The judge who presided over UND's legal defense of its Fighting Sioux nickname has defended his decision to temporarily seal court filings from public view -- and, in doing so, revealed that litigation cost much more than earlier stated.
In his newly filed response, Judge Lawrence Jahnke said that the total cost of the nickname trial reached $5 million, not the $2 million which he cited in a previous opinion and later was used in media accounts.
Close to $900,000 of that cost was on UND's side, according to the only available figures.
Jahnke sealed future filings in the nickname case Sept. 14, arguing that media attention to the lawsuit could damage settlement negotiations between the two parties. Jahnke later denied a Forum Communications Co. motion asking him to unseal the files, and the files remained sealed until the case was settled in late September.
Forum Communications appealed the issue to North Dakota's Supreme Court, arguing that the filing went beyond established North Dakota law and that aiding settlement negotiations was not a sufficient reason to seal the files.
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The Reporters Committee for Freedom of the Press, a journalists advocacy group, filed a friend-of-the-court brief supporting the FCC motion.
Forum Communications owns the Grand Forks Herald and The Forum of Fargo-Moorhead, as well as Grand Forks' WDAZ-TV and Fargo's WDAY-TV and radio stations.
In his response, Jahnke states that the nickname case went beyond the scope of ordinary North Dakota court cases.
"The trial court is aware of (the North Dakota Supreme Court's earlier opinion that a file) closure may not be imposed simply to aid in settlement negotiations," Jahnke wrote. "But there can be no disagreement that UND v. NCAA was an extraordinary case, and extraordinary cases to, at times, require extraordinary judicial involvement in the general public interest even if such involvement trods temporarily on the feet of a newspaper."
Jahnke wrote that "earlier media reporting had scuttled a settlement in August 2007 on the brink of its announcement."
That likely refers to the work of Sam Dupris, an enrolled member of the Cheyenne River Sioux Tribe and a retired Federal Aviation Administration official, who advocated for the nickname on the state's Sioux reservations as a paid emissary for the Ralph Engelstad Arena at UND.
Dupris' involvement in the nickname debate was first reported in the Herald Aug. 19.
North Dakota Newspaper Association attorney Jack McDonald criticized Jahnke's arguments, saying he did not provide legal precedent for his position that supporting a settlement should supercede public access and artificially separated the interests of the public from the interests of the press.
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"The other problem is that he claims newspaper articles prohibited or scuttled an earlier settlement, but he doesn't say how those could relate to documents filed with the court," McDonald said.
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Marks reports on higher education. Reach him at (701) 780-1105; (800) 477-6572, ext. 105; or jmarks@gfherald.com .
