|University of North Dakota Fighting Sioux athletic logo (Photo credit: Wikipedia)|
ND Courts ---- The Justices signing this majority opinion would exercise this Court's discretionary original jurisdiction and decide now the constitutionality of the legislative enactment requiring the University of North Dakota ("UND") to use the "Fighting Sioux" nickname and logo. We conclude the question of the constitutional authority of the Board of Higher Education, in contrast to the constitutional authority of the legislature, is properly before this Court and is ready to be decided. Those Justices writing separately, however, conclude the issue is not properly before this Court at this time, is not ready to be decided and they will not decide the issue at this time. The necessary number of Justices required to decide the merits is lacking and for this reason we must deny the application of the State Board of Higher Education.This ruling by the North Dakota Supreme Court puts UND in a precarious situation with the Big Sky Conference. Of course this is a little breathing room after Montana put themselves in the cross hairs with their on campus scandal where they fired the Athletic Director and the head football coach.
Edit: Justice Carol Ronning Kapsner ruled that there is no matter of urgency at this time, if there was the State Board of Higher Education would have filed in court last year after the Fighting Sioux nickname law was passed in March of 2011.
[¶37] It is clear that the constitutionality of N.D.C.C. § 15-10-46, the statute asserted to be a problem, is not a matter of urgency. If it were so, the Board would have challenged its constitutionality, as it could have done, immediately upon its signature by the Governor on March 15, 2011, one year ago, or any time thereafter. The fact that it did not do so until now indicates this is not a matter of urgency.