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Stenehjem: North Dakota Supreme Court opinion has larger implications for Legislature

House Majority Leader Al Carlson, R-Fargo, foreground, sits in the gallery at the North Dakota Supreme Court as state Attorney General Wayne Stenehjem, middle, and Gov. Doug Burgum confer during legal arguments presented to the five justices in the case involving the challenge by lawmakers of Burgum's issuing five vetoes on parts of spending bills passed in the 2017 legislative session. Mike McCleary / Bismarck Tribune

BISMARCK — The North Dakota Supreme Court's ruling resolving the dispute between Gov. Doug Burgum and the Legislature will have implications beyond the issues raised in the court case, Attorney General Wayne Stenehjem said Tuesday, July 31.

In a decision handed down Monday, the court sided with the state's executive branch in striking down parts of two bills that justices said unconstitutionally delegated too much authority to large legislative committee known as the Budget Section. Stenehjem said there are almost two dozen other parts of existing law that give the committee similarly improper powers.

Stenehjem said the court's ruling makes clear the committee can't decide whether laws or appropriations take effect. One bill provision ruled unconstitutional Monday conditioned $1.8 million for an information technology project on Budget Section approval, which the court said encroached on executive branch power.

"They're a fact-gathering and research entity," Stenehjem said.

The Budget Section is a 42-member committee that meets between the Legislature's biennial sessions. Stenehjem said there's "good reason" to call it a "mini-Legislature."

Grand Forks Republican Sen. Ray Holmberg, who chairs a different committee that voted to petition the state's highest court over five of Burgum's vetoes, said lawmakers will have to ensure the Budget Section is "not making legislative decisions, but more ministerial decisions."

John Bjornson, Legislative Council's lead attorney and incoming director, said the ruling will likely mean some tweaks for the Legislature but could result in less flexibility for the executive branch. He noted the court struck language allowing the State Water Commission to transfer funds within its budget with Budget Section approval.

Stenehjem, a former legislator, said the ruling might encourage lawmakers to think about meeting in regular sessions more frequently. He has heard from some lawmakers who argued it's difficult to go two years between sessions in an ever-changing world.

"And that's part of the reason that they started to rely more and more on the Budget Section over the years," he added.

But Holmberg doubted the Legislature would start meeting annually because of the ruling. North Dakota's is one of four state legislatures that doesn't convene every year, according to the National Conference of State Legislatures.

Senate Majority Leader Rich Wardner, R-Dickinson, agreed that the court's decision won't prompt an immediate schedule change, but "that could be something that would happen down the road."

Holmberg said the state Supreme Court helped clarify the governor's veto power while sending an "appropriate warning shot across the bow of the Legislature" but its decision didn't declare clear winners and losers.

"I think we ended up with some questions answered that needed answering," he said.

Burgum and Stenehjem, the governor's one-time political rival who defended him in the legal tussle, both celebrated the ruling. Although the court said four of the five partial budget bill vetoes challenged by lawmakers were ineffective, Burgum had already agreed with Stenehjem that three were invalid.

The justices said Burgum cannot "withdraw" a veto by agreeing with the attorney general, however. They said the bills with unauthorized vetoes became law in their entirety.

Lawmakers petitioned the court late last year and asked the justices to determine the legal effect of the vetoes, in which Burgum struck parts of budget legislation after the end of the 2017 session. The state constitution allows the governor to veto items in an appropriations bill while allowing the rest to become law, but the court said Burgum went too far in some cases by striking conditions on spending without vetoing the appropriation itself.

In a statement Tuesday, Burgum hoped the "clarity provided by the Supreme Court will be an incentive for even greater collaboration" with lawmakers. Wardner said the dispute won't affect the Legislature's relationship with the first-term governor.

The legislative branch spent about $63,000 for outside attorneys, which will be covered with existing budget savings, Legislative Council Director Jim Smith said. The total cost of the dispute, including resources spent on defending the governor, was unclear.

"The legal work is done as part of the ongoing duties of this office," Stenehjem spokeswoman Liz Brocker said.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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