*1 274 whether ambiguity about
any conceivable COMPANY, TRIBUNE STAR to “power” to limit the intended parties Respondent, assign, it to “right” than rather assign way to identify a clearer to is difficult deny party intent Daily, to
communicate et The Minnesota say so.3 assign expressly than to power al., Respondents, may Berkey exception that With Publications, Northwest may assign Lennon Lennon assign to Inc., Respondent, agreement Berkey, management obligations rights “the provides v. assignable.” shall not be Berkey/Lennon MINNESOTA OF UNIVERSITY added.) anti- hold that the We (Emphasis REGENTS, et BOARD OF clause is valid and enforce- assignment al., Appellants. agreement, management able term deny Len- parties intended A03-124, Nos. A03-155. rights under assign non his agreement anyone but Supreme Court of Minnesota. Therefore, purported Berkey. Lennon’s right compensation to of his assignment 15, July 2004. Lexington-Silverwood is void.
Reversed. (Colo.1994) anti-assignment (upholding provi- approach, Other courts have taken this given specifi- provisions to contract assignment effect preventing any sion as effective cally assignment right to prohibit the of ones provision a contractual “[w]hen because See, money due a contract. receive under unambiguous, courts should clear and neither e.g., Liberty Assurance Co. Boston Life by a it nor its effect strained rewrite limit 630, Inc., Capital, F.Supp.2d Stone 93 Street construction.”); CGU Insurance Co. v. Life (D.Md.2000) anti-assignment (upholding 638 Co., 516, Ga.App. Singer 250 Asset Finance agreement provision in structured settlement 8, (2001) (upholding 553 S.E.2d 15 anti-as- spite provision did not of fact that the though signment provision even structured “invalid.”); words contain the '‘void” or agreement assign- make failed to settlement Co., Grieve Ins. 58 v. General American Life ineffective); expressly ments void or otherwise 319, (same); (D.Vt.1999) F.Supp.2d Callahan, 256 Wentworth S.S.C. v. Wis.2d J.G. Iris., Colony Johnson v. First Life (2002) (refusing (C.D.Cal.1998) F.Supp.2d 1229-30 “magic” Centers, require in order enforce a (same); words Chiropractic P.C. v. Fairish clause). Co., nonassignability Progressive Ins. Cas. 874 P.2d
John Borger, Jorstad, P. Eric E. Patri- R. Stembridge, Faegre LLP, cia & Benson MN, Minneapolis, for Star- Tribune Com- pany: Respondent. Anfinson, MN,
Mark R. Minneapolis, for Daily: Respondent/The the Minnesota Rochester PosL-Bulletin: Respon- Joint Media Committee: dent/Minnesota Respondent. Hannah, Paul,
Paul MN, R. St for Publications, Northwest Inc.: Respondent. Gildea, Mark Rotenberg, B. Lorie S. Greene, Baker, Clifford M. John M. Green PLLP, MN, Espel, Minneapolis, for Uni- versity of Minnesota Board of Regents: K: Appellant/Reed, Maureen Appel- lant/Bergland, Appellant/Baraga, Robert: Anthony Appellant/Bell, R.: Peter: Appel- lant/Berman, Appellant/Bohnsack, Frank: Dallas: Appellant/Hogan, Appel- William: lant/Keffeler, Appellant/McNamara, Jean: Appellant/Metzen, Richard: Appel- David: lant/Neel, Bryan Appellant/Ransom, H.: Appellant. Lakeesha: Harbison, Byron, Kent. & G. Fredrikson PA, MN, Doe, Minneapolis, In- for John: tervenor. not be able make Regents would
OPINION duty fulfill their informed decision or ANDERSON, A. Justice. RUSSELL can- qualified most candidate or select the determine whether we must this case without confidential president for didates Data Practices Minnesota Government deliberations. interviews confidential (2002), §§ Act, 13.01-90 Minn.Stat. Regents’ resolution modified Law, Minn. the Minnesota inter- process to allow confidential search (2002), §§ 13D.01-.07 Stat. and confi- with selected candidates views Board of meeting pub- before dential deliberations (Regents) process in its of se- select the finalist licly discuss and President, if lecting a new president. for finalists to be considered so, violates the application such whether provided resolution autonomy Regents by granted the finalist or interview district court Minnesota Constitution. The selection, suspended but finalists before Regents’ presidential ruled Regents’ By-Laws the section *5 subject laws. The process was to those required Regents the to ad- would have agreed. appeals We affirm. court Open Meeting during to Law the here the presidential process.1 search 2002, announced that he Mark Yudof resign president as the Universi- would Following of the search modification 31, ty July 2002. of Minnesota effective Regents privately the interviewed process, Regents a Presidential The established the by the recommended candidates (PSAC) Advisory to 2002, Search Committee 6, Re- the PSAC. On November “recruit, recommend candi- screen and announced that finalist finalists gents to succeed Yudof. From those can- dates” president the be position for would PSAC, by the didates recommended the morning, and the next following named the who Regents would select finalists would morning, Regents the that Rob- announced by and considered publicly Bruininks, be interviewed the interim ert the Regents, required by the only Re- president, was the finalist. The Regents and Meeting Law the Board of president Bruininks as on gents elected Bylaws. November early the On November various members November PSAC print (collectively completed its work and recommended can- of media referred media”) “print for At commenced an didates consideration. herein as 4, 2002, in public meeting Hennepin County District November action Court. by print alleged The media that the modified process modified the search process Open Meeting violated adopting resolution which indicated search Act, by some of Law the Data Practices and the candidates recommended and partici- sought compel an willing the PSAC would not be order to pate public they public until data of interviews had disclose names by Regents. meet Re- interviewed opportunity privately with the candidates resolution, gents. According complaint sought also print to their the The media’s statute”), is 1. The resolution stated: Law as set forth in Minnesota suspended hereby applicable insofar as it is BE IT FURTHER RESOLVED that Regents Bylaw, presidential first forth sentence Board of search set VI, (“The adopts § Art. B Board of herein. policy as its the Minnesota enjoin from further violations A. Data Practices Act. Open Meeting Law. The Data Practices mandates which state local government records parties brought cross-motions must be public. accessible to the See court, Regents seeking
district to dis- (2002). §§ Minn.Stat. 13.01-.90 act complaint they on grounds miss the provides that applicants the names of required comply were not with either employment by a agency state are classi Open Meeting Law or Prac- * * * “private fied as data except when tices Act their pro- * * * to considered posi for a cess, print seeking and the media partial finalists public tion in employment.” Minn.Stat. summary judgment requiring disclosure of 13.43, added). § subd. (emphasis “Final public names data of the candi- ist” is defined as “an individual who is dates interviewed. The district court selected to by be interviewed appoint granted print par- media’s motion for ing authority prior to selection.” Id. tial summary ruling that judgment, Thus, the candidates by interviewed required were comply Regents were finalists under terms of Data Practices Act, the Data Practices and their names Act. district court ordered the disclo- and certain other public information are if sure of the data names and is applicable Regents. the act candidates interviewed The court of appeals granted applicable the Re- The act is to “[a]ll state gents’ petition for discretionary *6 agencies, political review and subdivisions and state a stay § systems.” 13.01, district court’s disclosure wide Minn.Stat. subd. order, followed, in the opinion state, and that “State is as agency” defined “the Minnesota, appeals Open court of that held Meet- any of fice, officer, ing division, applied department, bureau, Law Data Practices Act presidential board, commission, the Regents’ process authority, district or 13.02, and affirmed the agency district court’s order the state.” Minn.Stat. added). granting partial summary judgment (emphasis subd. 17 re- As the Uni quiring public disclosure of the versity expressly names Minnesota is included data by of the candidates in agency,” interviewed the act’s definition of “state Regents. granted stayed We review and of Minnesota falls within the the district pend- scope court’s disclosure order of the Data Act. Practices affirm ing our decision. We now and lift argue nevertheless stay. specificity, that without more the Data applicable Practices Act should not be
I. presidential They its search data. contend first applicable task is to that the act is determine not the search Our correctly whether the courts legislature below decided data because the did not specif Open ically the Data Practices Act and the university reference Law search data only as and because Universi statutory interpretation. ty, Regents, matter of not in the Statu is named tory legal is a interpretation agency. issue which definition state We find these de v. R arguments unpersuasive. review novo. Vlahos & I be struc Inc., Bloomington, generally Constr. ture of the Data N.W.2d Practices (Minn.2004). possessed by data entities makes identified Act, Meeting Law does provides Practices data, act other unless
public (“All University or 13.03, expressly mention § subd. Minn.Stat. wise. ** * here, it provides As relevant un public shall be data government executive ses- meetings, including all statute, temporary or by less classified * n * sions, body “public of a governing law, as non or federal classification Minn. public. to the body” open must be re nonpublic, or with protected public 1(b)(6). 13D.01, § The statute subd. individuals, Stat. private or to data on spect “public body.” not define does confidential”). Thus, categories of specific in in act expressly addressed are data gov is the Board of general exceptions to create order University of Minneso erning body of the fact, availability. Minn. public rule of § 4. The question, ta. Univ. Charter with re § accomplishes Stat. 13.43 then, “public is a is whether the in That section spect personnel data. body” Meet within terms appli governing data provisions cludes construction, statutory Law. words ing employment and government for cants meaning. given their common are employment, for “finalists” makes data on 645.08(1) (2002). § In common Minn.Stat. is, have been selected applicants who understanding, body” possibly “public 13.43, § interviews, public. Minn.Stat. category of expression for the the broadest approach legislature’s subd. 3. Given func perform entities that governmental Act, si drafting Practices in the Data Additionally, public tions for the benefit. University’s presi regard lence must remem addressing this issue we likely process more indi dential selection ber because subject intent to cates benefit, con public enacted for the than it. the act to exclude requirements of it in favor access. strue State County Hennepin, Arehabal v. Furthermore, the Re although (Minn.1993). 294, 297 out that gents pointing are correct precise Although we have used the refers to some statutes *7 “public body” term to describe the Univer- University specifi and in others refers convey we terms that the sity, have used cally Regents, to the examination State, meaning. In v. we Knapp same support of does not context those statutes University that the “is a state insti- stated the that reference to Regents’ conclusion established, carried tution controlled and the Data Practices Act “University” the 194,197, byon the state itself.” 125 Minn. agency definition of state means added). (1914) (emphasis 145 N.W. If are the anything, not covered. Chase, v. University In we University to the instead of the reference University the as “a state again described Regents in the Data Practices was in the as as collo- legal institution well the a likely convey more inclusive intended ordinary “in quial sense” as all the meaning encompass that would sense, plainly agency functional an University might possess units 262, 220 175 Minn. N.W. state.” data, including added). (1928) (emphasis Open Meeting B. Law. fact, do not contend that University public body. a Rath- Meeting generally Law is not Open requires er, they Meeting Law argue and local meetings state governments open public. apply must because the does expressly the Re- legislature § the Data did not name Minn.Stat. 13D.01. Unlike subject gents entity require- pressly an to the University as name the nevertheless school, rely apply ments of law. did suggest we language Winberg University from those statutes should not apply be- Minnesota, (Minn.1993), express 499 N.W.2d cause requirement, inclusion requirement express explained for but instead this inclusion. that their application Winberg, assessing while whether the could be based on the “political used by subdivision” broader terms Act, subject laws to the Veterans’ Preference those to define their applicability. Id. (2002), §§ Significantly, Minn.Stat. 197.455 and .46 we one of the laws discussed Law, explained: was the em- phasized the phrase “other great majority passes of laws it [I]n body” used therein is broader than the affecting University, legislature] [the “political subdivision” language at issue in or expressly includes excludes the Uni- Winberg. Id. versity regents subject its board of subject Thus, to or not if the law. “public body” Because the language legislature had intended the Veterans’ Open Meeting certainly Law is broad Preference Act to to the Universi- enough encompass University, ty Minnesota, it likely most would Régents are in essence there arguing University by specific have included the exception should be an scope to the stated 645.27, § Using reference. Minn.Stat. Open Meeting Law for the Universi- statutory pro- rule of construction ty. However, as the court of appeals by vides that “the state is not bound out, pointed con- therein,” passage a law unless named express exceptions tains meetings University, which is itself constitu- corrections, the commissioner of state state, tional arm of the would not be agencies exercising quasi-judicial functions bound the Veterans Preference Act involving disciplinary proceedings and “as explicitly unless named. expressly provided otherwise by statute.” 13D.01, § Minn.Stat. subd. Univer- Winberg, (emphasis N.W.2d at 801-02 omitted). sity among express is not included added; those footnote exceptions. Faced with a similar situation reasons, For several we decline to con- Chase, explained: “Certainly, while strue language Winberg as creat- exceptions being these were created and ing a generally-applicable rule that stated, have would also subject University is not to a law unless *8 expressly excepted, been if such been had First, expressly language included. the Minn, the intention.” 175 at 220 N.W. equivocal, only itself stating is that the at 953. legislature likely” “most would have in- University cluded by specific broadly the refer- the language Given inclusive Second, Law, ence. had Open Meeting Id. we intended the the our numerous quoted language bright-line opinions recognizing to create a the as a University rule, institution, analysis public legisla- no further have the would been failure the Instead, required. proceeded we University to set ture to include the other among forth why expressly-stated exceptions, prin- several additional reasons the and our ciple construing Veterans’ Preference Act not the Law Open Meeting would apply University. access, to to public construed the Id. to hold the favor Third, subject at in responding argu- University to the the is the terms of Meeting ment that other do not Law. Open statutes that ex- 282 tion, subject is Data Prac- contend that not the further Law. In Open Meeting and the Municipal Power tices Act Minnesota
Southern (Minn. contrast, the has been although Boyne, Agency v. status, the 1998), exempting special provides support imbued requirements consistently both the held that it remains a from we have Meeting Open entity, supra, express- Act and and Practices see have Data applica- Boyne, private the issue was a ly Law. In that it “is in no sense stated Minn, Minne- Southern bility Knapp, of those laws at corporation.” (SMMPA). Municipal Agency Power sota at 968.2 N.W. municipal corporation is a The SMMPA reasons, For these we conclude state, but political a subdivision and Act the Open the Data Practices both enabling legislation for SMMPA applicable Law are to the Univer- Meeting agency may all exercise provides sity president. a search for new might be exercised powers “which corporation in person private natural or a II. af- property and connection with similar Because we have determined (cit- Boyne, 578 N.W.2d 363-364 fairs.” Meeting Act and Practices (2002)). 453.54, § subd. 21
ing Minn.Stat. Regents’ are search for a applicable corpo- Boyne, “private on this we relied President, must new next exempt the language ration” SMMPA Regents’ appli- address the claim that such of the Data Prac- requirements from the infringes pro- cation on the constitutional Law, Open Meeting Act reason- tices in its tections afforded is re- corporation ing private that a University. The Re- management of Boyne, comply with those laws. quired gents argue University’s “unique that the N.W.2d at 366. places constitutional status” it outside the reach Act and Regents argue that as the Data Practices They language exempted contend that because private corporation Law. SMMPA, special “perpetuates” constitu Constitution autonomy it from powers tional should insulate conferred Charter, including Regents’ express requirements the Data Practices Act authority president, any legisla- Law. But our reason select tion ing Boyne applicable attempts from here. control the is legisla policy judgments was that Boyne, our rationale selec- constitutionally agency impermissi- to act as a tion empowered ture entity, a specific type private corpora- ble.3 rely print exempted
2. Both the and the media introduced in 1985 that would have legislation support respec- personnel require- on failed of their data Regents argue positions. tive ments of Data Practices demonstrates legislative failure of the to enact 1959 bill intent that the act should *9 requirement imposed have a Regents. that would leap the We are to the loath take public meetings Regents on the after receiv- attributing legislative to specific intent the ing opinion Attorney a from legislature’s particular letter the General to enact failure bills stating infringe requirement that the would myriad because of the reasons and circum- Regents' autonomy, on the but- constitutional that can result in such inaction. stances argument Meeting tresses that the that, alternatively, Regents argue apply Law is intended to 3. not The fashion, print challenged inap- the laws as similar the media contend should construe legislature pass plicable presidential process that the to failure the to a bill search
283 Regents maintain, interpreta Issues of constitutional the requires the conclu- law which we sion that the questions legislature tion are review cannot impose the Brooks, 345, requirements 604 N.W.2d of the de novo. State Data Practices Act (Minn.2000). University and the presi- The and its Law on 348 the Regents enjoy dential search indisputably spe process Regents Board of where the status; is have found in University cial constitutional the their resolution that do so just typical agency. “substantially a state Regents’ As we interferes with the occasions, have recounted on exclusive constitutional responsibility several the govern University originally by University seriously was chartered the and det- legislature act of in the territorial 1851. rimental the best inter- See, e.g., Winberg, 499 at ests.” The act regents created board of for the Chase, we considered whether law University. purpose governing M4 required departments that all agencies
When Minnesota achieved statehood in approval seek the state commis- 1857, the constitution confirmed the estab sion of administration and finance before University provided lishment of the spending entering funds or ap- contracts immunities, rights, “[a]U franchis Minn, Chase, plied to University. 175 granted es endowments heretofore at 220 at N.W. 952. We first held hereby perpetuated conferred are unto the legislature intended the statute to Minn, University.” Knapp, said 125 at University, because the Uni- Const, 198, 145 at (citing N.W. Minn. versity agency was an of the state and was 4). VIII, Thus, § art. the Univer among express exceptions created sity origins giv Charter territorial 262-64, by legislature. at Id. en constitutional status within the state at explained N.W. 952-53. We government. power to manage University was con- stitutionally in the Regents vested assert imposi legislature right did not have the requirements tion of the of the Data Prac to impose way restrictions on the in which Open Meeting tices Act and Law on the Regents managed University. Id. impermissibly at N.W. 954. We held that infringes powers governance on con application statute University ferred was unconstitutional because it interfered “perpetuated” Charter and to the Univer Regents’ authority with the exclusive constitution, sity in particularly manage University. Id. at (now authority to elect a chancellor re at 954. N.W. President). ferred to as recognized contend that we their applied contends as autonomy by from control to the 2002 search for a Universi- Chase, President, principles ty and that the enunciat the Data Practices Act and Chase, applied ed therein must be here. Law violate the constitu- necessity confronting Regents, alleged avoid the shall vested in Board twelve infirmities. Because con- Legislature who shall be elected clude infirmity, there is no constitutional provided." provides, hereinafter Section 9 statutory altering there is no basis for our part: power, relevant "The shall have interpretation analysis on this basis. duty enact and it shall be their laws government University; to elect a pro- 4. Section Charter * * Chancellor *10 University government vides: "The of this 284 au- upholding in the constitutional developed in Even doctrine autonomy
tional
and, therefore,
intru-
tonomy
University against
no disclosure should
of
the
the
Chase
University
Chase,
focuses
in
we
required.
attempted
employed
be
sion
declares that
in Chase that
language
the
the
expansive
terms less
than
any of
cannot transfer
Legislature
“the
example,
For
adopt
would have us
here.
constitutionally con-
University’s]
[the
the
explained
through
that
constitution
any
regents
the
from
power
firmed
“a
people invested the
the
board, commission
whatso-
or officer
other
Legis-
power management
of
of
no
268,
at 955.
In
at
220 N.W.
ever.” Id.
may
That
is not
deprive
lature
them.
Chase,
the exact
declined to define
of
they
that
are the rulers
an inde-
saying
the
of the
boundary
province
“between
beyond
lawmaking
or
the
pendent province
Legisla-
the
lawmaking power of
general
266,
at
power
the
Id.
Legislature.”
of
managerial
special
ture
the
and
added).
(emphasis
at 954
em-
N.W.
We
at
regents.”
function of the
Id.
phasized a
legislative
distinction between
University
Similarly, the
N.W. at 955.
authority: “Generally, the
and executive
defining
constitution-
urges us to avoid
the
jurisdiction
the
of the
distinction between
boundary
and
al
between
regents
Legislature and that
is
University
asks
Regents.
us
legislative
power.”
and executive
between
Data Practices Act
declare
at
Id. at
220 N.W.
954. We acknowl-
Meeting
applied
Law cannot
delineate)
(but
boundary
edged
did
case
the search
a Uni-
because
general
law-
province
“between the
President is a core function of the
versity
making power
Legislature
of the
and that
managerial
special
function
cannot
that Chase mandates
agree
We
respect
University.”
Id.
regents
from
University
of the
the re-
insulation
added).
(emphasis
at
at
N.W.
Data
quirements
Practices Act and
Open Meetings Law in these circum-
apparent
despite
recogni-
It is
scope
intrusion on the
stances.
autonomy
of constitutional
regarding
tion
powers
strikingly
management
Chase,
university
management
issues
Chase,
here.
at
different
statute
effect of the constitutional perpetua-
centralized,
required
issue
executive
University
of the
not to
tion
Charter was
approval of all expenditures
branch
entity
create
coordinate
the state
University.
financial commitments
government,
leg-
or even coordinate
explained
right
so to control
“[t]he
We
Rather,
islature.
the intent was to protect
University finances is the
to dictate
management
the internal
policy
every
and direct
academic
institu-
legislative
As
interference.
we ex-
activity.”
tional
Id. at
N.W.
Chase,
plained in
purpose
empower-
contrast,
the reach of
management
ing the
with the
Practices
and the
limited.
is much narrower and more
Nei-
put
management
greatest
any aspect
ther statute controls
of sub-
beyond
state educational institution
decision-making
stantive
dangers
vacillating policy,
illinformed
gives
agency authority regard-
another
meddling
partisan
or careless
[sic]
ing
academic or
decisions.
possible in the
Rather,
ambition that would be
merely
statutes
determine
meetings
management by
Legisla-
case of
either
public
extent of
access to
executive,
at frequent
ture or
chosen
information of this
institution.
*11
for functions and because
statute
intervals and
was
“an intrusion into the in-
vastly
management
and activities
different
ternal control and
qualities
the Uni-
qualify
versity.”
for the man-
In
regard
explained
from those
Id.
we
of higher
of an institution
edu-
agement
“[t]he limited conditions imposed by
designer
cation.
the state
selection board act are
radically different from the direct attempt
274-75,
pur-
Id. at
at 957. This
N.W.
university
to control
expenditures
all
dealt
pose
put
university
was to
academic and
with in the Chase case.” Id.
issues
the hands
n
Regents. The Data Practices Act and
present
circumstances here
even
Open Meeting Law do not tread on those
imposition
less of
on the Regents’ pre-
types
issues. These statutes address
rogatives than those in Lord.
In of the relationship
broader concerns
case,
Designer
the State
Selection Board
—and
public
information
institu-
flow—between
designer
would select the
university
for a
people
they
tions and the
whom
serve. project
through
process
a
in which the
input,
could have
but no
Lord,
vote.
University
Id.
Minnesota v.
contrast,
application of the Data Prac-
again
considered the extent
which the
tices Act and
University’s
autonomy pro-
does not dic-
against
legislature.
tects
control
selected,
(Minn.1977).
tate who must be
criteria for
We the Uni stitutional extreme, versity’s unique Legisla- constitutional status and Chase: “At the one effective, authority power exclusive on ture has no to make in the law, University management, matters of but form mere direction of academic application upheld policy nonetheless of the De or administration. At the other ex- signer Selection In upholding right Board Act. it has the treme undoubted within imposed the condition appropriation appropriations to condition as it reason Minn, ease, in that we noted that the thrust of fit.” at sees N.W. at challenged promote law was “to did not This illustration mean general welfare” and that it was not aimed no vis á vis has specifically, applied University except ap- but to an condition agencies propriation. to all of the state. Id. at 802. it set forth the two Rather obviously impermis- important, Most we concluded that “extremes” —the most *12 286 world, is, the to extent aca- the outside interfering with law legislation,
sible institution, which is fund- obviously public per- most which and the policy, demic dollars, condition, must substantially by within tax public ed legislation, missible reason, appropriation. process to an accessi- part attached make the final of that permissible legisla- room public. That there is to the ble in- is examples those two in tion between that, as the description of them to the Regents argue in our
herent
contrary,
impact of the Data Practices
extremes.
Open Meeting Law on its search
Act and
Lord,
universi-
noted
“[i]f
significant
was a
intrusion on their
process
all funds for
con-
providing
ty-were
as stated in the November
powers,
building from its own reve-
of a
struction
stated,
inter
resolution.
resolution
nues,
subject
it would
be
terms
alia,
whom the Board
that “candidates
act.”
803. This
of the
seriously
have indicated
wishes
consider
in the
of a
made sense
context
proviso
in
in
they
public
will not participate
by
apply
terms did not
statute that
its
they
opportuni
have had an
terviews until
($250,-
a threshold dollar amount
unless
ty
meet with the Board
000)
Significantly, we mere-
reached.
has
privately”; that “the Board
provid-
that if the
were
ly said
Process in its
determined that the Search
funds,
subject
ing
it would
all
purpose
form has
current
obstructed
act,
subject to
not that it could not be
search,
is to
the Board
enable
the act.
to recruit
hire the best
Further,
previously noted
we have
University”;
President
for the
possible
other,
that are
generally-applicable laws
in the
that “the Board finds that
absence
attached
appropriations
not conditions
of confidential interviews with candidates
University.
For exam
by the
and without
recommended
PSAC
ple, Winberg
Minneso
deliberations about those can
confidential
ta,
at least
such laws
we discussed
three
didates,
an
the Board cannot make
in
University:
applicable to the
which were
President”;
to hire
new
formed decision
Employees
Labor Relations
Public
has deter
and that “the Board
(2002);
Act,
ch.
179A
Minn.Stat.
mined that
in order to retain the most
Act,
Rights
Human
Minn.Stat.
person
as
qualified
to serve
(2002);
ch.
President,
oppor
have an
the Board must
(Minn.1993).
Law. 499 N.W.2d
tunity
confidentially
leading
interview
Practices Act
Application
confidentially
presidential candidates and
Law to the
presidential
qualifications of those
deliberate about the
articulat-
search satisfies
standards we
candidates.”
Both
are
ed in Lord.
statutes
intended
difficulty posed by the resolution
by making
promote
general
welfare
language
only
is that
factual state-
information
government
accessible to
people.
applicable
unspecified
are
not ment is that
number
Both statutes
just
University,
by
all
the search
but
state
candidates recommended
participate
agencies,
government
well as local
enti-
committee would not
meeting
first
with the
Finally,
ties.
neither statute is an intru-
interviews without
Regents privately. The remainder
sion into the internal
They
facts—
University.
excerpts
affect the
are
conclusions—not
only
drawn
its interface
absence more factual founda
commentators who have acknowledged
tion,
face
inade
pros
the resolution
that there are
and cons on both sides
*13
quate
support a
openness/privacy
to
conclusion that
of the
presiden
issue in
searches,
application
these statutes is a sufficient
tial
and concluded that determi
intrusion which violates the
proper
nation of the
approach
policy
is a
autonomy. That some candidates for a
that
pros
issue
balances the
and cons and
high
post
profile public
may choose not to
not
is
an issue of such dimension that
publicly
make themselves
not opting
openness
available
is
for
with
interferes
enough.
presidential
The fact
is that
effective management
university.
of the
See,
in a majority
searches
sub
e.g.,
Sherman,
states are
Michael J.
How
Is
Free
ject to public access statutes at least as Free Enough?
Public
Presi
Searches,
broad as the Data
Practices
dential
Autonomy,
Estes,
Acts,
Law. See Nick
State Uni
Open Meeting
and State
&J.C.
versity
(2000);
Presidential Searches: Law and U.L.
698-99
see also Harlan
Practice,
(2000).
Cleveland,
&J.C. U.L.
The Costs and Benefits of
Because
the variations and
Openness:
differences
Sunshine Laws and Higher
(1985) (“Most
in
legal
status
the affected universi Education 27
states with
n *
*
ties,
provides
legal support
this
little
for protected
processes
search
find it
position
one
preva
another. But the
in
still
their best interest
to release the
processes
lence of these “open”
does rebut
names of candidates on
final
short list
any
generalization
presidential
that
public
and allow the
participate
to
cannot
be
effectively
performed
searches
interact with candidates
part
as
of the
requirements.5
under
agree
such
We
with
steps
process.”).6
final
of the search
Significantly,
5.
in three
in
privately
states
which an
could
meet
first
with the
exception
public
to a
access statute was en-
does
specifically
record
not reflect
how
expressly
university presidential
many
acted
candidates were recommended or how
interviews,
opinion requiring
many
searches after a court
public
dis-
beyond
eschewed
but
closure,
statutory
numbers,
exceptions
possibly fleshing
created still
out these
it is diffi-
required disclosure of finalist
for a
names
cult to see what true facts would be elicited
specified period before the
regarding
final selection is
on remand. The characterizations
Estes,
made. See
26 J.C. & U.L. at
impact
ability
494-95.
on the
to
required
That is all that
under
carry
fiduciary
is
our
out their
seem at
duties
best
Practices Act.
questions
impor-
of fact and
Most
mixed
law.
tant,
any
the assessment of whether
effect was
Hanson,
dissent,
significant
“so
that would
a
have resulted in
Justice
in
would remand to
on the
fact-finding
material intrusion
internal control and
district court for
to determine
management
University"
of the
to
application
seems
us
“would
legal
regarding
applicabili-
actually
determination
Practices Act
have frustrat-
Law/Data
ty
of one of
Lord factors. Even if we were
ability
carry
ed the
to
out
and,
so,
precedent
law
fiduciary
administrative
duties
if
was
frustration
suggests,
Justice
significant
Hanson
where
so
that it would have resulted in a
legal
reviewing
conclusions are
issue "the
on the
material intrusion
internal control and
by
court is not bound
the decision of
management
University."
Remand
agency
agency exper-
need
defer
not
helpful
appropriate.
seems
It
neither
nor
is
Line,
tise.” No Power
Inc. v. Minn. Envtl.
important
separate truly
aspects
factual
Council,
(Minn.
Quality
Regents'
262 N.W.2d
resolution
its conclusions.
1977).
any
Because
appear
dispute
There does not
the critical issue
this case
be
any
presidential
some
is whether
frustration of the
candidates recommended
sufficiently
process
committee and
inter-
selection
serious
whom
were
considering expressed
constitutionally significant,
legal,
ested in
a desire
is
not
issue,
participate
they
interviews
a factual
unless
does
warrant remand.
protected.
to be
functions intended
urge us
follow
lead
Feder
consonant with ours:
view more
Supreme Court
dissent’s
Michigan
Publications,
Trus
Inc.
Board
ated
majority
agree
I
with the
While
tees,
of that court held
majority
in which
may
not interfere
Legislature
“the
Michigan Open
application
and control of’ univer-
Meetings Act
sities, I
conclusion that
disagree with its
University vio
Michigan State
infringes de-
[Open Meetings Act]
autonomy of that
constitutional
lated the
super-
fendant’s
*14
regents.
Mich.
university’s
460
board
[Open Meeting
The
vise the institution.
(1999).
75,
491
594 N.W.2d
pecu-
any
at
activities
aimed
Act]
not
grant of au
the constitutional
assert that
university
not at-
to the
and does
liar
governing boards of the
thority to the
change or
its education-
tempt to
disturb
is similar
that
Michigan universities
Although
requires
al activities.
our constitution and therefore the
found in
university
process
selecting
the
opinion provides
Federated Publications
not
president
public,
be done
it does
authority
that our
Meet
persuasive
the
what the criteria should
tell
board
constitutionally
applied
ing Law cannot
It
not dictate the
be for selection.
does
Al
presidential
process.
search
to the
process
person to
or the
be selected.
with
though
prior
cases
have cited
(footnote
J.,
(Kelly,
dissenting)
Id.
504
at
interpreting
cases
the
approval Michigan
omitted).
autonomy from
scope of their universities’
not find the
legislative regulation,7
do
addition,
majority
in Federated
opinion persuasive.
Federated Publications
support for its conclu-
Publications found
First,
Michigan
by
the rationale used
provision
in a
Consti-
Michigan
sion
contradictory.
us
On the
court strikes
requires
“jf/ormal
tution that
sessions
hand,
majority explains
that the
one
governing
boards of the universities
autonomy of
constitutional
the universities
public.”
open
shall be
594 N.W.2d
proper spheres, stating:
to their
is limited
Const,
(quoting
at 498
Mich.
art.
“Legislative regulation
clearly
in
4)
added).
VIII, §
(emphasis
In conclud-
university’s
or
fringes on the
educational
not
ing that
the search was
a “formal
must, therefore,
autonomy
yield
financial
session,”
majority
reasoned that
university’s
power.”
to the
constitutional
provision and the comments of its author
added).
contrast,
(emphasis
Id. at 497
at
the constitutional convention demon-
concludes,
majority then
little ex
with
meetings
open
strate that the
at
issue
planation,
Act “dic
province
is the
the universities
university
tates
manner in which the
boards, except
as limited
article
sec-
day-to-day
on a
operates
basis”
Michigan
tion 4 of the
Constitution. We
selecting
application
provision
have no similar constitutional
“infringes on
consti
president
defendant’s
history in Minnesota.
supervise
tutional
the institu
also fault
tion.” Id. at 498. We find it difficult to
ignoring
court of
for
1959
disagree
appeals
letter
concepts
reconcile these
with
opinion
Attorney
regarding
the effect of an
General
conclusion
meeting
Attorney
law on
open
General advised
268-69,
See,
Lord,
(same).
e.g.,
(citing
Finally, recognized we are that if constitution concerned adopted, Regents’ arguments University manage favor the need for the University's 8. separation powers argu- University separate The The is not a branch of Second, government. ment some same raises of these concerns and Act Practices rejected must be for at least two reasons. to the executive First, specifically separation powers the constitution describes branch. If does not legislative, prevent application the three executive of those laws to executive branches — judicial subject separation agencies, why are branch we see no reason —that Const, Ill, powers principle. prevent application § Minn. art. would GILBERT, (dissenting). Justice has principle constitutional This itself. litigation, flowing important given birth majority’s analysis I inso- with agree public’s out of far it concludes that the Open as principle is to be to how concern gener- the Data Practices are Law and under- It with sensitive vitality. is given believe, however, I ally good policy. that exists between standing of the tension prohibits the the Minnesota Constitution manage the Universi- right to Regents’ laws to the applying these promoting the general laws ty and the Regents’ president selection of a Board of regarding the right information public’s peo- for Minnesota. institution state educational greatest have vested the Board of ple of Minnesota reasoning of an earlier deci- adopt authority manage Supreme Court: Michigan sion of president. to select a of the operation confines “Within indelibly infringes upon majority’s decision funds of the Uni- and the allocation auton- the Board of Regents] su- Board versity, [the reason, omy. respectfully For this I dis- confines, these how- Without preme. sent. ever, no reason allow the there is independence to to use their and the Constitution clearly established thwart significant, contain Charter Michigan.” policy people the, University special provisions Em Mich. Mich. Univ. *16 in that were established Comm’n, 96, 389 Mich. ployment Relations Together, laws of 1851. these territorial (1973) 218, (quoting 224 Bra 204 N.W.2d designed to ensure that provisions were 5 Bd. Univ. Mich. num v. of of granted was Board 134, 860, Mich.App. 145 N.W.2d 862 unique, independent constitutional status (1966)). government in our that reserves in state n hold, therefore, application We power the fundamental to man- Board Act and Data Practices the. age University. Specifically, Uni- Meeting Law to provides: govern- “The versity Charter artic- the standards we processes satisfies in vested ment of this shall be requiring and that the re- ulated Lord Regents, shall Board of twelve who finalists for the position lease of data on Legislature elected as hereinafter protects public’s President 1851, 3, § provided.” Minn. ch. 4. Laws such, As right to be informed. release of The further that it states “shall Charter un- data on finalists does violate the “duty” be” of the “to Board derlying protections insulat- government enact laws for the of the Uni- control, ing legislative Chancellor,” i.e., “to elect a versity” and it impede Regents’ ability nor does § president University. of the Id. 9. The In “manage” University. light of our Constitution, original Minnesota enacted in today, stay decision we lift the of the dis- 1857, provides rights, immu- “[a]ll 13, trict court’s March 2003 disclosure or- nities, franchises endowments hereto- upon entry judgment pursuant der granted hereby per- fore or conferred are Minn. R. P. 136.02. Civ.App. petuated university.” unto the said Minn. Affirmed. Const, 1857, VIII, § art. 3. constitution,
PAGE, J., our interpreting in the issues part took no resolved, reasonably consideration of this case. “should be wherever or decision
291
so, in a way
scope
to do
to forward the
possible
and which are not an intrusion
purpose
provision
with which the
evident
into the internal control
management
Carlson,
adopted.” Diemer
was
550
university by
of the
of Regents.”
Board
(Minn.1996)
(quoting
part
Id. at 802. As
of our reasoning, we
254, 258-59,
Bjornson,
Reed v.
191 Minn.
recognized
the University
had a
(1934)).
have long
N.W.
We
choice
accept
reject
legislative
recognized
purpose
that the evident
funding,
noting
the university
“[i]f
of Regents’ special
Board
constitutional were
all
providing
funds for the construc
autonomy
status is to have
over
inter
tion of a building from
revenues,
its own
it
management
University.
nal
subject
would not be
to the terms of the
Chase,
Minnesota v.
act.” Id. at 803. We
recognized
also
(1928),
Minn.
Even
Lord,
Open
constitution-
approved
Court because
its similar
statute
Practices Act
and the Data
Meeting
manage-
Law
al
the autonomous
structure
autonomy grant-
Chase,
the constitutional
impede
university.
ment of
state
Minn,
they
because
955; Lord,
to the Board
ed
at
at
220 N.W.
through appro-
attached
not conditions
are
257 N.W.2d
801. In Federated Publi-
generally
are
These statutes
priations.
cations,
Supreme
Court
Michigan
allow the Uni-
laws that do not
applicable
“[l]egislative regulation
that
that
held
accept
versity the choice of whether
university’s
clearly infringes
on
edu-
along
appropriations.
with
conditions
autonomy
financial
must
cational
* * *
Lord,
held that
could
university’s
yield constitu-
on the use of
conditions
place reasonable
at 497. The
power.”
tional
594 N.W.2d
that
appropriated
funds
meeting
that
open
court held
law
the internal control and
impede
do
that
the manner in
a law
“dictates
University.
management
day-
on a
University operates
which the
is consis-
principle
at 802. This
therefore,
basis,”
was,
to-day
uncon-
powers
general separation
tent with
Id. at
stitutional.
system govern-
of our
structure
federal
Dole,
principles
I would
similar
South Dakota v.
483 U.S.
ment. See
203, 207,
L.Ed.2d 171
us
that
107 S.Ct.
case before
and hold
(1987) (holding
Congress may
condi- Meeting
Privacy
Law and
Data
clear-
if
receipt of federal funds
tion states’
ly infringe
Board of
au-
unambiguously, enabling
so
states to
does
tonomy
over internal
knowingly).
their choice
ma-
exercise
Importantly,
of Minnesota.
jority blatantly ignores this fundamental
taken
the actions
the Board
holds, for
principle
they carefully
considered
suggest
legisla-
in our history,
first time
behind
policies
may mandate
ture
the actions of
Board
and,
Privacy Act
in accordance
directly
Regents in a
af-
decision
power,
to follow
their
decided not
those
University.
management of the
fects the
policies. Following
passage
statutes,
adopting
looked into
Michigan
has re-
Supreme
Court
management policy
recognized
issue,
cently
nearly
decided
identical
the Data
Act.1
goals
Privacy
Ultimate-
open
holding
application
of an
*18
however,
ly,
determined
that
meeting
university’s presi-
law to a state
policy was
hindering
prop-
them
dential search committee was unconstitu-
erly managing
University. After an
infringed
tional because it
on the univer-
study,
of
extensive
the Board
sity’s
supervise
to
power
Publications,
concluded that it
in the interest of
Inc.
was
itself. Federated
Trustees,
University
carry
portion
to
out a
Board
460 Mich.
(1999).
president
search for
in confidential man-
Chase and
Lord,
resolution,
According
we cited
a com-
approval
with
decisions ner.2
13.43,
(2002),
important
§
1. Minnesota
subd. 3
2.
It is
to
that the Board deter-
Statutes
note
publicize
the list of
provides
mined
it would
candi-
applicants
are
names of
they
only
dates once
became finalists.
data,
eligible
"private
except when certified
period
present
of time in the
matter
contested
appointment
applicants
for
or
are con-
when
period
the Board would
is the small
where
sidered finalists.”
initially fielding candidates.
had
pletely
quasi-legislative
confidential
This
action
purpose
the search”
of Regents
“obstructed
Board
well within
is
the bounds
ability
of the
of of
“rights
and “frustrated
Board
the constitutional
immuni-
[and]
**
*
carry
fiduciary
out
respon-
perpetuated
its
ties
unto
universi-
[the]
people of
ty” by
sibilities to the
Minnesota.”3
our constitution.
previously
As
mentioned, constitutional issues should be
Regardless
legislature,
what the
resolved “to forward the
purpose
evident
we,
think of the Board of
conclu-
with
provision
adopted.”
which the
sion, its
squarely
decision falls
within the Diemer,
(citation
and thus it creates argue media print
OML/DPA. legal importance has no be-
the resolution law,
cause, application of as a matter of Minnesota, Respondent, STATE of impermissibly would OML/DPA intrude on the internal control v. because would not ulti- management GARCIA, Appellant. Francisco mately deprive president. select No. A03-483. Between these two extremes is third Court of Minnesota. Supreme alternative, represents that the resolution July 2004. an administrative determination “has frustrat- application OML/DPA ability of the Board of
ed fiduciary
carry responsibilities out its Minnesota,” people such is entitled to some defer-
determination
ence, to make it presumptively sufficient and, I this alternative be- prefer
true.1 impermissible I define intru-
cause would material frustration of the
sion to include func-
Regents’ control
tions, I would conclude that this determi- Herbst, See, Line, (Minn. e.g., ing Co. No Power Inc. v. Minn. Envtl. Council, 1977) (Minn. (stating Quality that "decisions of administra- 262 N.W.2d 1977) agencies enjoy (reiterating presumption presumption of correct- "a of ad- tive *20 ness, regularity respect to deference should be shown ministrative exists” with determinations); agencies’ expertise.”) Min- courts Reserve administrative