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Lawyers deliver oral arguments to appellate court on ESPN lawsuit

| Thursday, February 25, 2016

Attorneys from Notre Dame and ESPN delivered oral arguments before a three-judge panel in the Indiana Court of Appeals on Wednesday, the latest development in a lawsuit hinging on Notre Dame Security Police’s (NDSP) status as either a public or private agency, the South Bend Tribune reported Tuesday afternoon.

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ESPN argued in its appeal that Indiana’s Access to Public Records Act (APRA), in its current state, applies to private campus police departments, despite the decision issued in Notre Dame’s favor by St. Joseph Superior Court Judge Steven Hostetler last April.

“What we know from Notre Dame’s own crime logs is they arrest, search, interrogate for crimes such as rape, burglary, larceny, aggravated battery, counterfeit, drug possession, DUIs — these are not the actions of your library security guard who is there to make sure that kids don’t take books,” ESPN attorney Maggie Smith said, according to an audio recording of the oral arguments available on the Indiana Judicial Branch’s website.

ESPN filed a lawsuit against the University in January 2015 after NDSP refused to release incident reports related to student-athletes on two separate occasions.

Since October 2014, two state officials — Public Access Counselor Luke Britt and Attorney General Greg Zoeller — have said they believe Notre Dame to be subject to APRA. Although Hostetler ruled in Notre Dame’s favor, he said there were “persuasive reasons” for the Indiana legislature to amend public record laws.

During the appeal, the judges referenced Indiana House Bill 1022, which would change state law to require private university police departments to disclose certain records. The bill passed unanimously in the Senate in January and will soon be voted on in the Senate.

Throughout the trial process, Notre Dame has maintained its stance that Indiana lawmakers did not intend for APRA to apply to private colleges and universities.

“Certainly, the question before the court here is whether or not the Notre Dame police department is a public agency subject to the law,” Notre Dame attorney Damon Leichty said. “… We think the statute is plainly clear. We think the specific provision that defines ‘law enforcement agency’ clearly does not capture this department.”

Leichty said NDSP derives its power to arrest from the Notre Dame Board of Trustees, not the state. However, Judge Rudolph Pyle questioned how this power to arrest was “magically” given to the Board of Trustees, when the state of Indiana is listed as the authority behind any charges.

NDSP currently releases a limited amount of information about campus crimes, in compliance with the Cleary Act, which applies to all schools that receive federal funding.

Smith argued there are already mechanisms in place that allow public colleges and universities to fulfill with their Cleary Act obligations and their obligations to comply with public record laws.

“The functions performed by the Notre Dame police department, in its context of being an educational police force, are exactly the same as the functions performed from IU, Purdue, Ball State,” she said. “[They] are subject to both, and they do it just fine.”

If the court finds private universities to be subject to public record laws, Leichty said other private entities with police departments — including hospitals, investigation agencies and railroad companies — would be impacted.

Chief Judge Nancy Vaidik said the court would issue a ruling “as soon as possible,” though she did not provide a timeline.

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