Lawyers representing the North Dakota Legislature filed a brief with the state Supreme Court Friday, asserting the assembly's authority and urging the court to deny an injunction sought by the State Board of Higher Education in the Fighting Sioux nickname case.
The issue "goes far beyond the nickname and logo," the brief states. Citing precedent, it states that the core issue involves defining the line that marks the distinction between the board's administrative function and the assembly's legislative functions.
The board argues that a law adopted last spring requiring UND to continue using the name is an unconstitutional infringement on its authority. The Legislature argues that that "is a direct affront to the constitutional authority of the assembly to enact any laws applicable to the public universities of North Dakota."
Describing the history of the board's creation through an initiated measure in 1938 as "a reaction to control over the universities by the executive branch," the Legislature notes that the board "operates more autonomously than other executive branch offices." But it says the board does not have legislative authority.
"Such is reserved to the legislative branch and the people through the initiated measure process," the Legislature says.
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The Supreme Court is scheduled to hear oral arguments in the case on Thursday.
Previous actions
In a teleconference on Feb. 13, the state board asked Attorney General Wayne Stenehjem to seek a declaratory judgment from the Supreme Court that the spring nickname law is unconstitutional. The law was repealed in November but reinstated when nickname supporters filed petitions to refer the repeal to a vote in the June primary election.
The board fears that NCAA sanctions could lead to serious damage to the school's athletics program and student athletes. In a 2007 legal settlement with UND, the NCAA gave the university three years to gain approval from both namesake tribes, which has not happened.
The Legislature says in its brief it is aware "of the potential consequences facing UND's athletic teams as a result of the referral measure reviving the act until a vote occurs. Yet such concerns are secondary in a constitutional analysis."
The Spirit Lake Sioux Tribe's pro-nickname Committee for Understanding and Respect also has joined the case, arguing in a brief filed earlier this week that the issue before the court "involves more than choosing between the Legislature and the State Board of Higher Education and its powers to keep or retire the 'Fighting Sioux' name."
Elders of the tribe and the Standing Rock Sioux Tribe gave the name to UND in 1969 in a religious ceremony, which is immune to "civil interference," the brief said.
Many precedents
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Rep. Al Carlson, R-Fargo, and the House majority leader, sponsored the law that is at the center of the debate. He recently convened the interim legislative management committee to have the Legislature intervene in the board's nickname case.
The Legislature's brief argues that statutes have been enacted concerning many aspects of higher education operations, including providing for free tuition for children of firefighters killed in the line of duty, requiring faculty to be proficient in the English language and regulating political advertising in campus housing. Statutes also deal with anti-discrimination policies, laws against smoking and requirements for worker's compensation insurance.
The state Constitution provides that the legislative, executive and judicial branches of government are co-equal and, "in the case of a referred measure that is in proper form, we are dealing exclusively with the legislative branch of the government. The people are exercising the legislative powers they reserved" under the constitutional provision for initiative and referendum.
The brief cites a 1932 state Supreme Court decision in which the court held it "did not have the power to declare an otherwise valid initiative unconstitutional prior to the people's vote on the measure."
The brief quotes from the court's decision: "The courts, therefore, can no more prevent, when all statutory requirements have been complied with, the people from voting upon a proposed initiative measure than it could prevent the Legislative Assembly, when convened, from voting upon the same measure."
The Legislature says it believes the nickname law to be constitutional and argues the board has the burden of proving it unconstitutional, a determination that would require the votes of four of the court's five justices.
Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or send email to chaga@gfherald.com .
