What Needs to Happen

[82SiouxGuy]

rep berg has pissed off a lot of people and prolly wont be getting re elected

Berg isn't running for re-election. He is running for US Senate.

[Goon]

rep berg has pissed off a lot of people and prolly wont be getting re elected

That's not even close to being true.

[82SiouxGuy]

That's not even close to being true.

There is absolutely no way that he is going to be re-elected. He's running for a different office.

[bincitysioux]

Berg is a lock for the Senate.

[petey23]

Berg is a lock for the Senate.

Doubt it. Berg is one of the very few Republicans that I haven't voted for. Not going to pull the lever for Heidi either, so I guess my Senate vote is a wash.

[Benny Baker]

So if the Supreme Court finds the law unconstitutional because of the contract clause what happens with the unconstitutional repeal law? The repeal law places a moratorium on a new nickname for three years while the holy grail settlement agreement mandates that “UND will announce that its Athletic Department will transition to a new nickname and logo which do not violate the Policy or rend UND subject to the Policy.”

In order to fix this, which way will we waste more of the public’s money: new constitutional lawsuit or a special legislative session? Anyone know of any other way the state could ensure that UND is in compliance with settlement agreement? Or perhaps the SBHE could adopt a new interim nickname come August . . . and then break the law shortly after crying foul on the legislature.

Even if the Court strikes down the pro-nickname law and the public still votes (the vote wouldn’t even happen anyway) “no” to keep the repeal law, we’re back at square one: we need a nickname in order to comply the settlement agreement. The same settlement agreement over which the SBHE plans to sue to ensure that very same level of compliance.

I’m sure the Supreme Court will enjoy making this ruling.

[bincitysioux]

I'm not going to get too in depth about it, because this forum is not for political talk, but IMO there are no candidates that realtistcally threaten Rick Berg's run for senator..............

Just like there was nobody that were realistic threats to the re-election of Dorgan, Conrad, or Pomeroy for many many years..................

[The Sicatoka]

So if the Supreme Court finds the law unconstitutional because of the contract clause what happens with the unconstitutional repeal law? The repeal law places a moratorium on a new nickname for three years while the holy grail settlement agreement mandates that “UND will announce that its Athletic Department will transition to a new nickname and logo which do not violate the Policy or rend UND subject to the Policy.”

In order to fix this, which way will we waste more of the public’s money: new constitutional lawsuit or a special legislative session? Anyone know of any other way the state could ensure that UND is in compliance with settlement agreement? Or perhaps the SBHE could adopt a new interim nickname come August . . . and then break the law shortly after crying foul on the legislature.

Even if the Court strikes down the pro-nickname law and the public still votes (the vote wouldn’t even happen anyway) “no” to keep the repeal law, we’re back at square one: we need a nickname in order to comply the settlement agreement. The same settlement agreement over which the SBHE plans to sue to ensure that very same level of compliance.

I’m sure the Supreme Court will enjoy making this ruling.

My hope is the AG presents both Carlson's Folly and the law repealing it as both being unconstitutional and both to be voided by the NDSC.

[Benny Baker]

My hope is the AG presents both Carlson's Folly and the law repealing it as both being unconstitutional and both to be voided by the NDSC.

How do you propose that UND comply with the settlement agreement? According to its terms, UND needs to adopt a new nickname and logo, otherwise the state is in breach.

[bincitysioux]

How do you propose that UND comply with the settlement agreement? According to its terms, UND needs to adopt a new nickname and logo, otherwise the state is in breach.

The logo is the interlocking ND. The name is North Dakota..............

[Benny Baker]

The logo is the interlocking ND. The name is North Dakota..............

Can't, we'll have a repeal law on the books, which forbids adoption of any new nickname. The settlement agreement is explicit: "if UND does not adopt a new nickname . . . then UND will be returned to the list of institutions subject to the policy."

[bincitysioux]

Can't, we'll have a repeal law on the books, which forbids adoption of any new nickname. The settlement agreement is explicit: "if UND does not adopt a new nickname . . . then UND will be returned to the list of institutions subject to the policy."

UND was not subject to sanctions over the last two months while using the interlocking ND and the vanilla North Dakota reference.................

[Benny Baker]

My hope is the AG presents both Carlson's Folly and the law repealing it as both being unconstitutional and both to be voided by the NDSC.

Can't. The repeal law is no longer a law. Who on Earth has standing to challenge the constitutionality of an idea, which is no longer the law? The'y have to wait til June.

[Benny Baker]

UND was not subject to sanctions over the last two months while using the interlocking ND and the vanilla North Dakota reference.................

Funny how that works. SBHE will use tax power money to righteously enforce the very same settlement agreement that they have no intention of following.

[bincitysioux]

Funny how that works. SBHE will use tax power money to righteously enforce the very same settlement agreement that they have no intention of following.

They were following the settlement up until Carlson's Folly. Then they were in breach of the settlement. When Carlson's Folly was repealed, the State Board again was in compliance with the settlement. Now that Carlson's Folly is once again in place, the State Board is once again in breach of the settlement with the NCAA.

To put it simply, the State Board has never voluntarily breached the contractual agreements put forth in the NCAA settlement. The state legislature has, however.

It is misguided at best to say that the SBoHE did not have intentions of meeting the requirements of the settlement agreement.

[82SiouxGuy]

Funny how that works. SBHE will use tax power money to righteously enforce the very same settlement agreement that they have no intention of following.

The NCAA has also said that they would work with UND if they were making a good faith effort to live up to the settlement agreement and eliminating the Native American nickname and logo. There has been no official statement, but perhaps they have indicated that they would be OK with delaying the adoption of a new nickname and logo. As someone else said, all indications were that UND had been removed from the sanctions list after the law was repealed in November. Therefore there could have been some kind of understanding with the NCAA.

[Benny Baker]

They were following the settlement up until Carlson's Folly. Then they were in breach of the settlement. When Carlson's Folly was repealed, the State Board again was in compliance with the settlement. Now that Carlson's Folly is once again in place, the State Board is once again in breach of the settlement with the NCAA.

To put it simply, the State Board has never voluntarily breached the contractual agreements put forth in the NCAA settlement. The state legislature has, however.

You're not understanding. In order to comply with the explicit terms of the settlement, UND needs to "adopt a new nickname." The absence of a nickname is a per se violation of the settlement agreement. SBHE is a named party, the legislature is not; therefore, SBHE is in breach. However, whether it be the legislature or SBHE, it is a distinction without a difference.

[Benny Baker]

The NCAA has also said that they would work with UND if they were making a good faith effort to live up to the settlement agreement and eliminating the Native American nickname and logo. There has been no official statement, but perhaps they have indicated that they would be OK with delaying the adoption of a new nickname and logo. As someone else said, all indications were that UND had been removed from the sanctions list after the law was repealed in November. Therefore there could have been some kind of understanding with the NCAA.

Good to know. Makes sense. But I just didn't think it was possible after so many people have said that the NCAA has taken a hard stance and won't back off the settlement agreement and sanctions under any circumstances. But I guess it is true that the NCAA is not 100% committed to enforcing the terms of the settlement agreement, either.

[82SiouxGuy]

Good to know. Makes sense. But I just didn't think it was possible after so many people have said that the NCAA has taken a hard stance and won't back off the settlement agreement and sanctions under any circumstances. But I guess it is true that the NCAA is not 100% committed to enforcing the terms of the settlement agreement, either.

They have said that they would not back off the use of Native American nicknames. Remember, the NCAA also said that they might be willing to review the removal of logos from Ralph Engelstad Arena and might be willing to change the timeline outlined in the agreement. They say they are trying to encourage schools to follow the policy, not damage the schools that are making an effort.

But I believe that the interlocking ND logo may still work for the NCAA, while not breaking the 3 year moratorium on adopting and implementing a logo that was put into the repeal law. The interlocking ND has been used for years, and was modified a couple of years ago. It has nothing to do with Native American culture in any way. It was not part of the settlement agreement. UND using that logo exclusively, and not using the Brien logo would live up to the the NCAA policy and the spirit of the settlement agreement even if it didn't live up to the letter of the agreement. And it wouldn't break the law on adopting and implementing a logo, because it would just be using something that was in place well before the law was enacted. It has been the secondary logo of the Athletic Department, and has been the primary logo for some of the sports. UND still wouldn't have a nickname as required by the settlement agreement, but as I said, the NCAA may give them some leeway in that process.

[bincitysioux]

You're not understanding. In order to comply with the explicit terms of the settlement, UND needs to "adopt a new nickname." The absence of a nickname is a per se violation of the settlement agreement. SBHE is a named party, the legislature is not; therefore, SBHE is in breach. However, whether it be the legislature or SBHE, it is a distinction without a difference.

You are not understanding.

Prior to the filing of the petition, UND was NOT in violation of the terms of the agreement. They were not under sanctions, and were within good standing with the NCAA, the Big Sky conference and all other parties (including the Universities of Minnesota, Wisconsin, and Iowa; which most of us are intersted in associating with). They were in full compliance with the settlement. The logo was the interlocking ND, and the name was North Dakota.

After the petitions were filed, the state of North Dakota is now presumably in breach of contract, since we are now required by state law to be referred to as the Fighting Sioux.

The SBoHE itself is not in breach of contract. The legislature authorized the SBoHE to pursue legal action against the NCAA on behalf of the the State of North Dakota.

[The Sicatoka]

If the original law, Carlson's Folly, is deemed unconstitutional, would it not seem that ruling would also make the repeal law of Carlson's Folly unconstitutional also?

If the NDSC finds the Legislature had no business making monikers because they have no power over monikers, that would seem to apply to making, unmaking, and not making, wouldn't it?

President Kelley had already answered the logo and nickname questions: the logo is the interlocked ND and the nickname is "UND" or "North Dakota" for the time being. (Remember: the NCAA views schools by formal name, in this case the University of North Dakota, so either UND or North Dakota works as a "nickname".)

[Benny Baker]

They were in full compliance with the settlement. The logo was the interlocking ND, and the name was North Dakota.

I know I'm probably a bad teacher, but you are rather helpless. I know that none of the parties were choosing to enforce the settlement, but lack of enforcement does not mean compliance. Look at the plain language of the statute and settlement. If UND does not adopt a "new nickname" then they are supposed to continue with sanctions under the settlement. The repeal bill prohibited the adoption of a "new nickname" and logo. You cannot reconcile the two. One cannot both follow the law, which prevents the school from adopting a new nickname, and follow the terms of the settlement, which requires adoption of a "new" nickname.

Whether the parties you listed choose to abide by the settlement, well that's another story. But it does go to show that the NCAA is not truly wound up in the specific terms of the settlement.

These are all facts. I'm sorry, but I can't help you any longer and you're unable to appreciate these facts.

[Benny Baker]

If the original law, Carlson's Folly, is deemed unconstitutional, would it not seem that ruling would also make the repeal law of Carlson's Folly unconstitutional also?

If the NDSC finds the Legislature had no business making monikers because they have no power over monikers, that would seem to apply to making, unmaking, and not making, wouldn't it?

President Kelley had already answered the logo and nickname questions: the logo is the interlocked ND and the nickname is "UND" or "North Dakota" for the time being. (Remember: the NCAA views schools by formal name, in this case the University of North Dakota, so either UND or North Dakota works as a "nickname".)

I'll definitely take your word for it regarding President Kelly, the interlocking ND, etc., but it's a fact that this breaks the repeal law, which prohibits the adoption and use of any nickname for three years. The settlement agreement specifically requires UND to adopt a new nickname. UND can't comply with both at the same time. Either they break the law and adopt a new nickname or follow the law and breach the settlement.

As for the constitutional questions, are you saying it's unconstitutional now because of a separation of powers issue or because of the contracts clause? If the latter, than I see what you mean. Everyone seems sure that the SBHE will win on the contract clause. I honestly do not see how they win on a separation of powers issue. The Supreme Court has said multiple times that the SBHE is an administrative body of the executive branch with no legislative power. The Supreme Court has found legislation unconstitutional where the legislature delegates lawmaking power to the SBHE. When it was created, the SBHE adopted all the powers of the Board of Administration. The Board of Administration did not have control over or change UND's nickname to the "Fighting Sioux" in 1930, so history even shows that "moniker" authority does not lie with the SBHE. Two years ago, Justice Kapsner wrote a dissent saying the SBHE has absolutely no legislature power and that the SBHE's constitutional authority it limited by statute. Nickname proponents only need one more justice.

I think the contracts clause is a better argument. Still doubt they will win because the Supreme Court has already said that there is no longer a contract between the parties. The legal status of the settlement agreement is now a court judgment. The Supreme Court says they will enforce it as a court judgment. There has never been a Court in the United States, of which I am aware, that has found a law to violate the contract clause when it infringes on a court judgment. Secondly, I still think UND is complying with the judgment: "If UND does not adopt a new nickname or logo . . . they will be returned to the list of institutions subject to the policy."

[homer]

I know I'm probably a bad teacher, but you are rather helpless. I know that none of the parties were choosing to enforce the settlement, but lack of enforcement does not mean compliance. Look at the plain language of the statute and settlement. If UND does not adopt a "new nickname" then they are supposed to continue with sanctions under the settlement. The repeal bill prohibited the adoption of a "new nickname" and logo. You cannot reconcile the two. One cannot both follow the law, which prevents the school from adopting a new nickname, and follow the terms of the settlement, which requires adoption of a "new" nickname.

Whether the parties you listed choose to abide by the settlement, well that's another story. But it does go to show that the NCAA is not truly wound up in the specific terms of the settlement.

These are all facts. I'm sorry, but I can't help you any longer and you're unable to appreciate these facts.

Your questioning Carlson's law that he himself said it is ok to break as there is no punishment for doing so?

[GeauxSioux]

I'll definitely take your word for it regarding President Kelly, the interlocking ND, etc., but it's a fact that this breaks the repeal law, which prohibits the adoption and use of any nickname for three years. The settlement agreement specifically requires UND to adopt a new nickname. UND can't comply with both at the same time. Either they break the law and adopt a new nickname or follow the law and breach the settlement.

As for the constitutional questions, are you saying it's unconstitutional now because of a separation of powers issue or because of the contracts clause? If the latter, than I see what you mean. Everyone seems sure that the SBHE will win on the contract clause. I honestly do not see how they win on a separation of powers issue. The Supreme Court has said multiple times that the SBHE is an administrative body of the executive branch with no legislative power. The Supreme Court has found legislation unconstitutional where the legislature delegates lawmaking power to the SBHE. When it was created, the SBHE adopted all the powers of the Board of Administration. The Board of Administration did not have control over or change UND's nickname to the "Fighting Sioux" in 1930, so history even shows that "moniker" authority does not lie with the SBHE. Two years ago, Justice Kapsner wrote a dissent saying the SBHE has absolutely no legislature power and that the SBHE's constitutional authority it limited by statute. Nickname proponents only need one more justice.

I think the contracts clause is a better argument. Still doubt they will win because the Supreme Court has already said that there is no longer a contract between the parties. The legal status of the settlement agreement is now a court judgment. The Supreme Court says they will enforce it as a court judgment. There has never been a Court in the United States, of which I am aware, that has found a law to violate the contract clause when it infringes on a court judgment. Secondly, I still think UND is complying with the judgment: "If UND does not adopt a new nickname or logo . . . they will be returned to the list of institutions subject to the policy."

I agree with everything you wrote with the exception of the constitutional authority. According to the ND constitution and the Century Code...

15-10-11. Authority and general powers of board.

The state board of higher education has full authority over the institutions under its control

with the right to prescribe, limit, or modify the courses offered at the several institutions. In

furtherance of its powers, the board has the power to delegate to its employees details of the

administration of the institutions under its control. The board has authority to organize or

reorganize, within constitutional and statutory limitations, the work of each institution under its

control, and to do everything necessary and proper for the efficient and economical

administration thereof.

I started this thread with the opinion that the SBoHE has control over this issue, not the legislature. I still believe that.