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Without precedent? ND Legislature v. Burgum may stand alone

BISMARCK — Separation of powers defined N.D. Legislative Assembly v. Burgum, but the lawsuit may have something else: It's likely unprecedented.

The North Dakota Supreme Court's opinion issued in July settled legislative and executive disputes over Gov. Doug Burgum's partial veto authority and provisions on appropriations of the legislative Budget Section. A few other cases have tackled similar constitutional authority in North Dakota, such as opinions from 1935 and 1979 that addressed the governor's veto power, in part.

But this one might stand alone in its own way.

"To tell you the truth ... no, I can't recall where it was the Legislature versus the governor, clear and simple," said former Lt. Gov. Lloyd Omdahl, who has taught state and local government.

Any precedent?

John Olsrud, who spent 25 years as director of Legislative Council before retiring in 2007, said he's not aware of any identical dispute that has landed before the North Dakota Supreme Court.

He said the 1979 case — involving a partial veto of Gov. Art Link and duties assigned to the lieutenant governor by the Legislature — probably comes the closest to this year's legal challenge. Jim Davis, head of reference services for the State Historical Society of North Dakota, also cited the Link v. Olson case as the closest previous dispute he could find. The case also popped up in this year's arguments.

"Between branches, I'm not aware of any precedent to this," Olsrud said.

North Dakota Chief Justice Gerald VandeWalle also said the case could be unique, though past disputes could have been similar, just with different parties.

"You may have a situation in which the governor's authority is brought into question or the Legislature's, but it's not the Legislature or the governor that are the parties, so I suppose, directly, that may be true," he said. "I haven't thought about it in that regard."

In this case, state lawmakers of Legislative Management voted last fall to pursue litigation over five of Burgum's partial vetoes in four spending bills. The governor, via Attorney General Wayne Stenehjem, brought a cross-petition over the Budget Section's constitutional authority in provisions of two of those spending bills.

The state Supreme Court heard arguments in March, with its opinion issued 133 days later, ruling all but one veto as "ineffective," while finding the Budget Section "unconstitutionally encroached" on executive authority.

In a statement, Burgum called the dispute a "landmark case." Stenehjem, who represented the governor, previously said the high court's decision would solve "probably the most significant constitutional issue that will be decided in the last 40 years."

Who, what, where, why?

VandeWalle said the state Supreme Court doesn't accept original jurisdiction, or the first court in which a case is to be heard, unless the dispute is "rare and important."

"Most of them that we take, I think we consider important," he said. "However, how the public or the other branches view them, I don't know, but we do."

With constitutional questions at play, the cases are challenging, he added. But other cases that come before the high court also involve the constitution, such as search and seizure in criminal cases.

Moreover, separation of powers issues are "usually local" with little unanimity among states, Vandewalle added.

"For instance, North Dakota has a provision that says it takes four of the five (justices) to declare a law of the Legislature or the people in an initiative unconstitutional," he said. "Only two states have that."

VandeWalle also pointed to judges elected by legislatures in New England states, whose governments predate the United States, and also to chief justices appointed by governors in other states. North Dakotans elect their district judges and Supreme Court justices.

"You have to consider the local setting in which (separation of powers is) put in place, too," he said.

Omdahl said "it's very healthy for the citizenry" to have the separate branches "checked." The decision from this recent dispute could be drawn from in the future, particularly regarding the governor's authority, according to Omdahl.

"It's interesting that all three branches got into the play on this, and so we have balancing and checking going on in the state government, and that's kind of uncommon," Omdahl said.

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