What Needs to Happen

[darell1976]

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.

I heard on the news that because this law has "economic" threat to UND it falls under the SBoHE not the legislature.

[Chewey]

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...

I don't agree with Rob Port on about 99% of what he says but he's no more of a gas bag than McFraud down in Fargo or Leigh Jeanotte or anyone else, except for me probably.

[Benny Baker]

I heard on the news that because this law has "economic" threat to UND it falls under the SBoHE not the legislature.

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.

[darell1976]

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.

I thought 3 is a majority out of 5 not 4?

http://www.ndcourts.gov/court/court.htm

Justice VandeWalle-UND

Justice Sandstrom- UND

Justice Muehlen-UND

Justice Kapsner-U of Colorado

Justice Crothers-UND

[The Sicatoka]

I believe it's 4 of 5 to overturn (declare unconstitutional) a state law.

[ScottM]

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.

I think the difference is there is an open conflict between the Board's actions, e.g., the settlement agreeement and attendant moniker removal, and the legislation that was passed last summer. If there was no such conflict, I think the Board would have a harder time with its case. In the event of a conflict, especially if they use an economic argument, they will probably have a better shot

[darell1976]

I believe it's 4 of 5 to overturn (declare unconstitutional) a state law.

http://www.grandforksherald.com/event/article/id/229350/

It would take an affirmative vote by at least four of the Supreme Court’s five members to declare the legislative act unconstitutional.

You guys are right.

[Goon]

I don't agree with Rob Port on about 99% of what he says but he's no more of a gas bag than McFraud down in Fargo or Leigh Jeanotte or anyone else, except for me probably.

I was reading this post, is McFraud = McFooley?

[Benny Baker]

I think the difference is there is an open conflict between the Board's actions, e.g., the settlement agreeement and attendant moniker removal, and the legislation that was passed last summer. If there was no such conflict, I think the Board would have a harder time with its case. In the event of a conflict, especially if they use an economic argument, they will probably have a better shot

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

[The Sicatoka]

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?

Choosing Path A or Path B in the settlement is not violation of the settlement as long as the one who chose the path had the power to make the choice.

[CAS4127]

So, here is someting to ponder, and perhaps make you do a couple of these . Say the law currently in effect (Carlson's Law) because of the petition is ruled unconstitutional. Suppose also that the repeal vote fails. That results in the repeal bill being the law (if the repeal vote prevails we have no law on the subject). Well, the repeal bill tells UND that it can't implement a new nickname for 3 years (cooling off period is what they described it as). When I saw that, I thought it was just a smoke-and-mirror thing to allow UND additional time to see if it couldn't get approval from SR. Also, at the time the repeal bill was passed, SR had initiated its lawsuit against the NCAA, or at least had indicated it was going to do so. One has to wonder what will happen in that three years, don't ya??!! Also, the repeal law is directing--or telling if you will--UND what it can and can't do for 3 years. Does that not also violate the constitution? We will have to see whether the ND Supreme Court writes a broad opinion, or whether it will be tailored specifically to Carlson's law. Either way, the SBoHE and or UND may end up having to challenge the repeal law if UND wants to impliment a new nickname sooner than 3 years. You see, the ND Supreme Court technically can not address specifically a law (the repeal law) that is not in effect.

Now, if Carlson's law is found unconstitutional, perhaps people want to vote "Yes" on the repeal petition ballot question. That way, there will be no law on the books directing UND to do anything with the nickname, and UND would be free to implement a new nickname at any time.

The above is how I analyze things anyway . . . . . . . .

[gfhockey]

You are absolutley right CAS. Thats how i am viewing stuff too. I think it would probably take 1 year cooling off period anyways after the sioux name and then prolly they will have to set up a comittee im sure which will take some time then allow students/staff/fighting sioux club members to vote on it.

Either way its going to take at least a year or two to find a new name even if the 3 year rule does get unconstitutional

[Benny Baker]

Choosing Path A or Path B in the settlement is not violation of the settlement as long as the one who chose the path had the power to make the choice.

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.

[The Sicatoka]

So, here is someting to ponder, and perhaps make you do a couple of these . Say the law currently in effect (Carlson's Law) because of the petition is ruled unconstitutional. Suppose also that the repeal vote fails. That results in the repeal bill being the law (if the repeal vote prevails we have no law on the subject). Well, the repeal bill tells UND that it can't implement a new nickname for 3 years (cooling off period is what they described it as). When I saw that, I thought it was just a smoke-and-mirror thing to allow UND additional time to see if it couldn't get approval from SR. Also, at the time the repeal bill was passed, SR had initiated its lawsuit against the NCAA, or at least had indicated it was going to do so. One has to wonder what will happen in that three years, don't ya??!! Also, the repeal law is directing--or telling if you will--UND what it can and can't do for 3 years. Does that not also violate the constitution? We will have to see whether the ND Supreme Court writes a broad opinion, or whether it will be tailored specifically to Carlson's law. Either way, the SBoHE and or UND may end up having to challenge the repeal law if UND wants to impliment a new nickname sooner than 3 years. You see, the ND Supreme Court technically can not address specifically a law (the repeal law) that is not in effect.

Now, if Carlson's law is found unconstitutional, perhaps people want to vote "Yes" on the repeal petition ballot question. That way, there will be no law on the books directing UND to do anything with the nickname, and UND would be free to implement a new nickname at any time.

The above is how I analyze things anyway . . . . . . . .

I would hope in challenging the constitutionality of Carlson's Folly the SBoHE would also challenge the constitutionality of the law repealing it. If the Legislature didn't have the power to make the first law (Carlson's Folly) surely they didn't have the power to make the second law (repeal of Carlson's Folly and the "cooling off" requirement).

[Benny Baker]

So, here is someting to ponder, and perhaps make you do a couple of these . Say the law currently in effect (Carlson's Law) because of the petition is ruled unconstitutional. Suppose also that the repeal vote fails. That results in the repeal bill being the law (if the repeal vote prevails we have no law on the subject). Well, the repeal bill tells UND that it can't implement a new nickname for 3 years (cooling off period is what they described it as). When I saw that, I thought it was just a smoke-and-mirror thing to allow UND additional time to see if it couldn't get approval from SR. Also, at the time the repeal bill was passed, SR had initiated its lawsuit against the NCAA, or at least had indicated it was going to do so. One has to wonder what will happen in that three years, don't ya??!! Also, the repeal law is directing--or telling if you will--UND what it can and can't do for 3 years. Does that not also violate the constitution? We will have to see whether the ND Supreme Court writes a broad opinion, or whether it will be tailored specifically to Carlson's law. Either way, the SBoHE and or UND may end up having to challenge the repeal law if UND wants to impliment a new nickname sooner than 3 years. You see, the ND Supreme Court technically can not address specifically a law (the repeal law) that is not in effect.

Now, if Carlson's law is found unconstitutional, perhaps people want to vote "Yes" on the repeal petition ballot question. That way, there will be no law on the books directing UND to do anything with the nickname, and UND would be free to implement a new nickname at any time.

The above is how I analyze things anyway . . . . . . . .

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.

[darell1976]

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.

After reading CAS's post I was thinking the same thing. Carlson's law if found consitutional IMO voids any legislation associated with it why repeal a law that doesn't exist. So I would think UND is free to choose a nickname within ANY given time frame and with the loss of $$$ with no nickname and just the ND logo I would think the SBoHE would tell UND take your time on choosing a name but not too long.

[The Sicatoka]

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 question. But wouldn't the SBoHE and UND be in the best position to do a cost comparison analysis between "no logo" and its impact versus "on NCAA sanctions"? Surely the Supreme Court wouldn't try to do such an analysis.

[CAS4127]

At the posts above concerning Carlson/Repeal Law. What sucks is that all of this makes the end result, whatever it ends up being, seem quite far away!! Having this issue overwith would be good for all involved, regardless of the ultimate outcome IMO>

[darell1976]

At the posts above concerning Carlson/Repeal Law. What sucks is that all of this makes the end result, whatever it ends up being, seem quite far away!! Having this issue overwith would be good for all involved, regardless of the ultimate outcome IMO>

Wouldn't it have made more sense to have the supreme court rule on this back in April after Carlson's law came in effect instead of almost 1 year, and 17,000 signatures later.

[The Sicatoka]

I'm guessing the SBoHE didn't challenge Carlson's Folly as the time it was passed because the Legislature was voting on budgets and expenditures at the time.

[Matt]

Wouldn't it have made more sense to have the supreme court rule on this back in April after Carlson's law came in effect instead of almost 1 year, and 17,000 signatures later.

They must be asked to review a case.

[darell1976]

I'm guessing the SBoHE didn't challenge Carlson's Folly as the time it was passed because the Legislature was voting on budgets and expenditures at the time.

This is more important than budgets and expenditures....UND's athletic future was at stake.

[Benny Baker]

Good question. But wouldn't the SBoHE and UND be in the best position to do a cost comparison analysis between "no logo" and its impact versus "on NCAA sanctions"? Surely the Supreme Court wouldn't try to do such an analysis.

Agreed. The concern I see the Court raising is to what extent is the the Court now going to have to act as the arbiter for every law that may lessen the economic interests of a university. I just see this argument as opening up an unnecessary can of worms and future litigation.

To make matters worse, what happens if the Court says power over the nickname belongs to the legislature, but the Sioux nickname controvery (and therefore the legislation, itself) constitutionally infringes on the SBHE's authority to ensure efficient and economic administration of UND. What do we do about a nickname then? I trust our Justices won't put us in this situation, however.

[UND92,96]

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...ntAgreement.pdf

I would not characterize the quoted section as giving UND a "choice". I believe it's merely describing what would happen if UND breached the Agreement, which of course is what Carlson's statute caused UND to do. Which brings us back to Art. I, Sec. 18 again...

[CAS4127]

IMO, if the ND Supreme Court decides Carlson's law is unconstitutional, they will write a relatively simple opinion in order to avoid many of the issues being discussed-->sort of an "outcome determatative" ruling. But, who effin knows given what we have seen to date from most involved . . . . . . . . .