Chuck Haga, Forum Communications Co., Published April 03 2012
Fighting Sioux nickname headed for June ballot after North Dakota Supreme Court decides not to rule
The North Dakota Supreme Court declined Tuesday to address the constitutional issue raised by the state Board of Higher Education, which claimed that a law requiring UND to keep the nickname improperly intrudes on the board’s authority.
A slim majority of the court was ready to take up the constitutional issue but was blocked by the opposition of two justices and the requirement that such decisions require the support of four of the court’s five members.
“There are not enough members of this court willing to decide the constitutional issue at this time,” Chief Justice Gerald VandeWalle wrote. “We therefore do not address the constitutional issue, and we decline to enjoin the secretary of state from placing the referendum measure on the June 2012 primary election ballot.”
He was joined in that opinion by Justices Dale Sandstrom and Mary Muehlen Maring.
The court’s two other justices wrote separate opinions concurring in denial of the injunction sought to keep the nickname off the ballot, but they said the larger constitutional issue was not properly before the court at this time.
The Legislature had repealed the nickname law during a November special session, but the repeal was referred by nickname supporters led by the Spirit Lake Sioux Tribe’s Committee for Understanding and Respect. The filing of referral petitions had the effect of reinstating the nickname law.
The state board and UND had argued that the law is unconstitutional, and that keeping it threatens to seriously harm the university athletics program.
VandeWalle said he and the two justices who signed on with him “would exercise this court’s discretionary original discretion and decide now the constitutionality of the legislative enactment requiring (UND) to use the ‘Fighting Sioux’ nickname and logo.” They could not do so, however, because the justices writing separate opinions “conclude the issue is not properly before this court at this time (and) is not ready to be decided.”
Secretary of State Al Jaeger received the petitions calling for a referendum on Feb. 7 and certified the petition for placement on the June 12 ballot on March 13.
He said Tuesday that the referral’s ballot language has been approved, and the ballot question will be clear: A “yes” vote will be for keeping the nickname law and, consequently,
Acting on behalf of the state board, Attorney General Wayne Stenehjem had asked the Supreme Court on Feb. 17 to declare the law unconstitutional and to block the referendum. The Supreme Court heard oral arguments on March 15.
Stenehjem said the decision “guarantees this matter will be back before the Supreme Court after the election if the voters agree to continue the use of the name and logo. The constitutional issue will be part of the public discussion.”
His office had argued the statute was unconstitutional “and we continue to maintain that,” Stenehjem said. This is the proper time to determine that, as “the law is on the books” and “the constitutional prerogatives of the state Board of Higher Education are being impinged on right now.”
Grant Shaft, president of the state board, said he was disappointed the court didn’t get to the constitutional issue.
“It was an opportunity for the court to give some clarity” regarding the relationship between the Legislature and the board,” he said. “I didn’t think the decision would hinge on a jurisdictional question.”
Shaft said UND “is clearly going to have to get the facts out there” about consequences of the law being upheld.
UND President Robert Kelley issued a statement echoing that, saying the court’s decision makes it “important that the voters of North Dakota become fully educated” that there would be “long-term negative consequences” for UND and its athletic programs.
“The petition action puts UND in the same position (it) was in last August when the governor (and several other state leaders) met with the leadership of the NCAA,” he said. At that meeting, at NCAA headquarters in Indianapolis, the state leaders pleaded in vain for flexibility from the NCAA on sanctions against UND for keeping the name.
If the referendum is passed, UND will remain under NCAA sanctions, which Kelley warned “will compromise recruitment, scheduling and UND’s relationship with other collegiate athletics programs.”
‘Restores our faith’
Nickname supporters praised today’s court decision.
“This restores our faith in the state government again,” said Eunice Davidson, a leader of the pro-nickname group at Spirit Lake, who has fought for it at the Legislature, in state and federal courts and through the referral petition drive.
She said the nickname law “was passed out of respect for the people’s voices and wishes,” should not have been repealed, and should be reaffirmed in June.
The vote “will allow the people of Standing Rock to finally have their voices heard,” Davidson said. She said she believes voters at that reservation “will vote like Spirit Lake did” in 2009, when the tribe endorsed UND’s use of the name.
Getting approval from both namesake tribes by fall 2010 was a key requirement of the 2007 legal settlement between North Dakota and the NCAA, which has a policy aimed at discouraging use of American Indian names and imagery by member schools. Standing Rock’s Tribal Council, which opposes UND’s use of the Sioux name, declined to arrange a referendum.
Sean Johnson of Bis-marck, a spokesman for the committee that circulated referral petitions, said he was pleased there will be a vote. “That’s what we wanted all along,” he said.
Johnson said “a lot can happen between now and June,” but he remains confident the nickname referendum will pass “based on reaction we got during the petition process.”
He said the nickname supporters also will continue to circulate petitions for an initiated measure securing the nickname in the state constitution.
Timing not right
While declining to rule on the constitutional question, justices on both sides noted that a question certainly exists – and will be back before the court.
“The attorney general’s petition on behalf of the board and the responses in this proceeding raise legal issues regarding the board’s constitutional authority over UND,” VandeWalle wrote.
Those issues are “juxtaposed against the Legislature’s authority regarding institutions of higher education and the people’s authority to refer legislation as a coequal and coordinate legislative entity. The interests of the governmental entities and the people reflect an indisputable tension involving the limits of each entity’s constitutional authority.”
VandeWalle and the majority further noted that the “posture of the issues raised” and the involvement of the Legislature, state officers and the state board “raise fundamental questions involving the prerogatives of the state and the sovereign rights of its people, which are of statewide interest and go to core issues involving the limits of governmental authority.”
Because the filing of the referral petitions had the effect of at least temporarily reinstating the nickname law, it “presents (an) issue sufficient to warrant the exercise of our discretionary original jurisdiction,” the chief justice wrote.
But during oral arguments last month, some justices had asked why the issue had to come before the Supreme Court now without first being heard in a district court, and that question remained in Tuesday’s somewhat divided decision.
In her concurring opinion, Justice Carol Ronning Kapsner wrote that the constitutionality of the law “is not a matter of urgency” requiring immediate action by the court. “If it were so, the board would have challenged its constitutionality, as it could have done, immediately upon its signature by the governor on March 15, 2011, one year ago, or any time thereafter.”
She said she believes “it is improper, under the circumstances, to take this matter from the voters of North Dakota,” and “there is no basis asserted by any party to invoke the mandatory original jurisdiction of this court.”
Kapsner wrote that for the court to judge the board’s assertion, that the nickname law is unconstitutional, “would constitute an advisory opinion in contravention of the reserved powers of the people.”
If voters in June decide the issue “in the manner the board appears to fear, then the issue of whether (the law) is unconstitutional can be adjudicated,” she wrote.
Justice Daniel Crothers also wrote a separate opinion concurring in the refusal to block the June primary vote but disputing the majority’s opinion that the court should exercise its discretionary original jurisdiction to take up the constitutional question.
“I neither doubt nor ignore the board’s claim that continuing controversy over the nickname and logo may be affecting the university’s ‘educational environment and reputation, as well as the financial viability of its sports program,’” Crothers wrote.
But he said the court historically “has been selective of the type of cases accepted in the exercise of original jurisdiction,” and he believes that “the court’s intervention at this time would be unprecedented.”
Dismissing the board’s claim is done, he added, “without prejudice to the ability to revisit the question if it is not rendered moot by voting on the referred measure in June.”
Chuck Haga writes for the Grand Forks Herald
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