State ex rel. Sanstead v. Freed
Decision Date | 21 February 1977 |
Docket Number | No. 9308,9308 |
Citation | 251 N.W.2d 898 |
Parties | STATE of North Dakota ex rel. Wayne G. SANSTEAD, Relator and Petitioner, v. Senator Howard A. FREED, President Pro Tem of the North Dakota Senate, et al., Respondents. Civ. |
Court | North Dakota Supreme Court |
Syllabus by the Court
For the reasons stated herein, Senate Rule 26 of the 45th Legislative Assembly, as it applies to the final disposition of a "bill", a resolution proposing amendments to the State Constitution, and resolutions proposing or ratifying amendments to the United States Constitution is constitutional but such Senate Rule 26 is unconstitutional as it relates to a tie-breaking vote by the Lieutenant Governor on the final disposition of other "resolutions".
Lee W. Fraase and Charles Tighe, Bismarck, for petitioner. Also present, Senior Law Student Paul Fraase.
Senator Howard A. Freed, President Pro Tempore, and Senator David E. Nething, Majority Floor Leader, of the North Dakota Senate, for respondents. Also present, Senior Law Student Carl Flagstad.
The instant proceeding is a Petition for Original Prerogative Writ under § 86 of the North Dakota Constitution, seeking an order from this Court prohibiting the North Dakota Senate of the 45th Legislative Assembly from conducting its affairs and proceedings under Senate Rules 26 and 55 as the same presently exist and requiring the North Dakota Senate to amend Senate Rules 26 and 55 "consistent with the decision of this Court". This Court issued an Order for Hearing on January 12, 1977, in which we requested that the parties address the question of this Court's jurisdiction as well as the merits of the petition. The matter was heard on January 28, 1977.
The Petitioner, Lieutenant Governor Wayne G. Sanstead, instituted the instant proceeding in response to action taken by Before amendment, Senate Rule 26 read:
the North Dakota Senate on December 9, 1976, on the third day of the Senate's organizational and orientation session wherein Senate Rules 26 and 55 were amended.
Senate Rule 26 was amended to read:
Before amendment, Senate Rule 55 read:
Senate Rule 55 was amended to read:
Lieutenant Governor Sanstead contends that the amendments to the Rules of the North Dakota Senate of the 45th Legislative Assembly violate and contravene § 77 of the North Dakota Constitution, which provides, in pertinent part:
In answering for the Senate, State Senator Howard A. Freed, President Pro Tempore of the North Dakota Senate, and State Senator David E. Nething, Majority Floor Leader of the North Dakota Senate, contend that Senate Rules 26 and 55 of the 45th Legislative Assembly, as amended, are not only constitutional, but are mandated by § 65 of the North Dakota Constitution, which provides:
Lieutenant Governor Sanstead asks that this Court exercise its original jurisdiction under § 86 of the North Dakota Constitution and issue an Original Prerogative Writ. Only the apparent conflict between Senate Rules 26 and 55, as amended, and § 77 of the North Dakota Constitution is alleged This Court has long held that proceedings before this Court must involve an actual controversy of a justiciable character, between parties having adverse interests, and that we may not decide abstract legal questions or render purely advisory opinions. Section 94, N.D.Const.; State ex rel. Olsness v. McCarthy, 53 N.D. 609, 207 N.W. 436, 437 (1926); Langer v. State, 69 N.D. 129, 284 N.W. 238, 251 (1939); and State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355, 358 (1945). In State ex rel. Olsness v. McCarthy, supra 207 N.W. at 437, this Court said:
since the amendment of Senate Rules 26 and 55 there had been no tie vote in the North Dakota Senate on any measure where the Lieutenant Governor had attempted to cast a tie-breaking vote; nor had there been such a tie vote when, in compliance with the said amended Rules, the Lieutenant Governor had abstained from voting as of the time of oral arguments before this Court.
In Langer, supra 284 N.W. at 250, this Court, quoting Judge Cardozo in Self-Insurers' Association et al. v. State Industrial Commission (In re Workmen's Comp. Fund), 224 N.Y. 13, 16, 119 N.E. 1027, 1028 (1918), stated:
" "
As was pointed out during the North Dakota Constitutional Debates of 1889, at which Convention a proposed "advisory opinion" clause for our Constitution was considered and rejected:
". . . we will have in this State an officer designated as the Attorney General, whose peculiar business it will be to advise the State officers and the Legislature when called upon. . . . the Attorney General is the officer to advise the civil officers, and when questions come before the Supreme Court, that court is then untrammeled." Proceedings and Debates of the First Constitutional Convention of North Dakota (1889), pp. 230-231.
Thus, before this Court can find jurisdiction, we must determine that we would be performing more than an advisory function as was carried out by the Attorney General on February 19, 1945, and by the Attorney General on February 18, 1975, in their opinions on this subject.
We find the facts of the instant proceeding do constitute a justiciable controversy. The Lieutenant Governor instituted the present proceedings to challenge the restraint placed by the State Senate of the 45th Legislative Assembly upon his office as President of the Senate. Such controversy needs no further factual development for our analysis. There is a present and existing conflict between the Attorney General's opinion of February 18, 1975, that a lieutenant governor may cast the deciding vote on the final passage of a bill in the Senate 1 and the present Senate Rules 26 and 55, which were amended during the December 1976 organizational session of the We find the instant proceeding appropriate for the exercise of this Court's original jurisdiction pursuant to § 86 of the Constitution of the State of North Dakota. Section 86 grants this Court authority to issue writs, in the exercise of its prerogative jurisdiction over questions involving the sovereignty of the State, its prerogatives, or the liberties of its people. State ex rel. Moore v. Archibald, 5 N.D. 359, 66 N.W. 234 (1896); State ex rel. DeKrey v. Peterson, 174 N.W.2d 95, 98 (N.D.1970), and cases cited. We find that the exceptional circumstances surrounding the instant proceeding directly affect not only the elected officials, but also the integrity of the law-making process of our Legislature. We make such finding based on the following factors: (1) the Lieutenant Governor openly declared his intent to cast a tie-breaking vote if...
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