STATE OF NORTH DAKOTA COUNTY OF GRAND FORKS

IN DISTRICT COURT NORTHEAST CENTRAL JUDICIAL DISTRICT ) ) ) ) ) ) ) ) ) ) ) )

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

Case No.

BRIEF IN SUPPORT OF PETITION FOR TEMPORARY INJUNCTION PURSUANT TO N.D.C.C. 32-05 FACTS Plaintiffs have standing to bring this action. The Committee for Understanding and Respect is authorized by the Spirit Lake Tribe to act on its behalf and proceed in any legal manner it deems appropriate to assure that the University of North Dakota (UND) shall remain known as the Fighting Sioux. Many of the members of the Committee have signed as sponsors of two petition drives that have been approved by the North Dakota Secretary of State. One petition is a referral of Senate Bill 2370 with the objective to secure approximately 13,000 signatures by February 7, 2012. The other is an Initiated Measure to secure the University of North Dakotas use of the name Fighting Sioux by placing it within the North Dakota Constitution. The two petitions are attached as Exhibits 1 and 2 and are central to the issue of this case. On December 17, 2011, Plaintiffs were not allowed in or near the REA to peacefully gather in an attempt to signatures for its petitions.

ISSUES Plaintiffs desire to assert their constitutional rights and peacefully assemble to gather signatures for its petitions inside and outside the Ralph Engelstad Arena (REA). Plantiffs assert the following: 1. That the REA is a public entity for First Amendment purposes as it is located on land presently owned by the North Dakota tax payer. 2. That the U.S. Constitution provides protection and rights to those desiring to assemble and gather petition signatures. 3. That the North Dakota Constitution in Article 3 affords special protections for those desiring to assemble and gather petition signatures. 4. That the REA Free Speech Activity Policy and Procedures do not afford those desiring to assemble and gather petition signatures reasonable time place and manner accommodations in accordance with North Dakota and Federal law. RELEVANT LAW AND CASELAW First Amendment contained in the U.S. Constitution that sets forth, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. North Dakota Constitutional Provisions:

Article I

Section 2: All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require. Section 5: The citizens have a right, in a peaceable manner, to assemble together for the common good, and to apply to those invested with the powers of government for the redress of grievances, or for other proper purposes, by petition, address or remonstrance. Article III in its entirety regarding the powers to the people by and through the initiated process and the special powers of law granted for this right as cited in Section 1 which states in part, Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers. Articles 9 for purposes of establishing North Dakota public schools are on public lands. Article 11, Section 5 which states: Unless otherwise provided by law, all meetings of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be open to the public ARGUMENT On December 17, 2011, Plaintiffs and others (Petition Circulators) attempted to secure signatures in a peaceful manner at the Ralph Engelstad Arena (REA). The activity that night was an exhibition game against the former CCCP National Team. The right to secure signatures and assembly of people to gather signatures was denied by

the REA the night UND played Russia. On December 17, 2011, the REA demanded Petition Circulators go to an REA designated Free Speech Zone. These zones are either by the UND bookstore or far removed from the crowds of people that attend UND hockey games. These zones are located in dark out-of-the-way locations1. Attached

as Exhibit 3 is the REA Free Speech Activity Policy and Procedure (REA Policy). Exhibit 4 is the map that shows the significant buffer surrounding the REA. (REA map). The REA policy claims to set forth reasonable access designated for free expression as set forth in the US and State Constitutions. (See Exhibit 3). The REA claims its free speech zones are, designated for the purpose of providing maximum reasonable access by those involved in free speech activities to members of the public utilizing the Ralph Engelstad Arena and its vicinity. These areas are located to best promote public safety as well as the safety of the demonstrators and to not impede the free flow and passage of individuals to and from the facilities and parking lots of [REA]. The REA may consider itself a private entity and insists it, therefore, deserves a special category of protection as applied against North Dakotans wishing to assert the constitutional rights of initiative and referendum pursuant to Article III of the North Dakota Constitution. Plaintiffs believe the REA may use a boilerplate type of policy that is applied in other REA affiliated buildings throughout the USA. However, the REA is located on land leased and owned by the State of North Dakota. (See Exhibit 5, Email from the GF County Register of Deeds office). Further, for UND hockey purposes, the REA is leased by and to a public school. Therefore, the REA falls into the realm of a
1

Registration was not brought up as an issue. Plaintiffs had emailed the REA informing them of their intent to petition at REA. A Fax had been sent to the Grand Forks city Attorney. Phone calls were also made. Plaintiffs have also filed registrations with both UND and the REA for all home games for mens and womens hockey and basketball.
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public entity for free expression purposes, at the very least for those nights that UND leases the property and opens the REA to the public at large. It is on those nights, when the UND Mens and Womens hockey programs host home events, that Petitioners desire entrance to the REA and to the crowds of people to peacefully, without the hindrance of traffic flow, seek petition signatures. The REA is a large state of the art complex with wide hallways, palatial lobbies and entrances that can easily accommodate one or more small card-tables to go forward with its ballot initiatives.

The North Dakota state Constitution provides free speech protections similar to the U.S. Constitution. However, North Dakota, like some other states provide more comprehensive protections than the U.S. First Amendment, especially in regard to the Initiated Measure and Referral process as set forth in Article III. (See Sec. 1, Art. III noted above, N.D. Const.). The U.S. Supreme Court has permitted states to extend such enhanced protections. Plaintiffs assert that the REA is not a private entity for purposes of UND hockey. But even if the REA could be construed as private the U.S. Supreme Court unanimously held in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude such individuals. The Court did, however, maintain that shopping centers could impose "reasonable restrictions on expressive activity." Other states such as Colorado, Massachusetts and New Jersey have followed. In this matter, Plaintiffs argue that any reasonable restriction does not include standing outside in the cold, where pens do not

always work well, to secure signatures for its ballot initiatives. The North Dakota Supreme Court has explained freedom of expression rights on the UND campus in Reimers v. State of North Dakota, 2009 ND 115 and in that case the court explained the forum analysis contained in the traditional public forum, the public forum created by government designation and the nonpublic forum. Plaintiffs acknowledge that reasonable time, place and manner regulations may be implemented by the REA. However, the REA has a policy that completely bans petition circulation and freedom of speech in its entirety while in the course of acting as a public forum during hockey games. The REA policy is not narrowly tailored, as required in forum analysis, to achieve any significant government or other interest. Plaintiffs request is not overwhelming nor will it cause a disturbance. Plaintiffs wish to gather signatures where there is light, where there is heat, and where crowds of people are located. Plaintiffs assert their constitutional rights, in abiding with reasonable time, place, and manner and ask this Court to allow Plaintiffs to be allowed inside the REA to seek signatures for an initiated measure and referendum petition.

Dated this ___ day of December, 2011.

PRINGLE & HERIGSTAD, P.C. BY:_______________________ Reed A. Soderstrom #04759 Attorneys for Plaintiffs

2525 Elk Drive PO Box 1000 Minot, ND 58702-1000 701-852-0381 rsoderstrom1611@gmail.com

CERTIFICATE OF SERVICE A true and correct copy of the foregoing document was mailed on the December, 2011, to the following: Patrick R. Morley Attorney at Law PO Box 14519 Grand Forks, ND 58208-4519 ___________________ Reed A. Soderstrom day of

STATE OF NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF GRAND FORKS

NORTHEAST CENTRAL JUDICIAL DISTRICT ) ) ) ) ) ) ) ) ) ) ) )

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

Case No.

PETITION FOR TEMPORARY INJUNCTION PURSUANT TO N.D.C.C. 32-05 Come now the Plaintiffs and petition this Court for a Temporary Injunction pursuant to N.D.C.C. 32-05 and request the court for the following relief: 1. That Petitioners be allowed reasonable access to the Ralph Engelstad Arena (REA) , including inside the REA, to seek signatures for an initiated measure and referendum petition. 2. That the Court declare the free expression zones established by the REA as unconstitutional and in violation of the First Amendment of the U.S. Constitution, and Sections 2 and 5 of Article 1, Article 3, Article IX and Section 5 of Article 11 of the North Dakota Constitution.

Dated this ___ day of December, 2011.

PRINGLE & HERIGSTAD, P.C. BY:_______________________ Reed A. Soderstrom #04759 Attorneys for Plaintiffs 2525 Elk Drive P.O. Box 1000 Minot, ND 58702-1000 701-852-0381 Rsoderstrom1611@gmail.com
CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document was mailed on the December, 2011, to the following: Patrick R. Morley Attorney at Law PO Box 14519 Grand Forks, ND 58208-4519

day of

___________________ Reed A. Soderstrom

STATE OF NORTH DAKOTA COUNTY OF GRAND FORKS

IN DISTRICT COURT NORTHEAST CENTRAL JUDICIAL DISTRICT

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No

MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS PURSUANT TO N.D.C.C. 32-34 Plaintiffs have filed a similar Petition for preventative relief pursuant to N.D.C.C. 32-05 requesting relief to exercise their constitutional rights in gaining entrance into the Ralph Engelstad Arena (REA). The issue involves collecting signatures for the two petitions that have been approved by the North Dakota Secretary of States Office. Both petitions seek to retain the University of North Dakotas use of the name Fighting Sioux. The Referendum Initiative requires more than 13,000 signatures by February 7, 2012. The window of time to secure referral signatures is very short, the necessity of obtaining signatures is immediate and cannot wait for the normal process and extensive time for a full hearing to be calendared. Therefore, this Writ of Mandamus pursuant to N.D.C.C. 32-34-02 allows a remedy for immediate action:

The writ must be issued in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Further, the North Dakota Constitution specifically sets forth POWERS RESERVED TO THE PEOPLE (See Article3 regarding the initiated measure and referral process). Section 1, Art. 3 states in part that, .Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers Plaintiffs request this Court to take immediate action and hold a hearing before December 30, 2011, so that issues may be heard prior the next UND home hockey series. Dated this ___ day of December, 2011. PRINGLE & HERIGSTAD, P.C. BY:_______________________ Reed A. Soderstrom #04759 Attorneys for Plaintiffs 2525 Elk Drive P.O. Box 1000 Minot, ND 58702-1000 701-852-0381 Rsoderstrom1611@gmail.com
CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document was mailed on the December, 2011, to the following: Patrick R. Morley Attorney at Law PO Box 14519 Grand Forks, ND 58208-4519

day of

___________________ Reed A. Soderstrom

2

STATE OF NORTH DAKOTA COUNTY OF GRAND FORKS

IN DISTRICT COURT NORTHEAST CENTRAL JUDICIAL DISTRICT

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No.

AFFIDAVIT BY REED A. SODERSTROM IN SUPPORT OF PETITION FOR TEMPORARY INJUNCTION PURSUANT TO N.D.C.C. 32-05 AND IN SUPPORT OF WRIT OF MANDAMUS State of Arizona ) ) ss. County of________ ) I, Reed Soderstrom, do solemnly swear to the following: 1. I am the attorney for the Plaintiffs in this matter as well as a Federal Court lawsuit against the NCAA. I am the Chairman of the Sponsoring Committee that is circulating two Petitions in an attempt to get a referral on the ballot in June 2012, as well as an Initiated Measure on the November 2012 ballot, for a Constitutional Measure. I am also an active petition circulator for the two petitions. On December 17, 2011, I was at the Fargodome along with others gathering signatures. We had a table placed right outside of the entrance of the Fargodome. We were accommodated to be in a conspicuous place that would be noticed by people attending the Bison football game. Our presence did not impede the traffic of the fans nor were there any disturbances.

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The same evening of December 17, 2011, I was at the Ralph Engelstad Arena. I had sent an email to the REA Director the days prior to December 17, 2011, and I had faxed a notice to the Grand Forks City Attorney that a group of us would be at the REA attempting to secure signatures. I neither expected nor received a response. The issue did not seem a priority or a concern because no disturbance was going to occur. Upon arrival at the REA, at approximately 4:00 p.m. on December 17, 2011, our group went to the administrative offices of the REA. We were provided the REA free speech policies and map. Although the meeting was amicable, neither side agreed on an appropriate location for our petition signature tables. We were not allowed inside nor were we allowed to be under any street lights or even remotely close to the entrances of the REA. I placed a table as far to the East as I could get from the REA without crossing the street. There was a street light there. I was asked to move by REA officials. I moved to the UND Book Store area that the REA declared a free speech zone. I was actually in the grass without any lighting. It was cold difficult for pens to work to obtain signatures. People in wheel chairs approached me in the dark and in the grass to sign the petitions. People with canes and noticeable walking disabilities also came to my table in the dark and in the grass to sign the petitions. Elderly individuals, with difficulty, negotiated through ice and up the curb where I was located to sign the Petitions. While the petition drive was a successful effort, so much more could have been done if our location would have been reasonably accessible, with adequate lighting and inside the REA. The REA policies for Free Speech stifle any attempt at obtaining meaningful and peaceful assembly to gather signatures. The REA policy does not allow petition circulators to get close to the people or be noticed by the people. Distances away from the REA and REA entrances combined with the cold weather and darkness restrict the constitutional rights of the people of North Dakota to lawfully gather signatures. There are no reasonable accommodations as to time, place and manner of the REA Free Speech Zones. Instead, the REA policy has the effect, whether intended or unintended, to keep any peaceful assembly from gathering. In my opinion, the REA policy

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is neither accessible, accommodating or reasonable to any degree for the peaceful assembly of people wishing to petition their government. 12. A Writ of Mandamus is requested and needed if a hearing cannot be held prior to the December 30 and 31, 2011, Harvard hockey series at the REA.

Dated this ___ day of December, 2011. _____________________ Reed A. Soderstrom

On this

day of December, 2011, before me personally appeared

Reed A. Soderstrom, known to me to be the person who is described in, and who executed the within instrument and acknowledged that he executed the same. _____________________ Notary Public State of Arizona My Commission Expires:

STATE OF NORTH DAKOTA COUNTY OF GRAND FORKS

IN DISTRICT COURT NORTHEAST CENTRAL JUDICIAL DISTRICT

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No.

PETITION FOR WRIT OF MANDAMUS PURSUANT TO N.D.C.C. 32-34 Come now the Plaintiffs and petition this Court for a Writ of Mandamus pursuant to N.D.C.C. 32-34 and request the court for the following relief: 1. That the Court declare the Free Expression Zones established by the REA as unconstitutional and in violation of the First Amendment of the U.S. Constitution, and Sections 2 and 5 of Article 1, Article 3, Article IX and Section 5 of Article 11 of the North Dakota Constitution. 2. That Petitioners be allowed inside the Ralph Engelstad Arena (REA) to seek signatures for an initiated measure and referendum petition for all UND Mens and Womens Home Hockey games. Dated this ___ day of December, 2011.

PRINGLE & HERIGSTAD, P.C. BY:_______________________ Reed A. Soderstrom #04759 Attorneys for Plaintiffs 2525 Elk Drive P.O. Box 1000 Minot, ND 58702-1000 701-852-0381 Rsoderstrom1611@gmail.com

CERTIFICATE OF SERVICE A true and correct copy of the foregoing document was mailed on the December, 2011, to the following: Patrick R. Morley Attorney at Law PO Box 14519 Grand Forks, ND 58208-4519 ___________________ Reed A. Soderstrom day of

STATE OF NORTH DAKOTA COUNTY OF GRAND FORKS

IN DISTRICT COURT NORTHEAST CENTRAL JUDICIAL DISTRICT

The Spirit Lake Sioux Tribe of Indians, by and through its Committee for Understanding and Respect, and Archie Fool Bear, individually, and as Representative of the more than 1004 Petitioners of the Standing Rock Sioux Tribe, Plaintiffs, vs. Ralph Engelstad Arena, Defendant.

) ) ) ) ) ) ) ) )

Case No.

WRIT OF MANDAMUS PURSUANT TO N.D.C.C. 32-34 Pursuant to the Petitions for Injunctive Relief this Court hereby orders that the Ralph Engelstad Arena refrain from exercising its Free Speech Activity Policy and Procedure to the extent that follows: 1. That Petition Circulators for the initiated measure and referendum regarding the Fighting Sioux ballot initiatives be allowed reasonable access inside the Ralph Engelstad Arena in a location or locations that are conspicuous but not hazardous to the public at large. 2. That Petition Circulators for the initiated measure and referendum regarding the Fighting Sioux ballot initiatives be allowed reasonable access around and outside the Ralph Engelstad Arena in a location or locations that are conspicuous but not hazardous to the public at large and at the very least are located at the entrances where the public at large accesses the arena. 3. The above shall apply for all UND Mens and Womens home hockey games.

4.

This Writ shall be in effect until a full hearing on the issue is held.

BE IT SO ORDERED. Dated this ____ day of December, 2011. BY THE COURT: _______________ District Judge