Star Tribune Co. v. University of Minnesota Board of Regents

GILBERT, Justice

(dissenting).

I agree with the majority’s analysis insofar as it concludes that the Open Meeting Law and the Data Practices Act are generally good policy. I believe, however, that the Minnesota Constitution prohibits the legislature from applying these laws to the Board of Regents’ selection of a president for the University of Minnesota. The people of Minnesota have vested the Board of Regents with the authority to manage the University and to select a president. The majority’s decision indelibly infringes upon the Board of Regents’ constitutional autonomy. For this reason, I respectfully dissent.

The Minnesota Constitution and the University Charter contain significant, special provisions for the, University of Minnesota that were established in the territorial laws of 1851. Together, these provisions were designed to ensure that the Board of Regents was granted a unique, independent constitutional status in our state government that reserves in the Board the fundamental power to manage the University. Specifically, the University Charter provides: “The government of this University shall be vested in a Board of twelve Regents, who shall be elected by the Legislature as hereinafter provided.” Minn. Laws 1851, ch. 3, § 4. The Charter further states that it “shall be” the “duty” of the Board of Regents “to enact laws for the government of the University” and “to elect a Chancellor,” i.e., president of the University. Id. § 9. The original Minnesota Constitution, enacted in 1857, provides that “[a]ll the rights, immunities, franchises and endowments heretofore granted or conferred are hereby perpetuated unto the said university.” Minn. Const, of 1857, art. VIII, § 3.

In interpreting our constitution, issues “should be resolved, wherever reasonably *291possible to do so, in a way to forward the evident purpose with which the provision was adopted.” Diemer v. Carlson, 550 N.W.2d 875, 882 (Minn.1996) (quoting Reed v. Bjornson, 191 Minn. 254, 258-59, 253 N.W. 102, 104 (1934)). We have long recognized that the evident purpose of the Board of Regents’ special constitutional status is to have autonomy over the internal management of the University. In University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951 (1928), our first and most comprehensive analysis of the Board of Regents’ autonomy, we held that a state law was unconstitutional insofar as it attempted to subject control of the University’s finances. We noted in Chase that it had taken 70 years for the first issue of power to be raised between the Board of Regents and the legislature, making safe the assumption that mutual respect makes it unnecessary for the judiciary to mark the precise line dividing their respective jurisdictions. Id. at 267, 220 N.W. at 954. We noted that the University’s status under our constitution is that of a “constitutional corporation,” which is the “highest form of juristic person known to the law.” Id. at 265, 220 N.W. at 954 (citations omitted). The Board of Regents’ power was “put beyond the power of the Legislature by paramount law, the right to amend or repeal which exists only in the people themselves.” Id. at 265, 220 N.W. at 954. We held that the constitution has vested the Board of Regents with “a power of management of which no Legislature may deprive them,” in order to “accomplish its purpose.” Id. at 266, 220 N.W. at 954.

We did recognize some limitation on the autonomy of the University and the Board of Regents in Regents of University of Minnesota v. Lord, 257 N.W.2d 796 (Minn.1977). In Lord, we cautiously permitted the legislature to attach “very minimal conditions on the use of funds appropriated by it to the University which are limited in scope and which are not an intrusion into the internal control and management of the university by its Board of Regents.” Id. at 802. As part of our reasoning, we recognized that the University had a choice to accept or reject the legislative funding, noting that “[i]f the university were providing all funds for the construction of a building from its own revenues, it would not be subject to the terms of the act.” Id. at 803. We also recognized in Lord that times had changed since we had decided Chase, but we emphasized that this change was merely recognition of the increasing amount of appropriations that came from the legislature to help fund the University, not a change in the constitutional autonomy of the University. Id. at 802, 220 N.W. 951.

The majority, relying heavily on Lord, concludes that the Data Practices Act and the Open Meeting Law “do not tread on” internal University management issues. The majority states: “neither statute is an intrusion into the internal management of the University. They affect the presidential search process only in its interface with the outside world * * I disagree. The Open Meeting Law and the Data Practices Act necessarily impede the Board of Regents’ internal control over management of the University. The statutes, as applied, mandate procedures by which the Board of Regents selects a president. The application of these statutes to the presidential search process interferes with and obstructs the power given to the Board of Regents to select a president, which may be the most fundamental internal management decision of the Board of Regents. In short, the scope of the intrusion of these statutes unquestionably alters, frustrates and impedes the internal control of the management of the University by the Board of Regents.

*292Even more fundamentally, unlike the statute we approved in Lord, the Open Meeting Law and the Data Practices Act impede the constitutional autonomy granted to the Board of Regents because they are not conditions attached through appropriations. These statutes are generally applicable laws that do not allow the University the choice of whether to accept conditions along with appropriations. In Lord, we held that the legislature could place reasonable conditions on the use of funds appropriated to the University that do not impede the internal control and management of the University. 257 N.W.2d at 802. This principle is consistent with the general separation of powers structure of our federal system of government. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (holding that Congress may condition states’ receipt of federal funds if it does so unambiguously, enabling states to exercise their choice knowingly). The majority blatantly ignores this fundamental constitutional principle and holds, for the first time in our history, that the legislature may mandate the actions of the Board of Regents in a decision that directly affects the management of the University.

The Michigan Supreme Court has recently decided a nearly identical issue, holding that the application of an open meeting law to a state university’s presidential search committee was unconstitutional because it infringed on the university’s constitutional power to supervise itself. Federated Publications, Inc. v. Board of Trustees, 460 Mich. 75, 594 N.W.2d 491, 499 (1999). In Chase and in Lord, we cited with approval decisions rendered by the Michigan Supreme Court because of its similar constitutional structure for the autonomous management of a state university. Chase, 175 Minn, at 269, 220 N.W. at 955; Lord, 257 N.W.2d at 801. In Federated Publications, the Michigan Supreme Court held that “[l]egislative regulation that clearly infringes on the university’s educational or financial autonomy must * * * yield to the university’s constitutional power.” 594 N.W.2d at 497. The court held that the open meeting law was a law that “dictates the manner in which the University operates on a day-to-day basis,” and was, therefore, unconstitutional. Id. at 498.

I would apply similar principles to the case before us and hold that the Open Meeting Law and Data Privacy Act clearly infringe on the Board of Regents’ autonomy over internal management of the University of Minnesota. Importantly, the actions taken by the Board of Regents suggest that they carefully considered the policies behind the Open Meeting Law and Data Privacy Act and, in accordance with their power, decided not to follow those policies. Following the passage of the statutes, the Regents looked into adopting a management policy that recognized the goals of the Data Privacy Act.1 Ultimately, however, the Regents determined that the policy was hindering them from properly managing the University. After an extensive study, the Board of Regents concluded that it was in the interest of the University to carry out a portion of the search for president in confidential manner.2 According to the resolution, a com*293pletely confidential search process had “obstructed the purpose of the search” and “frustrated the ability of the Board of Regents to carry out its fiduciary responsibilities to the people of Minnesota.”3

Regardless of what the legislature, or we, think of the Board of Regents’ conclusion, its decision falls squarely within the realm of its authority to select a president for the University and its autonomy over internal management of the University. That the Board of Regents may reach this conclusion is the “evident purpose” of the constitution and the principles we have recognized since Chase. The selection of the president of the University of Minnesota may be the most important management function that the Board of Regents performs. This search is undoubtedly a complex process. The Board determined that it could only “carry out its fiduciary responsibilities to the people of Minnesota” by conducting “confidential interviews” and “confidential deliberations” and concluded that adherence to the Open Meeting Law and Data Practices Act “is seriously detrimental to the University’s best interests.”

This quasi-legislative action by the Board of Regents is well within the bounds of the constitutional “rights [and] immunities * * * perpetuated unto [the] university” by our constitution. As previously mentioned, constitutional issues should be resolved “to forward the evident purpose with which the provision was adopted.” Diemer, 550 N.W.2d at 882 (citation omitted). The purpose of Minn. Const, art. XIII, § 3 is to provide the Board of Regents with “a power of management of which no Legislature may deprive them.” Chase, 175 Minn, at 266, 220 N.W. at 954. The majority ignores the evident purpose for which Minn. Const, art. XIII, § 3 was adopted and instead allows the legislature to directly impede the management process of the University. I would reverse.

. Minnesota Statutes § 13.43, subd. 3 (2002), provides that the names of applicants are "private data, except when certified eligible for appointment or when applicants are considered finalists.”

. It is important to note that the Board determined that it would publicize the list of candidates once they became finalists. The only contested period of time in the present matter is the small period where the Board would be initially fielding candidates.

. The "Resolution Relating to Presidential Search” reads in part as follows:

WHEREAS, candidates whom the Board seriously wishes to consider have indicated that they will not participate in public interviews until they have had an opportunity to meet with the Board of Regents privately;
WHEREAS, the Board of Regents has determined that the Search Process in its current form has obstructed the purpose of the search, which is to enable the Board of Regents to recruit and hire the best possible President for the University;
WHEREAS, the Board of Regents has determined that the Search Process in its current form has frustrated the ability of the Board of Regents to carry out its fiduciary responsibilities to the people of Minnesota. The Board finds that in the absence of confidential interviews with candidates recommended by the PSAC and without confidential deliberations about those candidates, the Board cannot make an informed decision to hire a new President;
WHEREAS, the Board of Regents has determined that in order to retain the most qualified person to serve as University President, the Board must have an opportunity to confidentially interview leading presidential candidates and confidentially deliberate about the qualifications of those candidates; and
WHEREAS, the Board of Regents has determined that the adherence to the Open Meeting Law and the Minnesota Government Data Practices Act in relation to the University presidential search substantially interferes with the Regents' exclusive constitutional responsibility to govern the University and is seriously detrimental to the University’s best interests.