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Veto Q&A: A primer on the legal tussle between N.D.'s Legislature and governor

Gov. Doug Burgum at a January 2018 meeting at Bismarck State College. / Forum News Service 1 / 2
Rep. Al Carlson in January 2017. Tom Stromme / Forum News Service2 / 2

BISMARCK—The North Dakota Legislature is locked in a legal battle with Gov. Doug Burgum over several vetoes he issued last year, with each side filing opposing arguments to the state Supreme Court in recent weeks.

At the heart of the dispute are arguments over the constitutional authority of the legislative and executive branches of government, and lawmakers have asked the third branch to weigh in.

Arguments are now planned for March, state Supreme Court Clerk Penny Miller said Thursday, Jan. 18.

But what's behind the tussle and what's at stake? Get up to speed with this guide.

Q. How did we get here?

• Days after the Republican-controlled Legislature adjourned in late April, Burgum, a Republican then in his first year in office, vetoed parts of at least nine bills in what he said was an effort to "clearly delineate between executive and legislative powers and to prioritize spending at a time when fiscal restraint is essential." The state constitution allows the governor to veto items in appropriations bills or budget legislation, while allowing the rest to become law.

Q. What happened next?

• Legislative leaders asked for an opinion from Attorney General Wayne Stenehjem, questioning whether Burgum overstepped his constitutional authority on several of those partial vetoes. They pointed to partial vetoes on bills funding higher education, the Department of Commerce, State Water Commission and Department of Trust Lands. Stenehjem later said Burgum went too far on some vetoes because he tried to strike conditions or restrictions on spending without vetoing the appropriation itself. For instance, Burgum tried to veto three words from the higher education bill that prevented Dickinson State University from discontinuing "any portion of" its nursing program.

Q. So then it was settled, right?

• Not quite. Legislative Management, a powerful interim committee, voted in September to pursue legal action over Burgum's vetoes. The governor criticized the move as an imprudent use of taxpayer money, but some legislators said they wanted clarity over the issue. House Majority Leader Al Carlson, R-Fargo, worried that allowing the governor to "selectively delete words and change intent of language" would set a precedent. Lawmakers, represented by two Bismarck attorneys, asked the state Supreme Court in December to determine the legal effect of five of Burgum's partial vetoes.

Q. How has Burgum responded?

• In a response filed last week, Stenehjem asked the North Dakota Supreme Court to reject arguments from lawmakers, noting that he had already declared three of the five vetoes in question ineffective in his opinion that was requested by lawmakers. Burgum, in an affidavit, said the attorney general's opinion "resolves the question of the effectiveness of these vetoes." As for the other two vetoes, Stenehjem said one involves a "non-substantive bookkeeping oversight by a state agency" and the other involves language that "had no legal significance because it was merely a statement of intent with respect to future appropriations."

Q. What else did Stenehjem say?

• What instead merits court consideration, Stenehjem argued, are parts of two bills lawmakers brought up that deal with a legislative committee known as the Budget Section. He said the bills give that committee "unfettered discretion to determine whether a law passed by the entire Legislative (Assembly) takes effect or not" and usurp the governor's veto power. Stenehjem and Burgum asked the court to declare those sections unconstitutional.

Q. What is the Budget Section?

• Made up of 42 lawmakers — the state Legislature has 47 districts — the Budget Section meets between the Legislature's regular sessions that take place every two years. During this interim session, it's tasked with receiving reports from state agencies and institutions, approving Land Board property purchases and authorizing the State Board of Higher Education to approve certain campus improvements, among other duties. Longtime state Sen. Ray Holmberg, a Republican, said the Budget Section has been around for decades, but the question now is whether it has "amassed too much power" and become a "mini-Legislature."

Q. How much is this legal battle going to cost?

• It's hard to say. As of Tuesday, Legislative Council had spent more than $26,000 in legal fees regarding the veto petition, a legislative administrative officer said. But that wouldn't include the costs on the governor's side of the dispute. Burgum's spokesman, Mike Nowatzki, said they don't know what it's going to cost. But he said it cost more than $5,800 for a legal review from independent counsel to determine whether the attorney general's opinion created any conflict of interest that would preclude Stenehjem from representing Burgum. Attorney Bruce Quick determined no conflict exists under state professional conduct rules, Nowatzki previously said.

Q. What's next?

• The Supreme Court is allowing the Legislature to file a response to Burgum by Feb. 12. Arguments are planned for March, Miller 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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