Update 1:34 p.m. Nov. 10, 2009: I’m waiting for a response from the State Board of Higher Education, which hasn’t yet received the restraining order. A spokeswoman said no one there could comment until they’ve seen the order.
I’ve been getting some criticism of the complaint on this blog and by e-mail that I somewhat anticipated last night, but was too tired to really think them through. Here’s what I had:
- Who gets to be the Sioux people? Shouldn’t the tribal government do the suing and not nickname supporters who are just private individuals? The complaint says all Sioux people have this right because all Sioux people are potential beneficiaries of the nickname.
- The settlement doesn’t say UND, and the SBHE by extension, must keep the nickname. It just says if it has the nickname it has to be with the approval of the tribes. So the nickname might belong to the tribes, but the decision to use it or not is up to UND and the SBHE. Does that sound right?
On the other hand, if one were to read the settlement as not only giving UND the time to win tribal approval, but giving the tribes time to come to an agreement amongst themselves, it does make sense that those pushing for that agreement to happen would sue for more time.
This afternoon, I got an e-mail from a reader who sounds like he is a lawyer or has some legal training:
- How was this restraining order justified? Usually one of the factors involved in a restraining order, as my reader wrote, is some argument that the plaintiffs are likely to succeed in a lawsuit. (I have a copy of the legal brief seeking the restraining order, which I’ll talk about shortly.)
- My reader seems particularly annoyed that the plaintiff’s attorney, Pat Morley, decided to file an ex parte petition. Ex parte is Latin for "from one party" and it means the judge began legal proceedings without notifying the other party, in this case, the SBHE. The SBHE spokeswoman said she hadn’t heard of this restraining order until she read my story. Wikipedia says ex parte orders are "severely limited" by the Fifth and Fourteenth Amendments, which both guarantee due process of law.
My reader quotes the state Century Code, section 32-06-07:
32-06-07. Restraining orders – When issued. A restraining order, or an order to show cause in the nature of a restraining order, will not be issued ex parte or without a hearing, unless it shall be shown in the moving papers that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved.
What’s the exigency? He asks.
An exigency is a situation that is "critical" or "urgent," according to my Webster’s. In this case, the exigency seems to be that the SBHE will retire the nickname Nov. 19, which might mean it wouldn’t revisit the issue ever again. The petition cites some Herald stories, which sound like my stories, discussing the potential for the SBHE to retire the nickname.
Here’s some relevant excerpts from the brief supporting the petition for a temporary restraining order:
This litigation seeks to specifically enforce the terms of the settlement agreement providing for the Approval Period remain open until November 30, 2010. Defendant in this action seeks to unilaterally shorten the Approval Period by approximately one year, in violation of the settlement agreement. Defendant in this action also seeks to impose a thirty year written agreement requirement with the Spirit Lake Tribe and Standing Rock Sioux Tribe, which is not a part of the settlement agreement….
Plaintiffs seek an ex parte temporary restraining order prohibiting the State Board of Higher Education ("SBHE") from ordering UND to "retire" the nickname and logo before November 30, 2010 or further order of this court.
The purpose of a temporary restraining order is to maintain the status quo until a determination can be made on the temporary injunction issue. Gunsch v. Gunsch, 69 N.W.2d 739 (N.D. 1955)….
It is only necessary for the petitioner to make a prima facie showing entitling it to a temporary restraining order. Amerada Hess Corporation v. Furlong Oil, 336 N.W.2d 129, 132 (N.D. 1983).
A prima facie case has been defined as:
We have defined a prima facie case in this way: "The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case."
Hawley v. LaRocque, 689 N.W.2d 386 (N.D. 2004).
A restraining order may be issued ex parte:
A restraining order, or an order to show cause in the nature of a restraining order, may be issued ex parte without a hearing if the moving papers show "…that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved." Section 32-06-07,NDCC.
Amerada Hess Corporation, Id. at 132.
The granting of a temporary restraining order does not create any right of its own, but merely protects the rights of the complainant by maintaining the status quo until such time as the show cause hearing on the temporary injunction can be held. Id.
Attached hereto is an article printed on November 3, 2009 in the Grand Forks Herald in which the nickname and logo issued before the SBHE were discussed. The article indicates that the SBHE may "retire" the nickname and logo at its November 19, 2009 meeting, one year and one-half month before the deadline it agreed to in the settlement agreement….
According to news accounts, if the SBHE orders UND to retire the nickname and logo, it is unlikely it will revisit the issue, even if the Standing Rock Sioux Tribe approves its continued use.
Plaintiffs will suffer irreparable harm if the nickname and logo are retired unilaterally by the State of North Dakota before the deadline of November 30, 2010 set forth in the settlement agreement. As third party beneficiaries of the settlement agreement contract, Plaintiffs are entitled to specifically enforce its terms….
Plaintiffs do not seek monetary damages. They only seek that the court order the SBHE to abide by the settlement agreement it entered into with the NCAA. Defendant will not sustain any monetary damages if the temporary restraining order is granted. A hearing can be held at which time evidence can be taken before any significant passage of time. Plaintiffs seek only to preserve the status quo until this litigation can be heard.
The City Beat has a theory about the Fighting Sioux nickname: We’re all characters in some sort of TV show and the writers like to end each episode with a bang. How else to explain the roller coaster that this issue has been on in the last several months? How else to explain why this is the issue that will never end, despite every appearance that it will?
Now, with weeks to go before a State Board of Higher Education meeting where the board appears as if it would be compelled by its own rhetoric to retire the nickname, a judge says the board can’t retire the nickname until a hearing on the matter.
Let me recount the ups and downs that I’ve seen since getting on the
nickname UND beat.
- Jan. 15, 2009: The SBHE meets and is supposed to have formed a "high-level committee" to look into the nickname. No high-level player steps forward. See the buildup? Who would be on the committee? A senator? The governor? The attorney general? NOPE. As a side plot, there was some sort of disagreement between the SBHE and Gov. John Hoeven about whether Hoeven would put a representative on the board.
- April 21, 2009: The Spirit Lake Dakotah Nation approves the nickname with 67 percent of the vote. That’s HUGE. The build up involved nickname supporters gathering signatures. Will they get enough? Will the Tribal Council accept the signatures?
As a side plot, there was that accusation by nickname opponents that Ralph Engelstad, the evil emperor behind every nickname plot, had used a very horrible racial epithet against Indians. There was no proof and it faded away.
Another side plot is that "high-level committee," which met once on Feb. 26, 2009, and never met again. It’s like the writers of the show decided the idea just didn’t work out as they’d hope so they’ll just pretend it hadn’t happened.
- May 15, 2009: The SBHE meets and decides to set a deadline of Oct. 1, 2009, contrary to the settlement between UND and the NCAA, which sets a deadline of Nov. 30, 2010. This is not that long after Spirit Lake affirmed support for the nickname and supporters thought there was plenty of time to get Standing Rock on board. Shocking, right?
The side plot is the hold up on UND’s application to join the Summit Leage athletic conference. The league refuses to consider the application until the nickname issue is settled. I realize it is a big deal, but in the narrative of the nickname it hasn’t had much impact. Why? The league commissioner won’t return reporters’ phone calls and it’s just plain hard to figure out why the league’s taken the position it has. Individual schools in the league have played UND as if it’s no big deal.
- Sept. 18, 2009: The Spirit Lake Tribal Council votes to give UND "perpetual" use of the nickname. Not 10 years, not 30 years, not 50 years, but forever and ever, 10-times-infinity years. This follows the 67 percent "yes" vote in April.
The side plot is the Standing Rock nickname supporters’ efforts to get a referendum. They keep talking about doing it, but progress is slow. Will they? Won’t they? Who knows?
Another side plot is the election at Standing Rock. Charles W. Murphy, who said he’d allow a referendum, wins the chairmanship, giving much hope to nickname supporters. Of course, he doesn’t get to vote so it’s not clear what his support means.
Yet another side plot is the approaching constantly moving deadline imposed by the SBHE. It was Oct. 1. Then it was Oct. 31 and maybe Nov. 30 if progress is made at Standing Rock by Oct. 31. Progress isn’t quite made since Chairman Murphy said he won’t work under a deadline. But the SBHE doesn’t require UND to retire the nickname right away. Instead, it won’t consider the nickname until a regular meeting Nov. 19, which effectively extends the deadline from Oct. 31 to Nov. 19. Then Chancellor Bill Goetz asks to meet with Murphy,
probably to win some concession so the SBHE can extend its deadline yet again. (Oops, too snarky.)
- Nov. 9, 2009: Spirit Lake nickname supporters got their attorney to get a judge to force the SBHE to keep the nickname until at least Dec. 9. The supporters are suing the state for unilaterally reneging on the NCAA settlement, which they see themselves as being a party to. The nickname, it’s argued, belong to the Sioux people and the SBHE is just a trustee while the Sioux people decide the nickname’s fate. So the SBHE can’t willy-nilly decide to get rid of the nickname, at least under the terms of the settlement.
For now, the side plot is what’s going on at Standing Rock, since nothing’s going on as far as we know. But if something does happen, then it could eventually be another episode-ending shocker.
As I’ve said before, I think the season’s not going to end until Nov. 30, 2010, regardless of what the SBHE says. The show’s getting too hot to be canceled!