Benny Baker

You raise a good point. If the SBHE argues that the nickname controversy infringes on their constitutional power to ensure "efficient and economic administration of UND", then wouldn't the absence of a nickname and its corresponding financial disadvantages through the loss of merchandise sales, no local businesses adverstising a logo or nickname, etc. make the repeal bill unconstitutional as well.

Good point. But doesn't this go back to the question of who had authority over the nickname? The way the SBHE is appearing to now posture their argument is that while they didn't control the nickname issue, the legislation will infringe on their constitutional duty to ensure "effective and economic administration" of UND. This is just speculation, but the SBHE may go a head and say that the legislature "chose the path and had the power to make the choice"; however, the issue is that the legislation infringed upon an unrelated source of the SBHE's constitutional authority.

I agree with everything you say. But as it stands now, Hak doesn't coach the women's team, he doesn't coach the football team, not does the NCAA allow for home playoff games hockey.

Or maybe he hasn't bought into the sky is falling mentality yet. From a hockey standpoint, let's he honest. UND is secure in their conference. UND will never host home NCAA playoff games. The decision to discontinue the rivalry with Minnesota and Wisconsin are Minnesota and Wisconsin's alone. UND wants to continue the rivalry; the Big Ten schools apparently do not. Please spare me from the "but it is UND's decision! Only if the bowed down to the demands of the NCAA then the games would be back one" comments.

I will continue to agree that this legislation went against the intent and purpose of the settlement agreement. But due to the language of the settlement agreement, I can't say that there is an irreconcilable conflict. "If UND does not adopt a new nickname or logo . . . then UND will be returned to the list of institutions subject to the policy." I think the argument can go both ways in some respects. Had UND adopted a new nickname, wouldn't we see nickname proponents arguing that UND violated the terms of the settlement, which provided that the school could choose to keep the nickname and face the sanctions? http://www.ag.nd.gov/NCAA/SettlementAgreement.pdf

Yup, I hear this is the new angle the SBHE is taking, which is a lot better than their old argument that they actually control the nickname. I'm still of the opinion that this could go either way. But is the court really going to start reviewing legislation after legislation because some feel it may have a negative economic impact on a university? Is the SBHE going to challenge the constitutionality of legislative appropriations if the board feels that they aren't receiving enough money for effective and economic administration of universities? IMHO, this isn't a slippery slope I want the Supreme Court to go down. I'm all but sure Justice Kapsner would say the law is constitutional. Nickname proponents only need to find one more.

Not necessarily. The SBHE is part of the executive branch, so when we talk about the inherent power to draft laws (like the nickname legislation), this authority is constitutionally reserved to the legislature and the people, not the SBHE.

He must not be any good though, because all I've heard the past week is how bad UND's recruiting is supposed to be due to some sort of collateral nickname issue.

[¶13] The parties have postured their argument as an issue about contractual interpretation. When a settlement agreement is merged into a judgment, however, the agreement is interpreted and enforced as a final judgment and not as a separate contract. But aren't they making it pretty darn clear that they are not electing to treat the settlement agreement as a contract?

[¶13] The parties have postured their argument as an issue about contractual interpretation. When a settlement agreement is merged into a judgment, however, the agreement is interpreted and enforced as a final judgment and not as a separate contract. <a href=http://www.ndcourts.gov/court/opinions/20060037.htm">Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441; Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199; Sullivan v. Quist, 506 N.W.2d 394, 399-400 (N.D. 1993). Although the actual judgment dismissing the prior action by the Board and UND against the NCAA is not part of the record in this case, the order for judgment of dismissal in that action is part of this record and says that "[e]ach of the claims set forth against [the NCAA] are dismissed with prejudice on the terms set forth in the Settlement Agreement, incorporated herein by reference." http://www.ndcourts.gov/_court/opinions/20100022.htm Is this simply and issue of how the court interpreted the settlement or determining the specific legal status of the settlement? I view the settlement as being and "either or." In other words, UND chose to live with the terms of the settlement; they'll face the sanctions. Although I completely agree that this what probably not the idea of what the NCAA had in mind.

I am clearly missing my ability to use the correct form of the word "your." But, thanks for the answer because I've never seemed to get an explanation as to this question.

Can you explain you're opinion on the contracts clause issue? I thought the Supreme Court said the settlement was not a contract as it merged with the final judgment. I'm obviously confused about something.

Didn't the Supreme Court dispose of the issue when it stated that because the settlement agreement merged into the final judgment that this was no longer a contract, but rather a court judgment? Or does the contracts clause apply to court judgments as well?

Absolutely agree. I have my concerns with the legislature's decision-making as well.

So it's fine if the legislature determines the proficiency of the faculties' English? It's fine that the legislature determined the size of property upon which UND's alumni building sits? It's fine that the legislature caps the SBHE's student fee increases? It's fine that the SBHE needs legislative approval to improve or construct university buildings even with non-public money? It's fine that the legislature, and not the SBHE, created UND's child welfare research bureau, nursing education consortium, and many more programs?.... Because these are all written into statute exactly like the nickname legislation. This does not even begin to cover the amount of statutory law, which limits the State Board's power. Now, the nickname law may very well be unconstitutional. But if that is the case, so are many of our other laws.

Not true whatsoever. Direct legislative control of higher education ended in 1913. The State Board was created in 1939 to replace the Board of Administration, which was filled by gubernatorial appointments without legislative ratification. Now, membership to the state board requires the Senate's approval. In fact, the State Board was established to further the legislature's presence.

Yes, this is what should be referenced by those who believe the law is unconstitutional. The concern with this approach, however, is that the above-quoted statement was not the holding of the case, but rather dicta that the court is not bound to follow. In essence, the question of who controls the nickname was not an issue before the Court as the case dealt with interpretation of the settlement agreement. The constitutional issues were not briefed for the Court in the Davidson case. Given more legal and factual background, the Court could come to an entirely different conclusion. But you're correct insofar as this case being the best argument for the law's unconstitutionality.

And some people believe the SBHE is responsible for many aspects of higher education subject to numerous limitations. As stated, the legislature can name the hockey arena but not the hockey name? 15-11-38. Ralph Engelstad arena. The hockey arena constructed on the campus of the university of North Dakota with funds donated by Ralph and Betty Engelstad is officially named the Ralph Engelstad arena. 15-10-13.1. Faculty - English language proficiency. Any professor, instructor, teacher, assistant, or graduate assistant at a state institution of higher education must exhibit written and verbal proficiency in the English language. Any deficiency must be remedied by special training or coursework provided by the institution. So the SBOHE is fine with having the legislature choose the name of UND's hockey arena, but they're going to challenge the legislature's choice of the hockey team's name? But the legislature also mandates that faculty members speak and write English to a proficient degree. For anyone familiar with the Century Code, they would also be aware of the fact the the legislature limits the SBOHE's student fee increases; requires the SBOHE to seek its approval when improving university land and infrastructure in several situations; and created multiple programs and consortiums at institutionals all throughout the state without the backing of the SBOHE. This isn't even the tip of the ice berg, in fact, our state has multiple chapters of statutes that limit the SBOHE's supposed autonomy. For those of you unaware of the history, the SBOHE was created because its predecessor, the board of administration, was free of legislative oversight. Now the Senate must confirm the governor's appointments to the SBOHE. So indeed, there are "stautory limits" far beyond reorganizing an institution elsewhere. Such as choosing the name of the hockey arena, mandating english-proficient teachers, and perhaps even mandating a school nickname

The board's constitutional authority is limited. An amendment to the constitution would simply act as another limitation. The constitution references statutory limitations that the Board must follow as well.

There is absolutely no way on Earth that UND will have home series against Minnesota and Wisconsin at the Ralph every year. And the reason is because of the Big Ten Hockey Conference. The hockey issue has waaay more to do with realignment than with the nickname.

I agree, this is an interesting provision. But I'm having trouble reconciling a few things. From the ND Century Code: 15-11-38. Ralph Engelstad arena. The hockey arena constructed on the campus of the university of North Dakota with funds donated by Ralph and Betty Engelstad is officially named the Ralph Engelstad arena. 15-10-13.1. Faculty - English language proficiency. Any professor, instructor, teacher, assistant, or graduate assistant at a state institution of higher education must exhibit written and verbal proficiency in the English language. Any deficiency must be remedied by special training or coursework provided by the institution. So the SBOHE is fine with having the legislature choose the name of UND's hockey arena, but they're going to challenge the legislature's choice of the hockey team's name? Really? But the legislature also mandates that faculty members speak and write English to a proficient degree. For anyone familiar with the Century Code, they would also be aware of the fact the the legislature limits the SBOHE's student fee increases; requires the SBOHE to seek its approval when improving university land and infrastructure in several situations; and created multiple programs and consortiums at institutionals all throughout the state without the backing of the SBOHE. This isn't even the tip of the ice berg, in fact, our state has multiple chapters of statutes that limit the SBOHE's supposed autonomy. For those of you unaware of the history, the SBOHE was created because its predecessor, the board of administration, was free of legislative oversight. Now the Senate must confirm the governor's appointments to the SBOHE. So indeed, there are "stautory limits" far beyond reorganizing an institution elsewhere. Such as choosing the name of the hockey arena, mandating english-proficient teachers, and perhaps even mandating a school nickname. But hey, it all turns into a crapshoot when it goes to court.

Since Lucia and UMN have had a noncomittal stance regarding UND hockey ever since the BTHC conference was created, don't assume this is entirely a nickname issue. The Gophers are committed to playing Notre Dame for four years. Why didn't UMN sign up to play North Dakota after we all thought the nickname controversy was over? It'll be interesting to see everyone's reactions when UND changes the name back to nothing and the school is still not playing the gophers in hockey. And no, their is nothing to prevent other schools from adopting this position, but I'm not going to assume that the 350 Division 1 schools in existance are all going to collectively adopt this same position. Remember Al Carlson was wrong in his assumption that the state law would change the NCAA's stance. Losing hockey rivalries will be unfortunate. But UND may lose those regardless of the nickname. Other than that, screw Minnesota, Iowa, and Wisconsin. The Big Sky is infinitely more important.

God forbid North Dakota doesn't get to play Iowa and Minnesota in athletics. It'll be the end of UND's athletic program as we know it. Who is going to take UMN and Iowa's place since they've been yearly opponents and supporters of UND's program for so long . . . oh, wait . . . I think UND will be just fine not playing institutions that they've haven't played in decades. The bigger issue is conference affiliation.

The Constitution makes the SBOHE autonomous? Don't think so. Would it be unconstitutional for the legislature to decide the name of UND's hockey arena? Would it be unconstitutional for the legislature to choose the language proficiency of UND's faculty, too?