Lead Opinion
[¶ 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
I
[¶ 3] In Davidson v. State,
[¶ 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-
[¶ 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,
[¶ 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-
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,
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,
[¶ 15] The Board is a constitutional body within the executive branch of government. Nord v. Guy,
[¶ 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.,
[¶ 17] This proceeding does not involve a petition by a private citizen to exercise our discretionary original jurisdic
[¶ 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,
[¶ 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.
Concurrence Opinion
concurring in the result.
[¶ 21] I concur in the result denying the injunctive relief requested. I believe it is improper, under the circumstances, to take this matter from the voters of North Dakota. Nowhere in the submissions to this Court has any party suggested the Secretary of State has failed to properly perform his constitutional duties to refer a legislative measure to the voters of North Dakota. There is no basis asserted by any party to invoke the mandatory original jurisdiction of this Court.
[¶ 22] The State Board of Higher Education asks us to exercise our discretionary jurisdiction because by referring legisla
[¶ 23] The Legislative Assembly of North Dakota enacted House Bill 1263, which provided:
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.
The bill was signed by the Governor on March 15, 2011, and filed with the Secretary of State on March 15, 2011. This bill was codified as N.D.C.C. § 15-10-46. It became effective August 1, 2011. It is the underlying statute and is not the subject of the referendum.
[¶ 24] Rather, in special session the Legislative Assembly enacted Senate Bill 2370, which provides:
SECTION 1. UNIVERSITY OF NORTH DAKOTA ATHLETIC NICKNAME AND LOGO. Neither the state board of higher education nor the university of North Dakota may adopt or implement an athletic nickname or corresponding logo before January 1, 2015.
SECTION 2. REPEAL. Section 15-10-46 of the North Dakota Century Code is repealed.
SECTION 3. EFFECTIVE DATE. This Act becomes effective on December 1, 2011.
The Governor signed the bill on November 9, 2011. Senate Bill 2370 is the legislation that is referred to the voters.
[¶ 25] The chief concern for the exercise of our original jurisdiction under N.D. Const, art. Ill, §§ 6, 7, is that the Secretary of State properly perform the function of certifying petitions to refer legislation to the voters of North Dakota. RECALLND v. Jaeger,
[¶26] The Board asks us to take the matter from the voters on its assertion that a statute enacted by the Legislative Assembly, and subsequently repealed, is unconstitutional. Article III of the North Dakota Constitution articulates the powers reserved to the people. Section 1 of Article III provides: “the people reserve the power ... to approve or reject legislative Acts, or parts thereof, by the referendum .... This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers.” The decisions of this Court have acknowledged the importance of these reserved constitutional powers. “[W]e are guided by the principle that referendum provisions in the constitution must be liberally construed, and any doubt should be resolved in favor of the exercise of this right by the people.” Husebye,
[¶ 27] When the voters exercise their vote, they too will be acting in a legislative capacity. Hernett v. Meier,
Under this constitutional provision [initiative and referendum provision of previous constitution], 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 ex rel. Eckroth v. Barge,
[¶ 28] If the voters would exercise their vote in the manner the Board appears to fear, then the issue of whether N.D.C.C. § 15-10-46 is unconstitutional can be adjudicated. However, this Court has indicated that asserting a statute is unconstitutional is not alone sufficient for this Court to take original discretionary jurisdiction. Mun. Servs. Carp.,
[¶ 29] In Municipal Services Corp., this Court was similarly asked to exercise original jurisdiction to determine the constitutionality of a statute, but declined on the basis the matter was not ripe for review because the voters had not acted.
[¶ 30] In Anderson,
[¶ 31] Construing the referendum powers under the similar provisions of the prior North Dakota Constitution, as it applied to a repealer statute, this Court noted that our state constitution does not restrict the power of the people when dealing with a repealer statute, because to do so would hamper, restrict, or impair those powers:
This language is clear and specific. The scope of the power of the referendum as here stated is as broad as the power of the legislature to enact laws. It is stated specifically and emphatically that the people “reserve the power ... to approve or reject at the polls any measure or any item, section, part or parts of any measure enacted by the legislature.” The language used clearly evidences an intention and purpose that no enactment by the legislature and no part of any enactment by the legislature is excepted or withdrawn from the operation of the power of the referendum. Nothing is said in the constitutional amendment which in any manner limits the purpose and scope of the power of the referendum as thus first clearly and specifically declared. Indeed, there is no contention that anything said in the constitution limits the power of the referendum or prevents it from being invoked against any measure enacted by the legislature and against any and every part of any measure enacted by the legislature.
Dawson v. Tobin,
[¶ 32] This matter is distinctly unlike State ex rel. Wefald v. Meier, where recognizing the high importance of the people’s referendum power, this Court acted to facilitate the exercise of that power by settling a dispute as to the form of the ballot.
It is clear from our review of the constitutional provisions and our prior cases that the referendum is the means by which the legislative power is reserved by the people. It is a part of the legislative process which is not complete until the time for filing referral petitions has passed, or the measure has been either rejected or approved by the voters at an election having the referred measure on the ballot.
Id.
[¶ 33] It is not insignificant that the Attorney General, on behalf of the Board, seeks a declaration that N.D.C.C. § 15-10-46 is unconstitutional, but neither is it determinative. In Langer v. State,
The debates of the Constitutional Convention leave no doubt that it was the deliberate judgment of the framers of the State Constitution that Judges of the Supreme Court, as part of their official duties, should not be required, or authorized, to give advisory opinions. So, in this State, it is not a matter of choice whether the Judges of the Su*225 preme Court shall, or shall not, give advisory opinions.
[¶ 34] Similarly, in State ex rel. Aamoth v. Sathre,
a constitutionally created legislative body that acts under powers conferred upon it by Section 35 of the North Dakota Constitution as a part of the independent, coordinate legislative branch of the State government, and that it has not yet completed its work but still is acting in the process of discharging the legislative duties imposed on it by such constitutional provision.
Aamoth,
This court has heretofore held that it is no part of the judicial function to interfere with the constitutional processes of legislation, and that it will not entertain a suit to test the constitutionality of a proposed act of the Legislature on the ground that, if such act is enacted, it will interfere with the constitutional rights of the litigant.
Id. at 230. See also Wefald,
[¶ 35] The Board argues the issue of the statute’s constitutionality is not advisory because even though N.D.C.C. § 15-10-46 was repealed by the Legislative Assembly, it was revived by operation of N.D. Const, art. Ill, § 5, when the referendum petition was submitted. That is true, but only with certainty until the vote on the referred measure. “An initiated or referred measure which is approved shall become law thirty days after the election, and a referred measure which is rejected shall be void immediately.” N.D. Const, art. Ill, § 8. Therefore, any determination this Court makes on the constitutionality of N.D.C.C. § 15-10-46, will be an advisory opinion on the people’s vote.
[¶ 36] This Court has exercised its jurisdiction where the constitutional authority of the people to act did not exist. RECALLND,
[¶ 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.
[¶ 38] I concur in denying the injunc-tive relief requested.
[¶ 39] Carol Ronning Kapsner
Concurrence Opinion
concurring in the result.
[¶ 40] I agree this is not a proper case for exercising the Court’s mandatory original jurisdiction. I also agree with the majority’s result of denying the Board’s requested relief. However, on the latter issue, we arrive at our common conclusion by significantly different means.
[¶ 41] The Board has petitioned for exercise of this Court’s mandatory original jurisdiction under N.D. Const, art. Ill, §§ 6 and 7. The majority holds we should not, and I agree. Majority Opinion at ¶ 13.
[¶ 48] We exercise our discretionary original jurisdiction in limited circumstances. This Court has stated,
“Under N.D. Const, art. VI, § 2, this Court has authority to exercise original jurisdiction and to issue remedial writs necessary to properly exercise its jurisdiction. The power vested in this Court to issue original writs is discretionary and may not be invoked as a matter of right. It is well-settled that our power to exercise original jurisdiction extends only to those cases in which the questions presented are publici juris and affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people. To warrant the exercise of this Court’s original jurisdiction, the interest of the state must be primary, not incidental, and the public — the community at large — must have an interest or right that may be affected.”
Kelsh v. Jaeger,
[¶ 44] The Board argues in its brief and the Sponsoring Committee argues throughout that UND’s potential continuing use of the “Fighting Sioux” nickname and logo is a matter of important public concern warranting our intervention. I neither doubt nor ignore the Board’s claim that continuing controversy over the nickname and logo may be affecting the University’s “educational environment and reputation, as well as the financial viability of its sports program.” Nor do I discount the Sponsoring Committee’s earnest beliefs and efforts behind seeking to keep the nickname and logo. However, the Board’s concerns about future consequences of the legislation fall short of meeting the legal threshold before this Court can act. So too, the Committee’s concerns about preserving the nickname and logo fail to clear the bar. That threshold requires a question “affect[ing] the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people” before our discretionary jurisdiction can be exercised. Kelsh,
[¶ 45] Perhaps recognizing the logo and nickname controversy would not meet the legal threshold for this Court’s intervention, the Board opened oral argument stating, “The issue before the Court today is not whether UND’s current nickname and logo should continue. The issue is who has the constitutional authority to make that determination.” In turn, the majority correctly explains this Court has exercised discretionary original jurisdiction in prior separation of governmental powers disputes. Majority Opinion at ¶¶ 15-16. However, I find no case where this Court has enjoined the Secretary of State from placing a referred or an initiated measure on the ballot under the circumstances present in this case. I submit we should not do so now.
[¶ 46] Historically, this Court has been selective of the type of eases accepted in the exercise of original jurisdiction. In 1956, former North Dakota Supreme Court Chief Justice Burke wrote the following:
“The Supreme Court has always assumed jurisdiction of controversies concerning the title to a state office. It has accepted jurisdiction in matters concerning the right of a candidate to have his name printed upon the ballot in statewide elections. Among other controversies within the original jurisdiction are*227 those concerning the right of franchise, the right of state officers to their pay, and the jurisdictional foundation of the orders of state boards and commissions.
“Some of the controversies which the Court has refused to accept are those concerning the title to an office in a political party, those concerning the division of a county, the matter of the change of location of a county seat, taxpayers’ actions, and questions concerning the discharge of the employees of a public board.”
Thomas J. Burke, The Prerogative Jurisdiction of the Supreme Court, 32 N.D. L.Rev. 199, 204 (1956) (footnotes omitted).
[¶ 47] This Court generally has continued on the path described by Chief Justice Burke, more recently exercising discretionary original jurisdiction in a conflict between constitutional offices. See State ex rel. Link v. Olson,
[¶ 48] . Viewed from a distance, these citations show we have exercised discretionary original jurisdiction in disputes with general attributes similar to those in this case. However, a closer reading of our case law reveals that we have declined to intervene in the situations most similar to those here. See Municipal Servs. Corp. v. Kusler,
[¶49] Rather than follow Municipal Servs. Corp., Preckel and Anderson, the majority would reach a different conclusion. The majority’s position warrants a more in-depth consideration of several cases relied on by it or the parties.
[¶ 50] The first is State ex rel. Walker v. Link,
[¶ 51] Walker is different from the present case for a host of reasons. Several important ones include that Walker addressed only the question whether funding of a constitutionally mandated function could be suspended on the filing of referral petitions. That question went to the constitutionality of the referral process itself. Here, no such challenge exists because no one is suggesting repeal of N.D.C.C. § 15-10 — 46 is constitutionally impermissible. In addition, the relief requested in Walker was to enjoin the Emergency Commission. Neither the office of the Secretary of State nor the Secretary’s placement of the referral on the ballot were at issue. Walker therefore provides no guidance on answering the question whether this Court should halt a ballot listing when the statute targeted by referral is alleged to be unconstitutional but the referral process itself is not being attacked.
[¶ 52] The second case warranting further consideration is RECALLND v. Jaeger,
[¶ 58] The issue in RECALLND was whether the Secretary of State should be ordered to approve a petition to recall a United States Senator.
[¶ 54] The third case is State ex rel. Askew v. Meier,
[¶ 55] Reading these and our other original jurisdiction cases together, I conclude the Court’s intervention at this time would be unprecedented. Intervention now also would be ill-advised because of the important competing and conflicting interests between the Board’s and the Legislature’s separation of constitutional powers on the one hand and the right of the people to refer legislation on the other. Therefore, although due to far different reasons, I agree with the result reached by the majority in dismissing the petition without prejudice to the ability to revisit the question if it is not rendered moot by voting on the referred measure in June 2012.
[¶ 56] Daniel J. Crothers