Carlson: Legislature will fight higher ed board at N.D. Supreme Court over nickname law
February 14, 2012 at 9:44 am in Grand Forks Herald
The law is constitutional and the North Dakota Legislature will defend it if the State Board of Higher Education challenges it in the state Supreme Court, House Majority Leader Al Carlson of Fargo said today. Continue Reading
Oh wow! And I accused Ralph of hubris.
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And Always took me to task for pushing for his recall WHY?
I have a hard time believing he actually believes his baby will pass constitutional muster.
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You have got to be kidding me. Who keeps re-electing this tool?
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Represents a district pack with Republicans. Turn it around and its how Eliot Glassheim gets elected every term in GF.
Hot debate. What do you think?
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Al Carlson, Rep. From FARGO graduate of NDSU wrote an unconstitutional law, now wants to continue the UND nickname fight, how stupid does he think we are?
When Carlson was asked by the Herald, almost a year ago, why he wrote the law, he said he didn’t know why he did it. How stupid do we think he is? Pretty darn stupid and arrogant to boot.
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The NDSU Grads in Fargo, ND.
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Can you imagine if Carlson invested 1/100 of the resources he utilizes on the Sioux nickname for actual Sioux humans?
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Which reminds me of my favorite Al Carlson quote: When asked during the 2010 campaign how much door to door campaigning that he had done, “I only had to do that the first time that I ran”. (God forbid he actually meet constituents!)
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Al Carlson….now there’s your problem.
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Recall folks. Where do I sign a petition with meaning? I would move back to ND just to vote in that election.
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Ha me too!
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OK. Keep the name, face sanctions. Several other universities will not schedule to play teams under sanction. With no post season games played in GF there goes the MONEY. The other option is to stick to your guns and leave the NCAA. There is no requirement to be in it. Then Al can start his own National Carlson Athletic Conference. Salvation is at hand.
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How often have we said that leaving the NCAA is the only honorable way to keep the name. Unfortunately Always, et al want to have it there way and only there way. We cannot recall Always, but we can this nutjob. I do believe it is tme.
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LOL. Could that be because he botched the lawsuit so badly?
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Always, a legal aid kid from the law school could win this suit. This is not rocket science, since the Supreme Court has already decided this exact same issue once before.
Carlson is a joke. I swear every time i see him or hear him speak I see and hear Sara Palin.
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Mato:
I bow to your expertise on this issue. I realize you have spent a lot of time and energy studying and lobbying for it.
I think you are missing the point. The issue at hand is does the SBHE have legal authority over the name. This has nothing to do with SR, SL, or any of the other combatants in this sad,sad saga.
The legal question is narrow, and the Supreme Court did say that the SBHE is in charge of the name.
What is amusing is Carlson is exactly the reason why control of the university system was taken away from the legislature and given to the SBHE. Now could the SBHE do with a little reforming of its own? That is a question for another day.
On this very narrow question, which is the only thing the Supreme Court is being asked to decide, I think the answer is clear; regardless of how many press conferences Mr. Carlson gives to vent his spleen.
Recall Carlson: It makes a body (the ND Senate) feel good.
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Flying I was going to stay off this site because it makes me sick at the name calling regardless of which side of the issue you are on. It should be beneath all of us. You make the point that control was removed from the legislators but I am going off Loyd Omdal when he said it was removed from the Governor. Who removed it from the Governor? Just how and when and by whom was the State Board elevated to a forth Branch and when? If your right I may be wrong. Fill me in if you know. Reasonable questions deserve reasonable answers. Thank you.
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Or, again, his hubris is so great he will try to save face at any cost.
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I don’t know ND law, but can one legislator make this happen? It seems that hiring an expensive attorney would take more than one guy. Anybody out there know?
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Can’t answer your question on that, but I think Carlson suffers from Earl Strinden Syndrome. A guy who gets elected by a few thousand voters, rises to power in the state legislature, and comes to believe he is Oedipus Rex. That nothing is beyond his ability to control.
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If his ellow legislators wish to stop him they can. The question is do they want anything to do with this mess. My guess is no. This is a purely emotional argument, so reason will Always take a back seat (pun intended).
Each legislator only has so much political capital. Are they willing to spend it on this purely ancillary issue? That is the question.
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As SuperMajority Leader he gets to do pretty much what he wants to do. He broke the House rules and told Democrats where to sit the last session. He broke tradition and didn’t let Democrats on the Legislative Management chair itnerim committees and that’s just a couple of examples of how he bullies people.
You could fight him on it. What would happen is there would be a vote. You’d have to hope that a significant number of Republicans would vote against him.
Note that this is the man that decides what committee you serve on and so on. So buck him too much, and you won’t be a chairman of a committee. Buck him and you just might find you are on the new Committee to remove dog droppings from the State Capital lawn.
When Carlson put in his bill on the Fighting Sioux, he was already, due to his position guaranteed many of the votes from Republicans in the House. It was everything but guaranteed to pass the House when it hit the basket. Two other similar bills by others were dropped in favor of his.
So it passed the House as it was going to do.
The only question was the Senate. Carlson has less, but still has power even over Senators during the interim. Plus, he and Senator Stenehjem were really two of a feather. When Senate Democrats refused to sit where they were told, Stenehjem stopped the seating ceremony, called all the Republicans into his office, came out and actually changed the rule through a vote and then restarted the ceremony.
The two of them made it clear, right from day one that they were in charge and everyone else was pretty much just there for show.
Normally, there would be enough Democrats in one or both houses that there would be a chance to make coalitions with Republicans to somewhat control leadership from getting out of line. But, the supermajorities in both were so large that bucking the leadership was probably just a way to cut your throat and so under most people’s radar, we’ve had one of the great power shifts in ND history.
The UND Fighting Sioux is just the most public of many such things that has happened.
It’s unfortunate, that people really can’t vote Republican without endorsing Carlson and giving him the power to continue down this path. More and more bills require spending to include his endorsement or oversight during the interim. More and more power is going to legislative management. He’s been working pretty hard to make sure that those outside the legislature learn to fear him the same as those inside.
It will be interesting to see how he makes higher ed pay for this insult to his ego of challenging his law. He will publically act like it’s no big deal and talk about how the legislature has to defend it’s role in government, but underneath, he will be working on revenge and it has to be just public enough that those close in government get the message without being a public spectacle.
Carlson holds the purse strings, and his grip is strong, backed by a big supermajority. Carlson protected his seat through redistricting giving a district so Republican they even keep electing Betty Grande. Who, despite not really belonging in the legislature is even rewarded with a charimanship because she does what Carlson wants.
Carlson runs ND and the State Board of Higher Education is going to find out that fact.
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Excellent post. Carlson will eventually end up like Strinden: a grouchy old man no one listens to anymore.
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this was worth the time to read….great informative interesting post
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Of Iran.
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It doesn’t really matter whether support was there or not. What Carlson failed to do before submitting the bill was to research its constitutionality. I’m convinced that at the time he was planning a run for the announced open seat in DC, but needed the name recognition this bill would give him. This immense lack of foresight, in the name of political advantage, says a great deal about him.
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Completely faulty logic. Doing the popular thing and doing the right thingare often not the same. We elect our representatives to do the right thing. You couldn’t be more wrong on this one.
Hot debate. What do you think?
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Mato:
The SBHE was given power over the university system long before this latest incarnation of the cartoon network. They were given the authority because the legislature could not keep themselves from playing politics.
Enter Senior Carlson. The reason they did it way back when. They did not have Carlson in mind specifically, they just knew there would always be someone like him.
They were right.
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I’m not sure what time period you are referring to here. If it was post-settlement, it was all moot. As the macinations after that were just that: machinations. The NCAA had the legal document in hand.
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Mato:
Whenever I read stuff from your side I get the feeling you actually believe that UND and the SBHE secretly want to keep the cartoon and advertising gimmick. They do not.
They have wanted to get rid of this distraction for a very long time. Ralph put a $110 million speed bump in the way, but it was just that. Had Ralph not been building, the name would have been gone then. Despite the speed bump, plans have been underway to get rid of the nickname as long as I have been around, and that is 10 years now.
UND does not want the name. Every student election since at least 2002 has said the same thing: get rid of it. Every Faculty Council election since 2002 has said the same thing: bye bye.
There is no secret cabal of nickname supporters outside of the hockey stands. Sorry my friend. When you keep hoping that someone within the bureaucracy will rise up and champion the name, they won’t. Outside of the athletic program I just don’t think there are many who want to keep it.
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Subject: North Dakota repeal section 15-10-46 of North Dakota Century Code (Repeal of UND fighting Sioux nickname and logo)
Sixty-second Legislative Assembly of North Dakota
In Special Session Commencing Monday, November 7, 2011
SENATE BILL NO. 2370
(Senators Laffen, Schaible, O’Connell)
(Representatives Anderson, Dahl, Kreun)
(Approved by the Delayed Bills Committee)
AN ACT relating to adoption of a nickname and logo for the university of North Dakota athletic teams; to
repeal section 15-10-46 of the North Dakota Century Code, relating to the university of North
Dakota fighting Sioux nickname and logo; and to provide an effective date.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
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.
S. B. NO. 2370 – PAGE 2
____________________________ ____________________________
President of the Senate Speaker of the House
____________________________ ____________________________
Secretary of the Senate Chief Clerk of the House
This certifies that the within bill originated in the Senate of the Sixty-second Legislative Assembly of
North Dakota and is known on the records of that body as Senate Bill No. 2370.
Senate Vote: Yeas 39 Nays 7 Absent 1
House Vote: Yeas 63 Nays 31 Absent 0
____________________________
Secretary of the Senate
Received by the Governor at ________M. on _____________________________________, 2011.
Approved at ________M. on __________________________________________________, 2011.
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Sorry but I expect my legislators to work within the limits of the law and the Constitution. If they think they need more than what the Constitution provides, then they need to come to me and explain why I should increase what I already feel is to much power.
Al Carlson may have been doing the ‘Will’ of ‘Some’ people, but he was NOT working within the means or will of established law, or within the Constitutional Boundaries.
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BINGO. Spot on. Well said Mav.
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Well, that’s what many of us have been saying since May. Now we’ll find out. Right or wrong, how can either side have a problem with the constitution prevailing? The SBHE made the right call 8 months too late. In fairness to them, how could they have seen this. This last action by Carlson is jaw-dropping.
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I don’t think they could have foreseen this scenario. If they could, i’d like to talk to them about some powerball numbers.
My complaint with them is that none of the proceeding 8 months would have happened, had they exercised their Constitutional obligations. But then hindsight is 20/20
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Go away clueless al!
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NDSU FANS OWN THIS CLOWN.
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The good news will be that after the ND Supreme Court rules or at the very worst, a state wide vote, we will no long have to suffer Clueless Al’s photo on the front page of the GFH.
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Gene and Alvin – don’t bother trying to respond to mato. He obviously does not understand the meaning of the moratorium if he thinks that it has been violated.
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and until the petitions were submitted UND was just called UND. A new nickname has not been chosen and there been any official movement toward doing so. Therefore the moratorium has been honored to this point.
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Your same comment could be used in most other articles from the other side. Look at every other news piece and see how rude the pro-name people can be. alwayscorrect and a couple of others have called every leader every kind of nasty name. What’s so odd about Carlson’s position is that he’s not speaking for the legislature, who, by a large majority voted to repeal the
June law. Also, he seems to think that only the other two branches of the gov’t are allowed to go to the Supreme Court. Everyone else would be acting like a fourth branch of the gov’t. Have you noticed that nearly every leader stepping up on this issue right now is opposite Carlson. He’s an island. You can disagree, but look at the last 50 articles on this subject. My opinion: most of the people posting here are former nickname supporters. Carlson’s current actions are just bizarre and will serve no purpose. He’s speaking of this as if he’s being suied. It’s testimony to seek an opinion. Nobody’s being sued. The Supreme Court is an option. Why doesn’t both sides want to know their decision? I don’t get it.
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“name and logo e-mails were running 16 to 1 in support of the name and logo. That is just a fact.” Well, then thank you for setting everyone straight.
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Mato:
You are not addressing the issue at hand. No one says the law is not popular. We are saying it is not constitutional.
Most of the Jim Crow laws in the south enjoyed overwhelming support. Most were passed and sustained with veto proof majorities. That did not make them constitutional. That is why we have a constitution.
I will say it again: if you want the name you will have to pass the constitutional amendment (your lawyer says it is the only way and I agree with him).
I will do everything in my power to prevent that from happening. I will give money to whomever opposes you, not because I do not like you, but because you do not put drawings (cartoons, caricatures, logos) and advertising gimmicks (nicknames: “Just Do It”) into the founding documents. They are not holy writ but they are a check on the passions of the moment. They need to be treated with reverence and respect.
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“the vast majority of North Dakotan do not share that opinion and they have every right to their opinion. When the law was past to keep the name and logo e-mails were running 16 to 1 in support of the name and logo.”
I have been asking, for many months, for actual evidence that the majority of the citizens of North Dakota think that the name and logo should maintained. emails to legislators are an indication of what a group of people with email addresses thinks about the name and logo. Nothing more, nothing less. It says nothing at all about a “vast majority of North Dakotans”. My request for actual evidence can be easily obtained. A simple poll, conducted in the last 12 months, with a majority saying that the name and logo should be kept would do very nicely. However, you have no such poll. Therefore, stop claiming to speak for a majority of North Dakotans.
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Al Carlson making a declaration of constitutionality is like my cat chiming in on the proper way to conduct heart surgery.
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“Meow, clamp the artery, meow.”
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e-mails could have been 2,000 to 20 on this issue. For some reason, ND citizens think they should have a vote on everything. You vote a person into office to represent you. The only way he could vote with the majority of his constituents is to have an election on every issue. Senators need to do their homework and vote for our best interests. Sometimes that’s not what the majority wants. 99% of the time, we don’t know what the majority wants. Actually, being swayed by 2,000 phone calls in some cases can be more coward than statesman.
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Teacher: Johnny your spelling word is “buffoon”.
Johnny: A-L C-A-R-L-S-O-N
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8 out of 10 stories on these boards are for this name game nonsense, and several of them are pretty close in content. Apparently someone at the Herald is too lazy to look for articles and just slaps up any article pertaining to the Sioux name because of course…..We just don’t care about anything else…..I’m surprised that so many of the same posters want to continue with the same arguments they’ve been using for all these years on this issue…..It’s been said over and over again……We can cut down to say a limit of three related articles and you’d still get every argument ever posted….
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Give it time. There’ll soon be a whole series of articles scaring people into voting no on Measure 2.
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If Al was adopted in to the Spirit Lake tribe, much like the fictional Jack Crabb (Little Big Man, so named for killing a tribal enemy at the age of 11) was adopted by the Cheyenne, wonder what his Native name would be. To paraphrase, Mr Crabb, “He believed that he needed one more victory to be nominated for Governor of ND. That is a true historical fact. ” “Two Tongues” would be an interesting choice. His motivation is highly questionable. I can see his next campaign slogan: Vote for Two Tongues….you get both sides for the same price!
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I suggest “Dances With Himself.”
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“El Forko Grande Tongue”
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In AZ we have had a dash of political theatre ourselves. The author of SB 1070, Arizona’s controversial (and largely unconstitutional) anti illegal immigration was recalled recently.
What does this have to do with ND? The bill’s author, Russell Pearce was the President of the Arizona State Senate and easily the second or third most powerful politician in the state. Why was he recalled? Did the liberal masses rise up to vote him out? Did illegal aliens picket the state house, riot in the streets, and demand justice?
The answer is NO to all of the above. He was recalled by HIS OWN PARTY. The man who won his senate seat in the recall election was a fellow Republican.
Pearce was ousted because he started believing his own press releases. He not only believed that Arizona was not bound by the US Constitution or SCOTUS precedent, he viewed the 14 amendment (The amendment that states if you are born here you are a citizen among other things) as illegal. His own party ousted him because he had stopped looking at his constituents and instead chose to look in the mirror.
The parallels between him and Uncle Al are too frightening to be a coincidence.
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Recall Uncle Al: It Does A Body Good
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North Dakota has a long history of elected officials going rogue. Read a biography of Wild Bill Langer as an example.
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North Dakota Supreme Court Opinions
Davidson v. State, 2010 ND 68, 781 N.W.2d 72
Filed Apr. 8, 2010
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2010 ND 68
Eunice Davidson, John Chaske, Oliver Gourd, Renita Delorme, Lavonne Alberts, Frank Blackcloud, Demus McDonald, Alex Yanton, Members, Committee for Understanding and Respect, Plaintiffs and Appellants
v.
State of North Dakota, by and through the North Dakota State Board of Higher Education, Defendant and Appellee
No. 20100022
Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
Lolita G. Hartl Romanick (argued), Patrick Robert Morley (on brief), and Bradley John Beehler (on brief), P.O. Box 14519, Grand Forks, N.D. 58208-4519, for plaintiffs and appellants. Douglas Alan Bahr, Solicitor General, Office of Attorney General, 500 North 9th Street, Bismarck, N.D. 58501-4509, for defendant and appellee.
Davidson v. State
No. 20100022
Sandstrom, Justice.
[¶1] Eight members of the Committee for Understanding and Respect (“plaintiffs”) appeal from a district court judgment dismissing their action against the State Board of Higher Education to enforce a settlement agreement in a prior lawsuit by the University of North Dakota (“UND”) and the Board against the National Collegiate Athletic Association (“NCAA”) and to enjoin the Board from shortening the time period for the Spirit Lake Tribe and the Standing Rock Sioux Tribe to consider approving or rejecting UND’s use of the “Fighting Sioux” nickname and logo. Because we conclude the district court did not err in interpreting the language of the settlement agreement, we affirm.
I
[¶2] In August 2005, the NCAA adopted a policy prohibiting member institutions from using or displaying hostile and abusive racial or ethnic nicknames, mascots, or imagery at NCAA championship events. The policy prohibited identified member institutions from bidding and hosting NCAA championship events and from selling nickname, mascot, or imagery related merchandise at NCAA championship venues. The policy also urged member institutions to refrain from scheduling regular season games against institutions identified as subject to the policy. The NCAA identified UND and its Fighting Sioux nickname and logo as a member institution subject to the policy.
[¶3] In October 2006, the Board and UND sued the NCAA, challenging the NCAA’s promulgation of the policy and its application of the policy to UND. In October 2007, the parties to that action executed a settlement agreement in which UND recognized the “North Dakota Sioux Tribes . . . have important contributions in determining whether, to what extent and in what manner the ‘Sioux’ name and the ‘Fighting Sioux’ nickname or logo should continue to be used in conjunction with the athletic tradition at UND.” The Board and UND agreed to dismiss their claims against the NCAA pertaining to the policy, and the NCAA agreed to provide UND “a period of time until November 30, 2010 (the ‘Approval Period’), to seek and obtain namesake approval for its nickname and related imagery, during which time the Policy will not apply to UND and UND will not be restricted from hosting and bidding to host championship events for which it otherwise would be eligible to host.” The settlement agreement required UND to have “clear and affirmative support” for use of the nickname and logo from both the Spirit Lake Tribe and the Standing Rock Sioux Tribe and provided that if UND obtained tribal support within the approval period, the NCAA policy would not apply to UND unless either of the tribes withdrew or reversed its support for UND’s use of the nickname and logo.
[¶4] The settlement agreement required UND to announce the “transition to a new nickname and logo which do not violate the Policy or render UND subject to the Policy, if [i] it is unable to secure namesake approval as set forth in this Agreement prior to the expiration of the Approval Period, or [ii] namesake approval, once provided, is withdrawn.” The agreement said, “If UND does not adopt a new nickname and logo, or if the transition to a new nickname and logo is not completed prior to August 15, 2011, then UND will be returned to the list of institutions subject to the Policy.” The agreement required UND to continue to solicit the views of the North Dakota Sioux Tribes on the appropriate use of the Sioux name and related imagery in UND athletics. The agreement also stated, “If UND announces a transition to a new nickname and logo at the end of the Approval Period, or at anytime during the Approval Period,” the NCAA would remove UND from the list of institutions subject to the NCAA policy and UND would retain any intellectual property or licensing rights to the Fighting Sioux nickname and logo. The agreement required the NCAA to make a public announcement that it did not dispute UND “has indicated that it intends to use the current name and logo with the utmost respect and dignity, and only for so long as it may do so with the support of the Native American community.”
[¶5] In April 2009, the members of the Spirit Lake Tribe voted to allow UND to continue using the Fighting Sioux nickname and logo and the Spirit Lake Tribal Council thereafter adopted a resolution granting UND perpetual use of the nickname and logo beginning on October 1, 2009. In May 2009, the Board passed a resolution to retire the Fighting Sioux nickname and logo, effective October 1, 2009, with full retirement completed on August 1, 2010, unless both the Standing Rock Sioux Tribe and the Spirit Lake Tribe gave namesake approval consistent with the settlement agreement for a period of not less than 30 years. As of October 1, 2009, the Standing Rock Sioux Tribe had not voted either to approve or to disapprove UND’s use of the nickname and logo.
[¶6] The plaintiffs, enrolled members of the Spirit Lake Tribe, thereafter sued the Board, alleging its proposed termination of the Fighting Sioux nickname and logo before November 30, 2010, violated the settlement agreement and seeking to enjoin the Board from terminating the nickname and logo before November 30, 2010. The plaintiffs claimed the settlement agreement precluded termination of the nickname and logo before November 30, 2010, and the Board was contractually bound to make a good-faith effort to obtain namesake approval from both tribes during that time. The district court granted the plaintiffs’ ex parte motion for a temporary restraining order. Before answering the complaint, the Board moved to dismiss the plaintiffs’ action and to vacate the temporary restraining order, arguing the plaintiffs lacked standing to challenge the settlement agreement and the Board had authority to terminate the nickname and logo before November 30, 2010.
[¶7] After a hearing, the district court concluded the plaintiffs had standing to sue the Board. The court nevertheless dismissed the plaintiffs’ complaint to enjoin the Board, concluding the settlement agreement was not ambiguous and the Board’s decision to terminate the nickname and logo before November 30, 2010, did not violate the plain language of the agreement. The court explained there was “nothing in the Settlement Agreement which binds the Board to the continued use of the Fighting Sioux nickname or the pursuit of tribal namesake approval,” and under the agreement, “the NCAA simply agreed that it would not enforce its Policy against UND during the Approval Period in order to allow the Board to make an effort to obtain namesake approval until November 30, 2010 if it so chose.” The court explained there was nothing in the settlement agreement requiring UND to retain the nickname and logo and the language of the agreement contemplated transition to a new nickname and logo “at any time during the Approval Period.” A judgment was entered dismissing the plaintiffs’ complaint, and they appealed.
[¶8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The plaintiffs’ appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶9] The Board argues the district court erred in deciding the plaintiffs have standing to enforce the settlement agreement. The Board claims the plaintiffs do not have standing because they are not parties to the settlement agreement and they are not intended third-party beneficiaries of the agreement. The plaintiffs respond they are third-party beneficiaries of the agreement and they have standing.
[¶10] Under N.D.C.C. § 9-02-04, “[a] contract made expressly for the benefit of a third person may be enforced by that person at any time before the parties thereto rescind it.” See Apache Corp. v. MDU Res. Group, 1999 ND 247, ¶¶ 1, 10-11, 603 N.W.2d 891 (affirming dismissal of plaintiffs’ action because evidence and language of contract did not show parties expressly contracted for benefit of third party). Because the plaintiffs’ status as third-party beneficiaries involves the interpretation of the language of the settlement agreement, we consider the district court’s interpretation of that agreement in conjunction with this issue.
III
[¶11] The Board moved to dismiss the plaintiffs’ complaint before filing an answer. See N.D.R.Civ.P. 56(b) (“party against whom a claim . . . is asserted . . . may move, at any time, with or without supporting affidavits for a summary judgment in the party’s favor”). The district court considered matters outside the pleadings, including video exhibits and testimony, in ruling on the Board’s motion to dismiss and effectively treated the motion as one for summary judgment under N.D.R.Civ.P. 56. See N.D.R.Civ.P. 12(b) (stating if court considers matters outside the pleadings in deciding motion to dismiss for failure to state a claim upon which relief can be granted, motion must be treated as one for summary judgment under N.D.R.Civ.P. 56); Livingood v. Meece, 477 N.W.2d 183, 187 (N.D. 1991) (discussing relationship between N.D.R.Civ.P. 12(b) and N.D.R.Civ.P. 56). Consequently, we review the plaintiffs’ appeal under the standards for summary judgment, which is a procedural device for promptly resolving a controversy on the merits without a trial if there are no disputed issues of material fact and inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172.
[¶12] The plaintiffs argue the plain language of the settlement agreement delegated to the two Indian tribes the ultimate authority to determine usage of the Fighting Sioux nickname and logo. The plaintiffs claim the agreement gave the two tribes an opportunity to approve use of the nickname and logo until November 30, 2010, and the Board’s decision to retire the nickname and logo before November 30, 2010, constitutes a breach of the settlement agreement. The Board counters that the settlement agreement does not require the Board to wait until November 30, 2010, to change UND’s nickname and logo; rather, the Board asserts the agreement provided a grace period to secure tribal approval and does not require UND to continue using the nickname and logo during the approval period, or preclude the Board from exercising its constitutional and statutory authority to terminate use of the nickname and logo before November 30, 2010.
[¶13] The parties have postured their argument as an issue about contractual interpretation. When a settlement agreement is merged into a judgment, however, the agreement is interpreted and enforced as a final judgment and not as a separate contract. Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441; Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199; Sullivan v. Quist, 506 N.W.2d 394, 399-400 (N.D. 1993). Although the actual judgment dismissing the prior action by the Board and UND against the NCAA is not part of the record in this case, the order for judgment of dismissal in that action is part of this record and says that “[e]ach of the claims set forth against [the NCAA] are dismissed with prejudice on the terms set forth in the Settlement Agreement, incorporated herein by reference.” During oral argument to this Court, counsel for the Board stated the settlement agreement in the prior action was incorporated into the judgment in that action, and we interpret the language of the settlement agreement under the rules for interpreting a judgment, which mirror the rules for interpreting a contract. See Slorby v. Slorby, 2009 ND 11, ¶ 6, 760 N.W.2d 89 (district court’s application of rules for interpreting contracts instead of rules for interpreting judgments was harmless because rules for interpreting judgments mirror rules for interpreting contracts); Silbernagel, at ¶ 10 (same).
[¶14] In Sullivan, 506 N.W.2d at 401 (internal citations omitted) (quoting Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 613-14, 44 N.W.2d 417, 427-28 (1950) (on petition for rehearing)), we outlined the general guidelines for interpreting a judgment:
“The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, and this presents a question of law for the court. If the language used in a judgment is ambiguous there is room for construction, but if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” The judgment “should be so construed as to give effect to each and every part of it, and bring all the different parts into harmony as far as this can be done by fair and reasonable interpretation.” “A judgment, plain and unambiguous in its terms, may not be modified, enlarged, restricted, or diminished by reference to the” Findings of Fact.
[¶15] The plaintiffs argue the clear intention of the settlement agreement, when read as a whole, is to give the two tribes a meaningful opportunity to demonstrate “clear and affirmative support” for the Fighting Sioux nickname and logo by precluding the Board from retiring the nickname and logo before November 30, 2010. The plaintiffs argue the Board’s reliance on the phrase “at any time during the Approval Period” is contrary to and repugnant to the contracting parties’ intent when the settlement agreement was executed. The plaintiffs argue that phrase must be read in the context of the entire contract, which establishes a time frame for the two tribes to give approval for use of the nickname and logo until November 30, 2010. They claim no language in the agreement gives the Board authority to retire the nickname and logo before November 30, 2010.
[¶16] The Board responds the settlement agreement does not require the Board to wait until the end of the approval period to change the nickname and logo. The Board claims it did not agree to allow use of the nickname and logo until the end of the approval period and the plaintiffs’ interpretation of the settlement agreement ignores the Board’s constitutional and statutory role as the policymaking entity for North Dakota institutions of higher education. The Board asserts the settlement agreement, when read as a whole, does not strip the Board of its constitutional and statutory authority and allows UND to transition to a new nickname and logo “at any time during the Approval Period.”
[¶17] Under N.D. Const. art. VIII, § 5, all North Dakota land grant universities and universities supported by a public tax shall remain under the absolute and exclusive control of the State. The Board is the constitutionally established entity for the control and administration of state educational institutions, including UND. N.D. Const. art. VIII, § 6(1)(a). See also N.D.C.C. §§ 15-10-11 and 15-10-17. The purpose of the settlement agreement was to end a lawsuit by the Board and UND against the NCAA regarding the NCAA’s promulgation of the policy for displaying hostile and abusive racial or ethnic nicknames, logos, and imagery and the NCAA’s application of that policy to UND. The plain language of the settlement agreement does not restrict the Board’s constitutional and statutory authority to change UND’s nickname and logo, and we agree with the district court that nothing in the plain language of the settlement agreement limits the Board’s constitutional and statutory authority, or requires the Board or UND to continue using the nickname and logo throughout the approval period. Neither does the settlement agreement require the Board and UND to change the nickname and logo. Rather, if UND does not obtain namesake approval from the two tribes, the Board and UND agreed to either change the nickname and logo, or be subjected to the NCAA policy.
[¶18] Under the plain language of the settlement agreement, the NCAA agreed not to apply the nickname policy to UND during the approval period, but the parties agreed the policy would apply to UND if it was unable to obtain namesake approval, or if namesake approval was withdrawn. The language of the settlement agreement provided UND with an approval period, but UND did not agree to continue using the Fighting Sioux nickname and logo throughout the approval period. Rather, the settlement agreement specifically states the NCAA agreed to remove UND from the list of institutions subject to the policy “[i]f UND announces a transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” The agreement also specifically states the NCAA agreed that UND shall retain the intellectual property and licensing rights to the Fighting Sioux nickname “[i]f UND announces a transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” That language plainly and unambiguously evidences the parties’ contemporaneous intent that UND could “transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” We reject the plaintiffs’ argument that a more logical interpretation of that phrase only authorizes the Board to retire the nickname and logo before November 30, 2010, if either tribe expressly denied or withdrew approval for the nickname and logo before that date. The plaintiffs’ interpretation is not supported by the plain language of the settlement agreement.
[¶19] Although the language of the settlement agreement recognizes the North Dakota Sioux Tribes have important contributions in determining whether the Fighting Sioux nickname and logo should be used by UND and the agreement requires UND to continue to solicit the views of the two tribes on the use of the nickname and logo, we do not construe that language to require UND to continue using the nickname and logo through November 30, 2010. That language must be harmonized with the language allowing UND to “transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” Moreover, we agree with the district court that the language stating that UND “intends to use the current name and logo with the utmost respect and dignity, and only for so long as it may do so with the support of the Native American community” is not a contractual agreement requiring UND to continue using the nickname through November 30, 2010. Rather, that language is a statement about the manner of UND’s use of the Fighting Sioux nickname and logo and not an agreement by UND requiring it to continue using the nickname and logo, or to wait until November 30, 2010, to terminate the nickname and logo.
[¶20] We construe the language of the settlement agreement as a whole to allow UND to transition to a new nickname and logo at the end of the approval period, “or at any time during the Approval Period.” We conclude the plain and unambiguous language of the settlement agreement, when construed as a whole and in conjunction with the Board’s constitutional and statutory authority, does not require the Board or UND to continue using the Fighting Sioux nickname and logo until November 30, 2010. We therefore conclude the settlement agreement, when construed as a whole, does not delegate to the two tribes the ultimate authority to determine usage of the Fighting Sioux nickname and logo, or limit the Board’s authority to terminate the nickname and logo before November 30, 2010.
[¶21] Because we construe the language of the settlement agreement to permit the Board to terminate UND’s nickname and logo before November 30, 2010, it is not necessary to further consider the issue about the plaintiffs’ standing. We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit.
IV
[¶22] We affirm the district court judgment.
[¶23] Dale V. Sandstrom
Carol Ronning Kapsner
Mary Muehlen Maring
Benny A. Graff, S.J.
Gerald W. VandeWalle, C.J.
[¶24] The Honorable Benny A. Graff, S.J., sitting in place of Crothers, J., disqualified.
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