Montana Supreme Court

Montana Supreme Court Justice Laurie McKinnon asks a question during arguments in the Jon Krakauer records request hearing at the Strand Union Building at Montana State University in Bozeman in April 2016.

Casey Page/Billings Gazette

A court order to redact and submit for release a student-athlete’s disciplinary records would set a “dangerous precedent” for citizens, according to an objection filed this month in the long-running Jon Krakauer vs. State of Montana case.

Private citizens who assert their constitutional right to due process would be forced to give up their privacy rights protected by the Montana Constitution, argued lawyer David Paoli in an objection filed on behalf of an intervenor in the case.

"It is evident the redactions are futile, as such, no records should be disclosed — redacted or unredacted," said the objection filed in Lewis and Clark County District Court.

Court documents refer to the intervenor as "John Doe."

In the lawsuit, investigative author Krakauer won the right to access redacted records in the disciplinary case involving former University of Montana Grizzlies quarterback Jordan Johnson, who was accused of rape.

The judge already ordered the Commissioner's Office to redact records and submit them to the court before their public release; the court is not expected to issue an order in response to the intervenor's objection.

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In the earlier criminal case, Paoli defended Johnson, and a jury acquitted him of sexual intercourse without consent in 2013 in Missoula County District Court.

Before the acquittal, though, multiple campus proceedings found that an unidentified student — at the same time as the incident that led to the charge against Johnson, and with identical facts as the case against Johnson — violated the school's Student Conduct Code.

Then-UM President Royce Engstrom agreed the student should be expelled, but the decision was reversed after the student appealed it. Krakauer won the right in District Court to find out how the Montana Office of the Commissioner of Higher Education handled the case.

An appeal has not been filed with the Montana Supreme Court, but the objection Paoli filed last week summarizes the arguments against redaction and release of records: "Intervenor has worked hard to be heard in this case."

In the objection, Paoli also chastises Krakaur, saying he "ridiculed Intervenor" for not filing a brief "opposing disclosure." He also said the reason redaction is futile is "namely due to Krakauer's actions."

In the court document, the lawyer argues that Doe should retain his privacy rights, and that national publicity in the earlier trial doesn't "diminish the enhanced privacy interest in student records." 

"Intervenor's pursuit and defense of his Constitutional rights, no matter the public attention or reporting, can never, should never, diminish a Montanan's privacy rights," Paoli said in the objection.

"If allowed, dangerous precedent would be set: The public policy of the State of Montana would become that a choice must be made by an individual that to assert his Constitutional Right to due process is relinquishment of his Constitutional Right to Privacy."

Krakauer, a bestselling author, wrote a book about the national problem of campus rape, and he based it on cases in Missoula.

In the objection, the lawyer argued that the publication of a book, "whether it is a 'national bestseller' or not, should never be factored into any privacy analysis; unless, of course the book is written or authorized by the individual asserting the privacy interest.

"Under these facts, to allow such a situation allows the proverbial tail to wag the dog."

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The case weighs the public's right to know the way its government operates against the right of citizens to privacy, both protected in the Montana Constitution. FERPA, the federal Family Educational Rights and Privacy Act, further protects the privacy of students and their records.

In its order, the court noted Doe has an enhanced right to privacy because he is a student, but said other factors weighed more heavily in favor of the public's right to know, including Doe's prominent status as a "high-profile student athlete."

Personal information in the records had already been made "substantially available" in other court records and the "significant national media coverage of a public criminal trial," the court wrote.

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