Attorneys seek to seal records in Mandan Catholic school abuse reporting case
Attorneys representing three officials at a Catholic school in Mandan have filed motions with a judge to try to close public records relating to criminal cases against them that were dismissed under an agreement with a prosecutor.
The motions brought on behalf of David Fleischacker, Christine Fleischacker and Thomas Hoopes pertain to a criminal complaint naming the three as well as a priest, Josh Waltz, that resulted in a criminal charge being filed.
That complaint, prepared in June by a Mandan police detective, accuses all four people of failing to report sexual assaults allegedly committed by a teenage male student at the School of the Holy Family between 2020 and 2023. The school housed within the Church of St. Joseph in Mandan opened in 2020, educating students in grades 7-9, and expanded to include students in grades 10-12, according to the school's website and student handbook.
The Fleischackers and Hoopes were all charged with a misdemeanor count of failure to report suspected child abuse or neglect by a mandatory reporter. That charge carries a maximum sentence of 30 days in jail and a fine of up to $1,500.
Hoopes is principal at School of the Holy Family, David Fleischacker serves in an administrative position of Montessori mentor and Christine Fleischacker is the director of science at the school, according to an affidavit. At the time of the alleged incidents, David Fleischacker was the principal and Hoopes was assistant principal, the documents stated.
Waltz serves as pastor at Church of St. Joseph, St. Joseph Catholic Montessori School and the School of the Holy Family, all in Mandan. Records pertaining to a similar case filed against him have already been ordered sealed from public view. Because of the seal, identity of the judge who ordered the restriction is not available.
Court documents currently available indicate charges were brought in June against Hoopes and the Fleischackers when all three were issued criminal summons. Court documents indicate all three waived their initial court appearances and entered written pleas of not guilty, which is allowed under state court rules. In August, Mercer County State's Attorney Todd Schwarz - who brought the charges on behalf of Morton County - filed a motion to dismiss all charges after Hoopes and the Fleischackers all filed proof that they had completed training as mandatory reporters.
Trials scheduled to begin on Dec. 8 were canceled following dismissal of the charges, according to court records.
During separate hearings held before South Central District Judge Cynthia Feland on Oct. 22, attorneys for Hoopes and the Fleischackers said public access to case records could be potentially damaging, not only to the defendants' personal and professional reputations but also to the school.
"These cases were dismissed in five weeks," defense attorney Lloyd Suhr told Feland. "A presumption of openness should be lifted."
Suhr represents David Fleischacker, and characterized his client as a 59-year-old career educator with no prior criminal history who had a significant role in formation of the school. Suhr told Feland leaving the case records open would be tantamount to his client having a "permanent criminal record."
Examination of timelines in all three cases indicate Feland signed orders to dismiss the matters on Aug. 9. On Aug. 14, Schwarz and Suhr filed a joint request to prohibit the public's access to records in David Fleischacker's case. Similar documents were filed by attorney Bradley "Scott" Rose on behalf of Christine Fleischacker on Aug. 20 and by attorney Justin Vinje on behalf of Hoopes on Aug. 27.
The joint request maintains that closure of the records to public access is "necessary to protect the defendants' interests," and "there are no reasonable alternatives to closure that will protect those interests."
"I don't know that reporting was mandatory here," Vinje told Feland.
Mandatory reporting
Mandatory reporting of suspected child abuse and neglect is required of a host of different professionals including school teachers, administrators and members of the clergy, according to state and federal law. There is a legal exemption for clergy members who might receive information regarding alleged child abuse or neglect "if the knowledge or suspicion is derived from information received in the capacity of spiritual adviser."
Reporting under state law is made to the Department of Health and Human Services.
Failure to report by people identified as mandatory reporters violates not only state law but federal requirements under Title IX, which requires instances of sexual harassment or violence also be reported to law enforcement. Compliance with Title IX is required by any school, public or private, that receives any federal funding.
Federal funding extends to tax-exempt status commonly enjoyed by private and religious schools, according to a 2022 federal court decision out of Maryland. In that case, three mothers sued a private church-affiliated school in Baltimore over failure to report allegations of sexual misconduct, and the school sought to have the complaint dismissed on the grounds Title IX didn't apply. U.S. District Judge Richard D. Bennett's ruling upheld the complaint. His ruling fell in line with cases heard previously by the U.S. Supreme Court in which justices determined "tax exemption constitutes federal financial assistance for the purposes of Title IX."
The Department of Health and Human Services has not responded to a request for information about a potential Title IX investigation.
The affidavit filed in the Mandan case states that three students enrolled at the school made complaints either to the Fleischackers or Hoopes after incidents involving a boy identified as a male student between the ages of 16 and 17 who allegedly sexually assaulted them. The boy ultimately was expelled in late 2023 for other incidents not directly related to sexual conduct against the girls, according to the affidavit.
Vinje told Feland one of the female students told her therapist about the alleged incidents. That therapist is also a mandatory reporter and is the person who alerted the "appropriate state agency" that led to the investigation by Mandan police, Vinje said.
Alleged assaults
The affidavit states the girls reported multiple instances in which the boy touched them inappropriately, made inappropriate comments and left messages that could be perceived as sexual in nature. The document also says the boy spied on girls while they changed clothing for Mass and had reportedly been observed masturbating in an empty classroom.
In one instance, according to the affidavit, David Fleischacker allegedly told a school employee "all the girls are lying." In reference to another incident, the affidavit states Hoopes allegedly told a female student who reported being assaulted "the only recourse a student had to report a complaint or grievance is to go to a teacher or Joshua Waltz (Father Waltz) to address the issue."
In another instance, a girl reported incidents to multiple teachers and administrators but none of them reported the incidents as required by law, according to the affidavit. One of those staff members reportedly told the girl she should pray for the boy.
Messages from the Tribune sent to David Fleischacker, Hoopes and Waltz seeking comment were not returned.
Presumption of openness
State law specifically states records of public entities such city governments, school districts and the court system are open to members of the public. Open records laws do provide for exceptions and ensure confidentiality for matters pertaining to juvenile defendants, certain domestic relations issues and records pertaining to a person's physical or mental health as well as personally identifying information such as Social Security numbers and banking information.
Generally speaking, records and documents in criminal and civil cases concerning adults are open to public inspection and dissemination unless otherwise ordered by a judge.
Feland instructed Suhr, Vinje and Rose to present evidence that closing the records in the cases against Hoopes and the Fleischackers is appropriate under the court system's administrative rules. Under those rules, a judge may close a particular record, 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 attorneys offered that closure was appropriate since the cases were ultimately dismissed.
Schwarz told Feland he supported the motions for closure, saying the cases were a "situation of omission" brought by the misinterpretation of mandatory reporting laws.
"I wanted them to get the training," Schwarz said. He maintained the three "weren't aware of certain things."
Feland maintained the motions themselves didn't provide sufficient grounds to close the respective case records, even with Schwarz's agreement, and noted a dismissal of charges doesn't automatically qualify as legitimate grounds to close the records from public view.
Rose told Feland all three cases had been working toward a pretrial diversion "that would have effectively sealed the records anyway," but no such diversion agreements were entered in case records. Pretrial diversions, according to the Rules of Criminal Procedure, are written agreements between a prosecuting attorney and a defendant agreeing to suspend a prosecution for a specified period after which the case will be dismissed on condition that the defendant not break the law during a specified period of time. Those agreements must be approved by a judge.
The attorneys were given 10 to 14 days to file their supplemental documents for the judge's consideration. Feland said she would rule on the motions after the documents are submitted. Other options available to the judge under the administrative rules include ordering redactions or imposing partial restrictions.
Reach Brad Nygaard at 701-250-8260 or
Get the latest in local public safety news with this weekly email.
