning that if the "divisive" media reports based on the filings ceased, the parties would be free to settle in peace.
And they did.
Yet, in sealing those records, Jahnke failed to follow the law — both constitutional and common law presume court records to be open unless specific findings are made to justify their closure — as well as the North Dakota Supreme Court’s own rules. To seal court records, Administrative Rule 41 requires a court to make specific findings, articulate the interest in closure and keep the closure no broader than necessary. Janke’s sealing order dismissively cited "divisive" media reports as his rationale for closing access to further filings in the case without meeting or even addressing Rule 41’s requirements.
Forum Communications Co., which owns the Grand Forks Herald, pointed that out to the North Dakota Supreme Court and asked it to make a statement saying that lower courts — including Jahnke’s — must follow Rule 41 and engage in those protective measures to safeguard the public’s interest in access to judicial records. (The Reporters Committee filed a brief in support of that proposition, which the court accepted.) But the court refused to issue such a mandate, denying the communications company’s petition in a one-page order without explanation.
Even though the case has settled, and the contents of the settlement have been released — UND has three years to obtain permission from the Sioux tribe to continue using the logo, or it must then cease and desist — Jahnke still won’t open those earlier court filings up.
So as to whether North Dakota Supreme Court justices care to make the state’s courts follow its own rules? Their lips — and our court records — are sealed.