What Needs to Happen

[Benny Baker]

Precisely. No, you're not.

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.

[PhillySioux]

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.

He explained nothing.

[82SiouxGuy]

I understand your points but the SBoHE is just plain being stupid here. They probably have a lower approval rating in the state than the U.S. Congress has nationally, given all that has transpired and given that there is a high degree of mistrust for the de facto fourth branch of government (lesislature and the citizens of ND) already. Now, they're going only to add to that by opposing the will of the voters? Sure, "we're just challenging the constitutionality of the law; we're not challenging the voters." Right. Even if they're sincere about that, do they really think that people are really going to appreciate or care about such an esoteric nuance? That representation is just going to fall on the ash heap with Shaft's unfounded Notre Dame comment and with the SBoHE hurrying up the nickname retirement in response to a favorable vote on Spirit Lake. I'm not a PR person but even I can see that whoever is advising the SBoHE needs to seriously think about making a career change. And, let's not forget that this little move will only add gasoline to the fire and quite possibly will result in more national media attention. So, in one fell swoop the SBoHE has 1.) caused resolve to become even more strong and passionate; and 2.) given even more fodder for national media. Capital move guys! Good show! Those of you on here who purport to have the interests of the university first and foremost and who oppose the petition process - and you do obviously have legitimate arguments/concerns - aught to be both stunned and incensed by this complete lack of foresight and utter absence of common sense. For once, Jacobs made a lot of sense yesterday with his piece. I guess it will be his turn to be Cassandra in this whole process.

If the SBoHE were worried about their approval ratings, yes, this would be a bad move. But this isn't a job for any of them. They all have other careers. They are trying to do what is best for the school and to establish what the SBoHE role is in the state. And if the law is unconstitutional, it shouldn't be on the books. We have a Constitution for a reason, and it should be followed. Do you and the rest of the nickname-at-all-costers really need bad law to get your way?

As far as adding to the fire, you are probably right for the group that really doesn't care about the University and only care about the nickname. But that group was mainly lost anyway. If there is a battle over a constitutional amendment it will be won or lost based on getting the facts out about the potential damage to the University and the Athletic Department. I am confident that a lot of people would vote against the amendment if they can look at the issue without the emotion. Too many people have accepted the misinformatioin that has been put out there.

As far as the rest of your diatribe about the NCAA. Yes, the NCAA is the bad guy. But by all previous legal battles, they are doing things legally. Just because we don't like them doesn't mean they aren't legal. UND already settled a court case and got what they felt was the best settlement possible. The Spirit Lake lawsuit will determine if there are any other legal methods to get around the NCAA. Blowing up UND isn't a good plan. Maybe the fact that no politicians will go near this right now should prove to you that the NCAA has a winning hand right now. Again, just because we don't like the policy doesn't mean it isn't legal.

[Benny Baker]

I don't know of any declaration by the NDSC declaring the settlement to not be a contract, not impossible though. Even so, I am fairly confident that the legislature cannot tell anyone to run afoul of a court order. Either way.......

[¶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.

[sioux2013]

I am the last person you want to make anything simple or explain anything rationally :~) But, my take is that this is a very stupid move. Maybe they get the law declared unconstitutional; maybe they don't. In any event, they make the liklihood of having a constitutional amendment enshrining the nickname more likely. Maybe they win the battle only to make things much more complicated further out and draw more national media. I do not agree with your perspective that keeping the nickname dooms UND athletics. The NCAA is holding a gun to UND's head for a very flippant and capricious reason: They just don't like the nickname and they feel that they have the power to just impose their will and monopolistic power on any school. It's pure ego and pure conceit. Many of you have bought into this distortion. The nickname and logo do not hurt anything. It is the sheer arrogance, conceit and mercurial disposition of the NCAA that is the real issue here. That is what is being challenged.

The SBoHE, UND, Alumni, etc should buck up and emulate and join the Sioux people (yes, they ARE leading this - you can take that to the bank) who are fighting against this low-core aggressive juggernaut. All of you should be contacting the MIA congressional delegation and telling them to pull their heads out and intervene; what a trio of empty-suits. Tip O'Neill, a very bright former Speaker of the House, said that "All politics is local." If the tune of 17,000 signatures on a local issue has not garnered their attention, they're either being advised poorly or they're just obtuse. The Republicans should be especially concerned because this would tell me that a lot of people would be supporting more "conservative" or "libertarian-minded" opponents in any primaries down the road.

The psychology being employed by the NCAA is quite transparent: It's economic terroistic threats, pure and simple. Many of you have acquiesced to it. It's no different than some petty fool threatening to blow up a building with a bunch of people in it if that petty fool's demands are not met. One can never cede anything to this sort of disposition. The economic terrorism reality aught to serve as a clairon call for overt, inflexible and unyielding opposition to the NCAA by everyone so victimized. Everyone is being victimized by the NCAA, especially the Native Americans.

I disagree. The NCAA does not care what our laws are. They have already said this. They are the governing body that we play in , not the constitution of North Dakota. If we want to play all sports in D1 then yes passing this law will damage that.

[ScottM]

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.

I think your answer lies in Sections 13 and 14 of Davidson. The court takes the position that a settlement agreement is interpreted the same as any other agreement. In the case of ambiguity or confusion normal rules of contract interpretation will apply. In this case, the parties were arguing over whether there was any intent to include SL and/or SR in the terms of the agreement, and there was none from the plain terms of the settlement. Their only role was to effectively approve UND's use of the moniker.

As a practical matter, the final judgment signed by Judge Jahnke was an approval of the settlement agreement, not a reduction of a contract to a judgment, such as if one sues for breach of contract. The settlment can be enforced like any other agreement in the event of a breach by any party to it. Accordingly, the odds seem good that if the court elects to treat the settlement agreement as a contract entered into by the State vis a vis the Board, no law or even constitutional referendum can force the state to breach it or modify that agreement.

[Benny Baker]

I think your answer lies in Sections 13 and 14 of Davidson. Accordingly, the odds seem good that if the court elects to treat the settlement agreement as a contract entered into by the State vis a vis the Board, no law or even constitutional referendum can force the state to breach it or modify that agreement.

[¶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?

[ScottM]

[¶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?

If you read the cited cases, they are basically treating a settlement like any other agreement that can be enforced like a judgment in the event of a breach. It's not very artful drafting, but they are telling the parties that the case was dismissed pursuant to an agreed settlement, and its terms have the same effect as any other contract. In my own view, they are mixing the extinguishment of contract rules somewhat with their own attempt to say "a deal's a deal", no matter if it's a settlement, agreement or stipulated judgment.

[UND92,96]

Updated/expanded Herald article: http://www.grandfork...icle/id/229350/

[ScottM]

Updated/expanded Herald article: http://www.grandfork...icle/id/229350/

Reed Soderstrom, a Minot attorney and leader of the nickname supporters’ efforts to put the nickname issue to a popular vote, sat in on the conference call at Minot State University, but the connection there was lost about midway through the meeting. Responding later to the board’s action, Soderstrom’s group issued a statement saying that board members “no longer respect who they serve — the people of North Dakota.” Despite “very serious problems within the North Dakota University System,” according to the statement, “our State Board of Higher Education has instead decided their priority should be trying to use the legal system to disenfranchise the voters of North Dakota. “It is clear to us they fear an overwhelming mandate would be given by those voters to keep the name. It is also clear to us that with this decision, the board has lost their way, and should no longer be entrusted with the responsibility of oversight of the university system.”

Apparently, ol' Reed lacks the courage of his convictions to represent his SL clients to the fullest in their federal litigation. I love how he basically ignores the very real threats posed by NC$$ sanctions against UND's athletes while he postures. Sounds like a poster or two around here too ... Can't wait for the next blast from SAB and their FOIA "discoveries"

[Teeder11]

Apparently, ol' Reed lacks the courage of his convictions to represent his SL clients to the fullest in their federal litigation. I love how he basically ignores the very real threats posed by NC$$ sanctions against UND's athletes while he postures. Sounds like a poster or two around here too ... Can't wait for the next blast from SAB and their FOIA "discoveries"

It's become my daily comic relief.

[82SiouxGuy]

One thing that I find interesting is that the nickname-at-all-cost people, and especially a certain blogger, are trying to claim that they want what is right. But they are willing to get it by using a potentially unconstitutional law. They are willing to go against the North Dakota Constitution to get what they want. Isn't that just a case of the ends justifying the means for them? The Constitution is supposed to mean something, it's the framework of our government. But obviously it doesn't mean anything to the nickname-at-all-costers.

[jedi]

One thing that I find interesting is that the nickname-at-all-cost people, and especially a certain blogger, are trying to claim that they want what is right. But they are willing to get it by using a potentially unconstitutional law. They are willing to go against the North Dakota Constitution to get what they want. Isn't that just a case of the ends justifying the means for them? The Constitution is supposed to mean something, it's the framework of our government. But obviously it doesn't mean anything to the nickname-at-all-costers.

The Constitution only means something to people like Rob Port when it supports what they want. When someone tries to uphold a Constitutional provision he does not like, that person is suddenly going against the "will of the people."

[ScottM]

The Constitution only means something to people like Rob Port when it supports what they want. When someone tries to uphold a Constitutional provision he does not like, that person is suddenly going against the "will of the people."

I can't decide if it's really a form of relativism, political expediency, or just good ol' fashioned hypocrisy.

[Cratter]

It is pretty sad that the SBOHE is trying to undermine the people of North Dakota.

[ScottM]

It is pretty sad that the SBOHE is trying to undermine the people of North Dakota.

You do realize the litigation against the NC$$ was brought on behalf of the people of the state. Now, are you trying to tell me they're going to welch on a deal agreed to by their elected officials? Moreover, if the people of North Dakota were so bent out of shape, why did they allow the process to get to its current state? Where were their elected officials in 2005?

Florida and Utah got a great deal, and the poor ol' cornpones in NoDak got shafted because they sat on their hands. *sarcasm

[Teeder11]

I can't decide if it's really a form of relativism, political expediency, or just good ol' fashioned hypocrisy.

Professional contrarianism pure and simple. Stir the pot, attract hits to said website, and by turn it spurs responses, to hell with whether he truly believes it or not. It's a tried and true model started by yellow journalism editorialists and perfected by talk radio.... now we're in the age of the Internets.

[PhillySioux]

Professional contrarianism pure and simple. Stir the pot, attract hits to said website, and by turn it spurs responses, to hell with whether he truly believes it or not. It's a tried and true model started by yellow journalism editorialists and perfected by talk radio.... now we're in the age of the Internets.

I like to call it "the professional bitching class." These folks reside on all sides of the political spectrum. They add nothing and they create nothing, they just piss and moan all day long.

[GeauxSioux]

I can't decide if it's really a form of relativism, political expediency, or just good ol' fashioned hypocrisy.

I think it is that last bit you mention.

[Melvin]

It's become my daily comic relief.

Well Heck Rob Port is a big fat know it all, he is all knowing and a self described political genius, I don't know anyone smarter than him... Heck, If he says that the BSC is bluffing he has to be right, and who are we to question this gas bag, and lets not forget that he is the self professed leader of the ND Tea Party as well. I mean how dare we question this clown... I am sure a man of Port's political stature has already polled all of the BSC presidents and gotten a feel for where they are standing on the issue. There is no one smarter than this guy in North Dakota, he is a self professed expert on everything political in ND.

What a clown. What a gong show...

[bincitysioux]

It is pretty sad that the SBOHE is trying to undermine the people of North Dakota.

The "people" of North Dakota gave the Board the powers that they have.

The SBOHE is not trying to unrdemine me. They are doing exactly what I, a resident of North Dakota, wants done.

The State Board of Higher Education is acting well within their democractic and constitutional rights.

Link

The State Board of Higher Education is the policy-setting and advocacy body for the North Dakota University System and the governing body for North Dakota's 11 publicly supported colleges and universities. The SBHE also oversees the NDSU Extension Service and Agricultural Research Stations, Northern Crops Institute, State Forest Service and the Upper Great Plans Transportation Institute.

The SBHE is made up of seven citizen members appointed to four-year terms by the governor and one student appointed by the governor to serve a one-year term. The Council of College Faculties selects the board's non-voting faculty advisor, and the NDUS Staff Senate selects the board's non-voting staff advisor.

Al Carlson can piss & moan all he wants about the State Board being a "4th Branch" of government, but simply put they don't have that power. Just because he disagrees with their position on an issue that they have total control over, doesn't make it so.................

[JohnboyND7]

To answer the question in the thread title....we need to audit the boyscouts and make sure they are filing their taxes properly after they sell all this popcorn.

[dagies]

One thing that I find interesting is that the nickname-at-all-cost people, and especially a certain blogger, are trying to claim that they want what is right. But they are willing to get it by using a potentially unconstitutional law. They are willing to go against the North Dakota Constitution to get what they want. Isn't that just a case of the ends justifying the means for them? The Constitution is supposed to mean something, it's the framework of our government. But obviously it doesn't mean anything to the nickname-at-all-costers.

And if the court ruling goes against their wishes, the justices will be branded "activist judges".

[darell1976]

The "people" of North Dakota gave the Board the powers that they have.

The SBOHE is not trying to unrdemine me. They are doing exactly what I, a resident of North Dakota, wants done.

The State Board of Higher Education is acting well within their democractic and constitutional rights.

Link

The State Board of Higher Education is the policy-setting and advocacy body for the North Dakota University System and the governing body for North Dakota's 11 publicly supported colleges and universities. The SBHE also oversees the NDSU Extension Service and Agricultural Research Stations, Northern Crops Institute, State Forest Service and the Upper Great Plans Transportation Institute.

The SBHE is made up of seven citizen members appointed to four-year terms by the governor and one student appointed by the governor to serve a one-year term. The Council of College Faculties selects the board's non-voting faculty advisor, and the NDUS Staff Senate selects the board's non-voting staff advisor.

Al Carlson can piss & moan all he wants about the State Board being a "4th Branch" of government, but simply put they don't have that power. Just because he disagrees with their position on an issue that they have total control over, doesn't make it so.................

So this should be a slam dunk right?? The SBoHE has the power and the legislature doesn't.

[Benny Baker]

So this should be a slam dunk right?? The SBoHE has the power and the legislature doesn't.

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.