The Legislature’s Lawsuit Against Gov. Burgum Just Got Ridiculous

North Dakota Attorney General Wayne Stenehjem, left, and Fargo businessman Doug Burgum meet for their last debate before the June 14 Republican primary election. The two debated at Avalon Events Center in Fargo on Wednesday, June 1, 2016. Rick Abbott / The Forum

At the conclusion of the 2017 Legislative Session, Governor Doug Burgum utilized his veto power and in the process ticked off some folks in the Legislative Assembly. Two of those that had their feathers ruffled was House Majority Leader Al Carlson (R- District 41) and Senate Majority Leader Rich Wardner (R – District 37).

Among the vetoes was Governor Burgum’s decision to strike down $16.1 million in funding to about 1,600 non-oil producing townships– a free $10,000 each. These townships had grown accustomed to receiving such funds during the hay day of the Bakken Oil Boom. But those days are now gone. And with revenues way down, Governor Burgum put a kibosh to the funding and called it “arbitrary” and “inefficient” as a use of “scarce financial resources”.

I first wrote about this issue back in May. The question at the time was whether the Legislature would use the spare three days they left themselves to reconvene and attempt to override the vetoes. But that option was rejected. Instead, the  decision was made to sue the governor.

The issue at hand in the lawsuit is whether Governor Burgum overstepped his authority in relation to the separation of powers. The argument goes that it’s one thing for Burgum to veto an appropriation, but it’s quite another for him to veto specific wording that changes the intent of legislation. Doing so would be more legislative in nature than executive. It’s actually a solid argument– one that actually has legal precedent.

The legal arguments regarding this issue were laid out in an Attorney General’s Opinion back in June. Attorney General Wayne Stenehjem found that there were indeed violations of the separation of powers found in some of Burgum’s vetoes:

“In summary, it is my opinion the Governor’s vetoes of subsections 1, 2, and 5 of section 6 and portions of sections 18 and 39 in S.B. 2003, 2017 N.D. Leg., as well as a portion of section 12 of S.B. 2018, 2017 N.D. Leg., are authorized by law.

The Governor’s veto of subsections 3 and 4 of section 6 of S.B. 2003, 2017 N.D. Leg., is not authorized by the Constitution and is not effective. However, although the Governor’s vetoes of a portion of section 5 of H.B. 1020, 2017 N.D. Leg., and a portion of section 12 of S.B. 2013, 2017 N.D. Leg., are not authorized by the Constitution, the vetoed language, in my opinion, would be found by a court to violate the separation of powers doctrine .” (Emphasis Added)

In an odd turn of events, it was reported yesterday that – of all people – Attorney General Wayne Stenehjem will defend Governor Doug Burgum and his vetoes in the pending lawsuit. Yes, the same Attorney General that said the governor violated the separation of powers through unconstitutional vetoes now gets to defend them. You can’t make this stuff up.

I’m curious as to why Governor Burgum would choose to use the Attorney General’s Office in his defense, given the fact that Stenehjem has already issued a formal opinion saying that he believes Burgum to have acted inappropriately with some of the vetoes? And while nothing prohibits him from doing so, is it appropriate? Is it even wise? Will the Attorney General even make the arguments himself before the Supreme Court?

Back in June, I wrote about how awkward this situation is, but this takes it to an entirely new level of awkward. It’s just downright strange. In fact, it just might have hit the level of being ridiculous.

Consider this as a recap…

1. Burgum vetoed various parts of legislation.

2. Rep. Al Carlson and Senator Rich Wardner – two of those labeled as part of the “Good ‘ol Boys Club” by candidate Doug Burgum – threaten to override the vetoes.

3. Carlson and Wardner request an Attorney General’s Opinion from another “Good ‘ol Boy”, Wayne Stenehjem– who also happens to be Burgum’s former opponent in the race for governor.

4. Attorney General Wayne Stenehjem issues his opinion that Governor Burgum did indeed overstep his authority on some of the vetoes.

5. The decision is made to sue the governor based on violating the separation of powers.

6. And now Governor Burgum decides to use Attorney General Wayne Stenehjem – the same man who said Burgum acted inappropriately – to defend the vetoes.

And think of this… a win for the Legislature in the North Dakota Supreme Court would be a win for the separation of powers. But it simultaneously means a loss for Burgum and others who favor reductions in spending. Welcome to the Twilight Zone known as North Dakota politics.


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About T. Arthur Mason 882 Articles
T. Arthur Mason is a native North Dakotan who has spent nearly all of his life in the Peace Garden State. As the third of four children in Western North Dakota, Mason grew to appreciate family and the outdoors. Some of his fondest memories are annual deer hunts with family and friends. In his early teenage years, faith became a central part of T. Arthur Mason's life. He and the majority of his family attend church together on a weekly basis and find this a fulfilling aspect of their lives. Through the influence of his father, T. Arthur Mason became intrigued with politics. As a boy, he attended political events with his father and enjoyed the friendships that resulted as a byproduct of those political associations. As Mason grew older, he became convinced that the quote often attributed to Thomas Jefferson was true, "That government is best which governs least." Today, T. Arthur Mason enjoys time with his wife and children, an occasional hunt, and an increasingly active life on the political scene. This blog is the fulfillment of a dream to design a web site in the realm of politics and to advocate for the principles of Liberty and constitutionally limited government. On behalf of all those that contribute to The Minuteman, we hope you enjoy your time on the site and will share the message with others.