BISMARCK (ND)
Bismarck Tribune [Bismarck ND]
January 30, 2025
By Brad Nygaard
A South Central District Court judge has denied a request to close court records from public view in the cases of three people who were associated with a Catholic school in Mandan where a teenage male student allegedly committed sexual assaults.
Closure petitions were brought by Thomas Hoopes and David and Christine Fleischacker last fall after criminal cases filed against the three for failing to report the alleged assaults were dismissed. At the time the charges were filed, Hoopes was the assistant principal, David Fleischacker held an administrative position and his wife Christine was a teacher and the school’s director of science.
Following a hearing last November seeking closure of their case records, Hoopes and the Fleischackers each filed affidavits outlining why Judge Cynthia Feland should grant the motions despite the “presumption of openness” of court records referred to in state law and the state judiciary’s administrative rules.
Under those rules, a judge may grant a petition to close court records from public inspection, but only after consideration of factors that include a risk of injury to individuals, individual privacy rights, proprietary business information or public safety. All three additional affidavits claimed closure to public inspection was desired in order to protect professional reputations and the reputation of the school.
Feland’s ruling in Christine Fleischacker’s case notes “All charges, whether ultimately dismissed or not, are stigmatic to some degree,” but “a potential stain to her reputation” or to that of the school didn’t override the presumption of openness of court records.
“Any member of the public reviewing the docket can see that the charge was dismissed. Therefore, complete restriction of public access to the record would be far broader than necessary to protect any interests of the defendant,” Feland’s ruling states.
Similar wording is used in the orders denying the petitions brought by David Fleischacker and Hoopes.
Hoopes’ attorney, Justin Vinje, declined comment to the Tribune on Feland’s order. Attorneys for the Fleischackers did not immediately respond to Tribune requests for comment Wednesday.
Hoopes and the Fleischackers were charged with a misdemeanor count of failure to report suspected child abuse or neglect by a mandatory reporter. That followed an investigation by Mandan police into allegations the three in their capacity as faculty members and administrators at The School of the Holy Family in Mandan failed to report allegations of sexual misconduct that were brought by female students against the male student between 2020 and 2023.
In one instance, according to a police affidavit, David Fleischacker allegedly told a school employee “all the girls are lying.” In another instance, according to the document, a girl reported incidents to multiple teachers and administrators but none of them reported the incidents as required by law. One of those staff members reportedly told the girl she should pray for the boy.
Court documents in all three cases indicate Morton County Special Assistant State’s Attorney Todd Schwarz dismissed the charges after Hoopes and the Fleischackers received training in mandatory reporting requirements and procedures.
A fourth person also was charged — the Rev. Joshua Waltz, who serves as pastor at the Church of St. Joseph in Mandan and at St. Joseph Montessori School and at School of the Holy Family. Court records pertaining to Waltz were earlier ordered sealed. Because of that order, it is impossible to determine which of the 10 district court judges signed the order.
The state House of Representatives earlier this week passed an unrelated bill that seeks to automatically close court records in cases in which charges are dismissed, suspects are found not guilty or they receive pardons from a governor. House Bill 1166 is opposed by the North Dakota Supreme Court. During a hearing on the bill, Sara Behrens, a staff attorney with the State Court Administrator’s Office, testified procedures are already in place to close court records in certain cases. Behrens also testified if necessary, the administrative rules could be modified, rather than have a specific statute passed.
Supporters maintain that sealing records would protect people’s right to privacy. House Bill 1166 passed by a vote of 90-0 and will now be heard in the state Senate.