North Dakota State Board of Higher Education v. Jaeger , 2012 N.D. LEXIS 64 ( 2012 )

VANDE WALLE, Chief Justice.

[¶ 1] 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.

[¶ 2] The North Dakota Attorney General, representing the State Board of Higher Education, petitioned this Court to exercise its original jurisdictional and enjoin Secretary of State A1 Jaeger from placing on the June 2012 primary election ballot a referendum measure to reject 2011 N.D. Sess. Laws ch. 580 (“Senate Bill 2370”). The submission of the referendum measure to the Secretary of State reinstated N.D.C.C. § 15-10-46, which requires UND to use the “Fighting Sioux” nickname and logo for its intercollegiate athletic teams. The Board asks this Court to invoke either its mandatory original jurisdiction under N.D. Const, art. VIII, §§ 6 and 7, or its discretionary original jurisdiction under N.D. Const, art. VI, § 2, to declare that N.D.C.C. § 15-10-46 unconstitutionally infringes on the Board’s authority for the control and administration of UND and to enjoin the Secretary of State from placing the referendum measure on the June 2012 primary election ballot. Under N.D. Const, art. VI, § 4, this Court “shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.” As we stated above, although a majority of this Court would exercise its discretionary original jurisdiction and consider the underlying constitutional issue about the Board’s authority over UND, two members of this Court have concluded this is not an appropriate case to exercise its discretionary original jurisdiction. As a result, there are not enough members of this Court willing to decide the constitutional issue at this time. We therefore do not address the constitutional issue, and we decline to enjoin the Secretary of State from placing the referendum measure on the June 2012 primary election ballot.

I

[¶ 3] In Davidson v. State, 2010 ND 68, ¶¶ 2-7, 781 N.W.2d 72, we described the background for the Board’s involvement with UND’s use and retirement of the “Fighting Sioux” nickname and logo for its intercollegiate athletic teams. In Davidson, at ¶¶ 20-21, we construed a settlement agreement in litigation by the Board and UND against the National Collegiate Athletic Association (“NCAA”), and we held the agreement permitted the Board to end UND’s use of the nickname and logo before November 30, 2010.

[¶ 4] During the 2011 regular legislative session, the legislature enacted 2011 N.D. Sess. Laws ch. 118, § 1, which was codified at N.D.C.C. § 15-10-46 effective August 1, 2011, and required UND to use the “Fighting Sioux” nickname and logo for its intercollegiate athletic teams:

The intercollegiate athletic teams sponsored by the university of North Dakota shall be known as the university of North Dakota fighting Sioux. Neither the university of North Dakota nor the state board of higher education may take any action to discontinue the use of the fighting Sioux nickname or the fighting Sioux logo in use on January 1, 2011. Any actions taken by the state board of higher education and the university of North Dakota before the effective date of this Act to discontinue the use of the fighting Sioux nickname and logo are preempted by this Act. If the national collegiate athletic association takes any action to penalize the university of North Dakota for using the fighting Sioux nickname or logo, the attorney general shall consider filing a federal antitrust claim against that association.

[¶ 5] During the 2011 special legislative session, the legislature enacted Senate Bill 2370, which repealed N.D.C.C. § 15-10-46, effective December 1, 2011. Senate Bill 2370 also provided that neither the Board nor UND may adopt or implement an athletic nickname or corresponding logo before January 1, 2015.

[¶ 6] On December 13, 2011, the Secretary of State approved a referendum petition for circulation to the North Dakota voters to reject Senate Bill 2370. On February 7, 2012,-the Sponsoring Committee submitted the referendum petition, with apparent sufficient valid signatures to place the referendum petition on the June 2012 primary election ballot, to the Secretary of State. Under N.D. Const, art. Ill, § 5, the submission of the petition to the Secretary of State suspended the enactment of S.B. 2370, which effectively reinstated the requirement in N.D.C.C. § 15-10-46 that UND use the “Fighting Sioux” nickname and logo for its intercollegiate athletic teams.

[¶ 7] On February 17, 2012, the Attorney General, on behalf of the Board, petitioned this Court to exercise its original jurisdiction and enjoin the Secretary of State from placing the referendum petition on the June 2012 primary election ballot. On our own motion, we added the Sponsoring Committee for the referendum petition as a party to this proceeding, and we subsequently granted the Legislative Assembly’s motion to intervene. On March 13, 2012, the Secretary of State certified the referendum petition for placement on the June 2012 primary election ballot. On March 15, 2012, we heard oral argument on the Attorney General’s petition on behalf of the Board.

II

[¶ 8] The Board argues this Court has mandatory original jurisdiction under N.D. Const, art. Ill, §§ 6 and 7 to review decisions by the Secretary of State regarding initiative and referendum petitions. The Board alternatively argues that if this Court lacks mandatory original jurisdiction to review referendum decisions by the Secretary of State, this Court should exercise its discretionary original jurisdiction under N.D. Const, art. VI, § 2.

[¶ 9] The Secretary of State, the Sponsoring Committee, and the Legislative Assembly respond that the Secretary of State has a limited ministerial role when reviewing petitions for a referred measure. They assert if the petitions are proper in form and contain the requisite number of valid signatures, the Secretary of State must place the measure on the ballot without considering the substance or determining the constitutionality of the referred measure. The Sponsoring Committee and the Legislative Assembly argue the constitutionality of N.D.C.C. § 15-10-46 is not ripe for review before the voters have an opportunity to vote on the referendum measure. The Legislative Assembly also argues the specific language in N.D. Const, art. Ill, §§ 6 and 7 controls the general language for this Court’s discretionary original jurisdiction in N.D. Const, art. VI, § 2.

[¶ 10] This Court generally reviews decisions by the Secretary of State regarding referendum petitions under the mandatory self-executing provisions of N.D. Const, art. III, §§ 6 and 7. See Husebye v. Jaeger, 534 N.W.2d 811, 813 (N.D. 1995); Municipal Servs. Corp. v. Kusler, 490 N.W.2d 700, 701-02 (N.D.1992). Un der those provisions, the Secretary of State’s responsibilities are limited to the form and the sufficiency of the petition. N.D. Const, art III, §§ 2 and 6. See also N.D.C.C. §§ 16.1-01-09 and 16.1-01-10. We have described those limited responsibilities as ministerial in nature. Haugland v. Meier, 335 N.W.2d 809, 811 (N.D.1983); McCarney v. Meier, 286 N.W.2d 780, 783 (N.D.1979). The Secretary of State’s lim ited responsibilities under those mandatory constitutional provisions do not include the authority to review the substance or constitutionality of the measure. Municipal Servs., 490 N.W.2d at 705-06; Preckel v. Byrne, 62 N.D. 634, 642-43, 244 N.W. 781, 784-85 (1932); Anderson v. Byrne, 62 N.D. 218, 228-32, 242 N.W. 687, 691-93 (1932). See also State ex rel. Gammons v. Shafer, 63 N.D. 128, 142-15, 246 N.W. 874, 879-80 (1933) (holding provision of voter-approved initiated measure at issue in Preckel unconstitutional in subsequent appeal in mandamus proceeding).

[¶ 11] Under N.D. Const, art. VI, § 2, this Court also has discretionary authority to exercise original jurisdiction to issue remedial writs as may be necessary to properly exercise its jurisdiction. RE-CALLND v. Jaeger, 2010 ND 250, ¶ 7, 792 N.W.2d 511; Bolinske v. Jaeger, 2008 ND 180, ¶ 4, 756 N.W.2d 336; Kelsh v. Jaeger, 2002 ND 53, ¶ 2, 641 N.W.2d 100; State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 384 (N.D.1992); State ex rel. Wefald v. Meier, 347 N.W.2d 562, 564 (N.D.1984). Under that constitutional provision, we determine in the first instance whether or not a proceeding is within our original jurisdiction. State ex rel. Wefald, at 564. In State ex rel. Wefald, at 564, we outlined the parameters for our discretionary exercise of original jurisdiction:

It is well settled that the power of this court to issue writs in the exercise of its original jurisdiction extends only to those cases in which the question presented is publici juris, wherein the sovereignty of the State, the franchises or prerogatives of the State, or the liberties of its people are affected. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979). To warrant the exercise of this court’s original jurisdiction, the interests of the State must be primary, not incidental, and the public, the community at large, must have an interest or right which may be affected. State ex rel. Vogel v. Garaas, 261 N.W.2d 914, 916 (N.D.1978).

[¶ 12] In State ex rel. Wefald, 347 N.W.2d at 564-65, we exercised our discretionary original jurisdiction in a dispute between two public officials — the Attorney General and the Secretary of State — regarding each entity’s authority for preparation of a ballot statement for a referendum. We explained:

Involved here is the process of referendum whereby the people, through the exercise of their right to vote, determine the laws under which they will be governed. Few matters encompass more public interest than this process which reserves unto the people the power to govern themselves. See Dawson v. Tobin, 74 N.D. 713, 24 N.W.2d 737 (1946). This dispute encompasses an important and fundamental step in the referendum process. We conclude, therefore, that this is a matter of public interest which warrants our exercise of original jurisdiction.

State ex rel. Wefald, at 564.

[¶ 13] Although this Court is required by the constitution to review decisions by the Secretary of State regarding the form and sufficiency for placement of referendum measures on an election ballot, we conclude those mandatory provisions for original jurisdiction do not apply to this case because the Board does not assert the Secretary of State has improperly performed the ministerial functions regarding the form and sufficiency of the referendum petition. Under the circumstances in this case, however, we conclude it is appropriate to exercise our discretionary original jurisdiction under N.D. Const, art. VI, § 2.

[¶ 14] We have recognized “[t]he right to initiate and refer laws is part of the fabric of our liberty as North Dakotans [and t]he people of North Dakota— through the state constitution — have reserved to themselves this check on the legislative process.” Thompson v. Jaeger, 2010 ND 174, ¶ 1, 788 N.W.2d 586. We have also recognized “the Legislative Assembly and the people are in effect coordinate legislative bodies with coextensive legislative power; a law enacted by one has no superior position as a rule of conduct over one enacted by the other; a law enacted by one is subject to the same rules of construction and the same tests of constitutionality as one enacted by the other.” State v. Houge, 67 N.D. 251, 258, 271 N.W. 677, 680 (1937). When the people act in their legislative capacity through an initiated or a referendum measure, they can no more transgress the constitution than can the legislature. Id. at 259, 271 N.W. at 680.

[¶ 15] The Board is a constitutional body within the executive branch of government. Nord v. Guy, 141 N.W.2d 395, 402 (N.D.1966). The Attorney General’s petition on behalf of the Board and the responses in this proceeding raise legal issues regarding the Board’s constitutional authority over UND juxtaposed against the legislature’s authority regarding institutions of higher education and the peoples’ authority to refer legislation as a coequal and coordinate legislative entity. These issues raise questions about the allocation of power among the legislature, the people, and the Board. The interests of the governmental entities and the people reflect an indisputable tension involving the limits of each entity’s constitutional authority. See Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 294 (N.D.1995) (explaining that system of separate but equal branches of government with its checks and balances sometimes needs fine tuning when there is disruptive disharmony between the branches).

[¶ 16] In the context of proceedings involving this Court’s mandatory original jurisdiction, we have said the Secretary of State may not pass on the substance or constitutionality of an underlying proposed initiated or referred measure, or the ramifications of the measure. See Municipal Servs., 490 N.W.2d at 702, 705-06; Preckel, 62 N.D. at 642-43, 244 N.W. at 784-85; Anderson, 62 N.D. at 228-32, 242 N.W. at 691-93. However, we have previously exercised our discretionary original jurisdiction to address constitutional ramifications of referendum measures. State ex rel. Walker v. Link, 232 N.W.2d 823, 824-25 (N.D.1975). See also State ex rel. Wefald, 347 N.W.2d at 564 (exercising discretionary original jurisdiction to resolve referendum dispute between Attorney General and Secretary of State). In State ex rel. Walker, at 824-25, after the Attorney General was asked to secure a writ of certiora-ri and refused, a private citizen petitioned this Court to exercise its discretionary original jurisdiction in a dispute involving a referendum petition for the legislative appropriation for UND. This Court explained the questions raised in the private citizen’s application involved the sovereignty and prerogatives of the State and warranted this Court’s exercise of discretion to hear and decide issues involving the referral of the legislative appropriation for UND. Id. at 825. This Court held “[n]either the Legislature nor the people can, without a constitutional amendment, refuse to fund a constitutionally mandated function.” Id. at 826. Although State ex rel. Walker did not involve a writ directed to the Secretary of State, the effect of this Court’s decision precluded the Secretary of State from placing an unconstitutional referendum measure on the election ballot. See 1977 N.D. Sess. Laws ch. 595 (citing Attorney General Opinion that as result of State ex rel. Walker and State ex rel. Askew v. Meier, 231 N.W.2d 821 (N.D.1975), a vote on the referred measure would be ineffective to accomplish any practical legal result and referred measure was not placed on ballot). See also 1975 N.D. Op. Att’y Gen. 75-50 from Attorney General Allen I. Olson to Secretary of State Ben Meier. This Court’s discretionary original jurisdiction for issues involving referendum petitions is not precluded by this Court’s mandatory jurisdiction to review the Secretary of State’s decisions under N.D. Const, art. III. See State ex rel. Wefald, 347 N.W.2d at 564-65; State ex rel. Walker, 232 N.W.2d at 825.

[¶ 17] This proceeding does not involve a petition by a private citizen to exercise our discretionary original jurisdiction. Rather, the Attorney General, on behalf of the Board, has petitioned this Court to exercise our discretionary original jurisdiction and issue a writ prohibiting another governmental official, the Secretary of State, from placing a referendum measure on the 2012 primary election ballot. The Attorney General is the principal law officer of the state with duties and authorities coextensive with the public legal affairs of the whole community. McCue v. Equity Co-op. Pub. Co., 39 N.D. 190, 204, 167 N.W. 225, 230 (1918). The Legislative Assembly has also intervened in this proceeding. The Attorney General’s petition, brought on behalf of the Board against the Secretary of State, and the posture of the issues raised in this proceeding raise fundamental questions involving the prerogatives of the State and the sovereign rights of its people, which are of statewide interest and go to core issues involving the limits of governmental authority in the context of the Board’s authority to decide the name and logo for UND’s intercollegiate athletic teams. The Attorney General, on behalf of the Board, in effect seeks a declaration on the constitutionality of N.D.C.C. § 15-10-46. The Secretary of State has now approved the referendum petition for placement on the June 2012 primary election ballot. Here, unlike the proposed initiated measures at issue in Municipal Servs., 490 N.W.2d at 705-06; Preckel, 62 N.D. at 642-43, 244 N.W. at 784-85; and Anderson, 62 N.D. at 228-32, 242 N.W. at 691-93, the immediate effect of the submission of the referendum petition has suspended the operation of Senate Bill 2370, which reinstates N.D.C.C. § 15-10-46 as law and presents a justiciable issue sufficient to warrant the exercise of our discretionary original jurisdiction. See State ex rel. Wefald, 347 N.W.2d at 564-65.

[¶ 18] A majority of this Court concludes the posture of the issues raised in this proceeding satisfy the requirements for the exercise of its discretionary original jurisdiction under State ex rel. Wefald, at 564-65 and State ex rel. Walker, 232 N.W.2d at 825. Under N.D. Const, art. VI, § 4, however, this Court “shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.” Although a majority of this Court would exercise its discretionary original jurisdiction and consider the underlying constitutional issue about the Board’s authority over UND, two members of this Court have concluded this is not an appropriate case to exercise its discretionary original jurisdiction. As a result, there are not enough members of this Court willing to decide the constitutional issue at this time.

[¶ 19] We therefore do not address the constitutional issue, and we decline to enjoin the Secretary of State from placing the referendum measure on the June 2012 primary election ballot.

[¶ 20] DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur.