North Dakota Attorney General Wayne Stenehjem has asked the state Supreme Court to exercise its original jurisdiction and issue an order declaring the UND Fighting Sioux nickname law unconstitutional.
Stenehjem was asked to take the nickname issue to the high court by the State Board of Higher Education, which has sought to retire the nickname and contends that the Legislature's adoption of a law last April requiring UND to keep it infringed on the board's authority.
In the application for an injunction filed today, Stenehjem also asks the court to enjoin Secretary of State Al Jaeger from putting a proposed referendum concerning the nickname on the primary election ballot.
Schneider critical of Carlson
Also today, state Sen. Mac Schneider, D-Grand Forks, sent a sharply worded letter to House Majority Leader Al Carlson, R-Fargo, who wrote the nickname law that was adopted in April but repealed during a special session in November.
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Carlson said this week he would fight the State Board's effort to have the Supreme Court toss his law as unconstitutional.
Noting that an "overwhelming" majority of legislators voted in November to repeal the law, Schneider wrote that "there can be no interest of the legislative branch served by taking a legal position in opposition to the action the Legislature itself took just three months ago."
He wrote that Carlson is threatening to turn what has been "a mere spectacle" into a "complete farce."
Schneider disputed the contention that the State Board's action is "about silencing the voice of the people," and he expressed confidence that the people -- if called to vote on an initiated measure -- "will show better judgment than their elected representatives did when they initially decided to senselessly and harmfully involve themselves with the nickname issue."
Carlson was not immediately available for comment.
Stenehjem seek 'expedited hearings'
Stenehjem also asked the court for an expedited hearing schedule "in light of the significant harm the referendum petition may cause" to the board and UND. He asked that any response brief be due within two weeks, with oral argument scheduled "as soon thereafter as possible."
In a letter today to Stenehjem, Jaeger acknowledged receipt of the filing and asked, "because you have determined to represent (the State Board), I request that you appoint counsel to represent me ... in my official capacity."
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In his brief filed with the court, Stenehjem states that the Supreme Court may properly exercise its original jurisdiction in the case -- not waiting for it to come through a district court -- because the issue "is of interest to the state as a whole" and because it involves the constitutional issue of separation of powers.
He cited Article 8, Section 5 of the North Dakota Constitution, which sets out the authority of the state board, and the Supreme Court's 2010 decision in a case involving the board and efforts to retire the nickname, as demonstrating the unconstitutionality of the April law.
Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or send email to chaga@gfherald.com .
