N.D. Legislative Assembly v. Burgum

Decision Date30 July 2018
Docket NumberNo. 20170436,20170436
Citation916 N.W.2d 83
Parties NORTH DAKOTA LEGISLATIVE ASSEMBLY, Senator Ray Holmberg, Representative Al Carlson, Senator Rich Wardner, Senator Joan Heckaman, and Representative Corey Mock, Petitioners and Cross–Respondents v. North Dakota Governor Doug BURGUM, Respondent and Cross–Petitioner and North Dakota Attorney General Wayne K. Stenehjem, Cross–Petitioner
CourtNorth Dakota Supreme Court

Shawn A. Grinolds (argued) and Randall J. Bakke (appeared), Bismarck, N.D., for petitioners.

Wayne K. Stenehjem (argued), Attorney General, and James E. Nicolai (appeared), Deputy Solicitor General, Bismarck, N.D., for respondent.

Tufte, Justice.

[¶ 1] The Legislative Assembly, joined by individual legislators consisting of the leaders of the senate and the house of representatives and of the legislative management committee, petitioned this Court to exercise our original jurisdiction to determine the constitutionality of five partial vetoes issued by Governor Doug Burgum. Governor Burgum, joined by Attorney General Wayne Stenehjem, cross-petitioned seeking judgment declaring unconstitutional the provisions in two bills which condition the spending or transfer of certain appropriated funds upon approval of a legislative committee.


[¶ 2] After adjournment of the Regular Session of the 65th Legislative Assembly, the Governor vetoed five items in four appropriation bills by striking through certain language in the bills before signing them into law. In an opinion requested by Senator Rich Wardner and Representative Al Carlson, the Attorney General concluded three of the partial vetoes were ineffective: Senate Bill 2003, § 18, subsection 3 ("Any Portion Veto"); House Bill 1020, § 5 ("Water Commission Veto"); and Senate Bill 2013, § 12 ("IT Project Veto"). N.D. Op. Att’y Gen. 2017-L-04 (June 19, 2017). The Attorney General stated that these partial vetoes were ineffective because they exceeded the Governor’s constitutional authority by attempting to veto a condition on an appropriation without vetoing the appropriation itself. The Attorney General further stated that, although the Water Commission Veto and IT Project Veto were ineffective, a court would conclude the vetoed language is unconstitutional under the separation of powers doctrine.

[¶ 3] The Legislative Assembly petitions for a declaratory judgment voiding the five partial vetoes and declaring that the bills, without the challenged vetoes, are the current law. Alternatively, if a declaratory judgment is not granted, the Legislative Assembly seeks a writ of mandamus compelling the Governor to treat the partial vetoes as a nullity. The Governor and the Attorney General cross-petition for a declaratory judgment stating that the budget section provisions stricken by the Water Commission Veto and the IT Project Veto are unconstitutional in violation of the non-delegation and separation of powers doctrines.


[¶ 4] The Legislative Assembly petitions this Court to exercise its original jurisdiction to void five partial vetoes; the Governor cross-petitions this Court to exercise our original jurisdiction to rule on his cross-petition seeking declaratory judgment. We have "original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise [our] jurisdiction." N.D. Const. art. VI, § 2. It is well-settled that we invoke our original jurisdiction "only in cases publici juris and those affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people." State v. Nelson County , 1 N.D. 88, 101, 45 N.W. 33, 38 (1890) ; N.D. State Bd. of Higher Ed. v. Jaeger , 2012 ND 64, ¶ 11, 815 N.W.2d 215 ; State ex rel. Link v. Olson , 286 N.W.2d 262, 266 (N.D. 1979). Even upon proper showing, original jurisdiction is always discretionary, and the Court determines for itself whether a matter is within its original jurisdiction. Olson , 286 N.W.2d at 266.

[¶ 5] We have exercised our original jurisdiction to determine the constitutionality of a partial veto and the constitutionality of a legislative assignment of duties to the lieutenant governor:

In this case the governor contends that the legislative branch has infringed upon the authority granted to him by the North Dakota Constitution to assign duties to the lieutenant governor. The case also involves the extent of the power of the governor to partially veto a bill. The constitutionality of legislative action which appears to change the scope and function of the office of lieutenant governor is involved. These are issues of public concern as they affect not only the elected officials who are directly involved, but also the delicate balance of powers between the legislative and executive branches of government. Accordingly, we hold this to be a proper case for this court to exercise its original jurisdiction.

Id. ; see also State ex rel. Peterson v. Olson , 307 N.W.2d 528, 531 (N.D. 1981) (exercising original jurisdiction over "challenges relat[ing] to the very foundation upon which the executive and legislative branches of government rest").

[¶ 6] The Governor argues that none of the challenges to his partial vetoes involve a justiciable controversy. A claim may be non-justiciable if a party lacks standing, Whitecalfe v. North Dakota Dep’t of Transp. , 2007 ND 32, ¶ 15, 727 N.W.2d 779, the claim is moot, Brandvold v. Lewis and Clark Pub. Sch. Dist. , 2011 ND 185, ¶¶ 9-11, 803 N.W.2d 827, or if the answer would be advisory, Richland Cty. Water Res. Bd. v. Pribbernow , 442 N.W.2d 916, 918-19 (N.D. 1989). The Legislative Assembly has standing to bring otherwise justiciable claims seeking to defend against executive branch encroachment into the legislative sphere through improper use of a partial veto. See Colorado General Assembly v. Lamm , 704 P.2d 1371, 1378-79 (Colo. 1985).

[¶ 7] The Governor argues that the challenge to the partial veto of Senate Bill 2003, § 39 ("Credit Hour Veto") does not present a justiciable controversy because the vetoed phrase in a statement of legislative intent already lacked legal significance. The Legislative Assembly cannot restrict a subsequent legislative assembly from appropriating funds through a statement of intent. State v. Blaisdell , 18 N.D. 55, 68, 118 N.W. 141, 147 (1908) (rejecting argument that a statute binds future legislatures because "each Legislature has plenary power when not restricted by the state or federal Constitutions, and hence may repeal the entire primary law at any time"); Opinion of the Justices , 146 Me. 183, 79 A.2d 753, 756 (Me. 1951) (stating that "one Legislature cannot impose a legal obligation to appropriate money upon succeeding Legislatures"); Ex parte Collie , 38 Cal.2d 396, 240 P.2d 275, 276 (Cal. 1952) ("It is the general rule that one legislative body cannot limit or restrict its own power or that of subsequent Legislatures and that the act of one Legislature does not bind its successors."). Thus, the Governor argues, because Section 39 holds no legal significance, a justiciable controversy does not exist. The Legislative Assembly asserts the Governor may not alter a statement of legislative intent by using a partial veto to remove a phrase. Whatever its practical effect here, whether a legislative statement of intent is subject to editorial revision by the Governor through partial veto is neither moot nor advisory and raises a potential for modification of legislative intent having a variety of effects. The Credit Hour Veto raises a justiciable controversy.

[¶ 8] The Governor contends that the veto of Senate Bill 2018, § 12 ("Workplace Safety Veto") is non-justiciable because the challenge is premised on an agency bookkeeping error that has since been corrected and an incorrect assertion by the Legislative Assembly that the source of the funds is not ascertainable. The Governor argues that the Workplace Safety Veto is non-justiciable because he acknowledges the $2,250,000 appropriation must be reduced by $300,000 and the $300,000 must remain in the research North Dakota fund subject to any other conditions placed on that fund. These arguments are more properly considered as going to the merits of the claim rather than justiciability. Whether the veto was effective and, if so, what was the legal effect of the veto are justiciable matters.

[¶ 9] The Governor argues that because he agrees with the Attorney General’s conclusion that the Any Portion Veto, Water Commission Veto, and IT Project Veto were ineffective, no actual and justiciable controversy exists. The Governor contends that we would merely be issuing an advisory opinion. The Legislative Assembly argues that because an attorney general opinion is not binding law, see Sorum v. Dalrymple , 2014 ND 233, ¶ 10, 857 N.W.2d 96, it cannot negate a gubernatorial veto. N.D. Const. art. V, § 9 ("Portions of the bill not vetoed become law."). Under the constitution, a veto is either effective when made or it exceeds the Governor’s authority and is a legal nullity. State ex rel. Sandaker v. Olson , 65 N.D. 561, 567, 260 N.W. 586, 588 (1935). We hold the Governor has no power to withdraw a veto, nor may he reach that result by agreeing with an attorney general opinion that a veto exceeded constitutional limits. To conclude otherwise would leave the law in an indeterminate state subject to the discretion of the Governor and Attorney General. Because an unauthorized veto has no effect, if the Governor exceeded his constitutional authority, the bills with ineffective vetoes became law in their entirety. N.D. Const. art. V, § 9 ; Olson , 286 N.W.2d at 272-73.

[¶ 10] Similar to Olson , the issues in this case involve the constitutionality of partial vetoes and the limits of the legislature’s power as it approaches the powers properly exercised by the executive branch. These issues concern the balance of powers between the legislative and executive branches of government. See The Federalist No. 48 (James...

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