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Judge rules for Notre Dame in ESPN suit

| Tuesday, April 21, 2015

ESPN_graphicSara Shoemake | The Observer

On Monday, St. Joseph Superior Court Judge Steven Hostetler issued a verdict in Notre Dame’s favor in a lawsuit filed by ESPN regarding access to campus police records. Hostetler ruled that Indiana’s current Access to Public Records Act (APRA) does not apply to private colleges and universities that appoint police officers, including the Notre Dame Security Police (NDSP).

ESPN and Paula Lavigne, an ESPN reporter, filed a lawsuit against the University on Jan. 15 after NDSP refused to grant Lavigne’s requests for incidence reports related to student-athletes on two separate instances.

ESPN argued NDSP is subject to Indiana’s APRA and should be required to produce the requested records because it exercises the police powers of arrest, according to a plaintiff brief filed March 9.

In his ruling, Hostetler wrote the Court recognizes Notre Dame and other private universities that appoint campus police officers as “state actors,” not public agencies.

“The powers given to officers appointed by Indiana’s private colleges and universities are significant,” Hostetler wrote. “However, it does not follow that Notre Dame is a public agency under APRA simply because NDSP is a ‘state actor’ for constitutional law purposes.”

Hostetler wrote he shares discomfort with Indiana Public Access Counselor (PAC) Luke Britt surrounding the notion of a private party exercising police powers without having to provide its records to the public, despite his decision not to apply APRA to NDSP.

Britt, an attorney appointed by the governor, issued two separate opinions stating that he considered NDSP to be a public agency and subject to APRA. Britt’s opinions differed from previous opinions issued by Indiana Public Access Counselors in 2003, 2009 and 2011.

In a defense brief filed Feb. 12, Damon Leichty, an attorney representing Notre Dame, argued Indiana Legislature did not intend for APRA to apply to campus police departments because it did not change the statute after these previous opinions were issued.

“If the Legislature thought that those three Public Access Counselors were wrong, and that private colleges and universities in Indiana were intended to be public agencies under APRA, the Legislature has had since 2003 to codify that intent,” Hostetler wrote. “It has not done so.”

Hostetler wrote that although Indiana Legislature may consider adapting APRA in the future, it cannot be interpreted to apply to private colleges and universities in its current state.

“This Court will not strain the language of the statute in order to do what the Legislature has not, even though there are indeed persuasive reasons why the statute should be amended to read the way ESPN desires,” Hostetler wrote.

Paul Browne, vice president for student affairs and communications, said the University supported the ruling.

“We are pleased that Judge Hostetler has agreed with the long-recognized status of the University’s records,” Browne said. “As always, our police department will continue to investigate and report in a manner consistent with the highest standards of law enforcement and in accord with state law.”

The South Bend Tribune reported Plaintiff Attorney James Dimos said ESPN is unsure of whether or not it is going to appeal Hostetler’s ruling.

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About Katie Galioto

Katie, the Observer's current Managing Editor, is a senior majoring in political science, with minors in Business Economics and Journalism, Ethics and Democracy. She's a former Walsh Hall resident who now lives off campus and hails from Chanhassen, Minnesota. Follow her on Twitter @katiegalioto.

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