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Chuck Haga, Forum Communications Co., Published April 04 2012

Was court’s Sioux sidestep gutless or reasoned?

GRAND FORKS – The North Dakota Supreme Court’s decision to avoid tackling the constitutional question in the Fighting Sioux nickname case baffled, disappointed and angered some observers.

“Pillars of integrity, apparently, unwilling to make a decision,” one person wrote, responding to an online newspaper report about the opening released Tuesday. “Gutless. Do your jobs, or make room for someone who will.”

Another wrote, “It is pathetic. … This sticking their heads in the sand is unforgiveable.”

But lawyers following the case and those with ties to it were reluctant to chide the court for stepping aside.

Grant Shaft, president of the state Board of Higher Education and a lawyer, said he’s disappointed the court didn’t declare the law unconstitutional but called the decision “reasoned.”

Sen. Mac Schneider, D-Grand Forks, an attorney who argued on the Senate floor last year that it was time to let the nickname go to protect the University of North Dakota’s athletic programs, said Wednesday that he respects the decision.

“The case deals with novel constitutional issues. By law, a constitutional decision requires four votes from the five justices. They had three, so their decision not to take it on was not surprising,” he said.

Attorney General Wayne Stenehjem’s office had asked the court to declare unconstitutional the 2011 law requiring UND to keep the nickname and to strike from the June 12 ballot a referendum on that law, which was repealed in a November special session.

Stenehjem agreed it was not a surprising move. “It is an extraordinary step that a court would be reluctant to take, to deprive the voters of an opportunity to vote on an initiated or referred measure,” Stenehjem said.

Shaft noted that the board weighed that very concern when it decided to seek a declaratory judgment from the Supreme Court. Board members felt compelled to challenge the law to protect the university.

Stenehjem said the North Dakota Supreme Court has prevented measures from reaching the ballot before when justices thought the measures “improper,” but “never before in this kind of a case.

“I really did think this was a proper case for them to exercise their original jurisdiction” and grapple with the constitutional question, he said, which would have spared the state from “going through an expensive and contentious campaign that may result in an ineffective result.”

If the referendum fails and the nickname law is rejected, he said, its constitutionality becomes a moot issue. If it is approved, it almost certainly will come before the court again.

“The court said, correctly, that when the people act, they can no more transgress than the Legislature can,” Stenehjem said. That is, a measure adopted by the voters through initiative or referendum, just as one adopted by legislators, can be found unconstitutional.

Allen Olson, a former North Dakota governor and attorney general now living in Arizona, said the nickname issue “is not the issue an appellate court would want to decide a constitutional issue on,” but “if North Dakota doesn’t clean up this issue, the NCAA is going to stick to their position, and UND is going to be in a very difficult position.”

As a UND alumnus, Olson has been involved in the university’s efforts to retire the name, and the coming campaign concerns him.

“Issues like the nickname are so emotional, people on both sides can lose judgment,” he said, “especially after this much time and all the intangibles, all the unknowns.”

Olson said he appreciates arguments made by the two justices who declined to consider the constitutional issue. “It’s perfectly understandable from a legal standpoint. Unfortunately, this issue has consequences that are so unusual. This was an opportunity to stop the train right here and have a definitive decision. Now we have to go two more months.”

Stenehjem said the ruling doesn’t indicate which way the justices might lean on the constitutional question: whether the Legislature infringed on the state board’s authority to govern institutions under the board’s control. He said they were “very careful not to say that.”

“They’re not going to answer a constitutional issue until or unless they have to, or until they feel they can resolve it,” he said.

Stenehjem said even the two justices reluctant to take up the constitutional issue before the election “recognize that if the voters vote to continue use of the nickname and logo, the question will be back before the court.” Both conceded in separate opinions case law provides precedent to take up the core question.

So while campaigning on Sioux vote is likely to be dominated by arguments over what damage keeping the nickname may inflict on UND, Stenehjem said the potential constitutional conflict will be “looming throughout the discussion.”

Chuck Haga writes for the Grand Forks Herald

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