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North Dakota Legislative Assembly v. Burgum

Supreme Court of North Dakota

July 30, 2018

North Dakota Legislative Assembly, Senator Ray Holmberg, Representative Al Carlson, Senator Rich Wardner, Senator Joan Heckaman, and Representative Corey Mock, Petitioners and Cross-Respondents
North Dakota Governor Doug Burgum, Respondent and Cross-Petitioner and North Dakota Attorney General Wayne K. Stenehjem, Cross-Petitioner

          Petition for Declaratory Judgment, or in the Alternative, for Writ of Mandamus, and Cross-Petition for Declaratory Judgment.

          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, 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, 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 Madison). Because our constitution provides for a separation of legislative, executive, and judicial powers, actions which tend to undermine this separation are of great public concern. The petition and cross-petition present justiciable controversies of significant public interest that justify exercise of our original jurisdiction.


         [¶ 11] The Legislative Assembly seeks declaratory judgment declaring void five partial vetoes, leaving as current law the bills without the vetoes. The Governor concedes three of the partial vetoes were ineffective but argues two were within his veto authority. Because these are all justiciable claims, we reach the merits on all contested vetoes despite the Governor's concession.

         [¶ 12] The Governor's veto authority is derived from N.D. Const. art. V, § 9, which provides, in relevant part:

Every bill passed by the legislative assembly must be presented to the governor for the governor's signature. If the governor signs the bill, it becomes law.
The governor may veto a bill passed by the legislative assembly. The governor may veto items in an appropriation bill. Portions of the bill not vetoed become law.

Section 9 was enacted as part of a new Article V, which became effective July 1, 1997. 1997 N.D. Sess. Laws ch. 568, §§ 9, 14.

         [¶ 13] In Olson, we interpreted a previous constitutional provision granting the governor veto authority. At that time, the constitution provided:

The governor shall have power to disapprove of any item or items or part or parts of any bill making appropriations of money or property embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items and part or parts disapproved shall be void, unless enacted in the following manner:...

286 N.W.2d at 268 (quoting N.D. Const. § 80 (repealed eff. July 1, 1997)). The purpose of Section 80 was to prevent logrolling, "the practice of attaching riders of objectionable legislation to general appropriation bills in order to force the governor to veto the entire bill or approve the act with the objectionable parts intact." Id. at 269. In interpreting Section 80, we held:

that the governor, in exercising his partial veto power, may only veto items or parts in appropriation bills that are related to the vetoed appropriation and are so separate and distinct that, after removing them, the bill can stand as workable legislation which comports with the fundamental purpose the legislature intended to effect when the whole was enacted. He may not veto conditions or restrictions on appropriations without vetoing the appropriation itself.

Id. at 270 - 71.

         [¶ 14] Formerly, the Governor could veto "any item or items or part or parts." Now, the Governor "may veto items." To whatever extent a "part" was distinct from an "item," the partial veto power would be narrowed to that extent. The parties have not provided a substantive reason for this textual alteration, and we have found none. The available evidence suggests the voters who approved the amended provision intended to simplify rather than narrow the provision. See N.D. Op. Att'y Gen. 2001-F-04, at 5 fn. 5 (May 8, 2001). Accordingly, the analysis in Olson is unaffected by the amendment. Changing the language from "item or items or part or parts," N.D. Const. § 80 (repealed eff. July 1, 1997), to "items," N.D. Const. art. V, § 9, has not changed the plain meaning of the Constitution. Thus, the Governor can veto "items in an appropriation bill" if what remains is workable legislation, but cannot veto conditions on an appropriation unless the appropriation is also vetoed. See Olson, 286 N.W.2d at 270 - 71.

         [¶ 15] An "item" subject to partial veto includes a specified sum of money designated for a particular purpose. Sandaker, 260 N.W. at 589 (approving of "item" definition provided in Fairfield v. Foster, 214 P. 319 (Ariz. 1923)). An "item" may be vetoed in its entirety, but it may not be reduced or scaled. See id. If the "item" is an appropriation included in a larger subdivision or otherwise aggregated into a larger appropriation, the effect of an item veto is to subtract the item from the larger total. Id. at 587. "The purpose [of the item veto] is to prevent, if possible, the adoption of omnibus appropriation bills, logrolling, the practice of jumbling together in one act incongruous subjects in order to force a passage by uniting minorities with different interests when the particular provisions could not pass on their separate merits." Id. at 589. This is consistent with the requirement that "[n]o bill may embrace more than one subject." N.D. Const. art. IV, § 13. We apply this long-established definition of "item" to each veto below.

         A. Workplace Safety Veto

         [¶ 16] Senate Bill 2018, § 12, provides:

SECTION 12. ENTREPRENEURSHIP GRANTS AND VOUCHER PROGRAM - EXEMPTION. Section 1 of this Act includes the sum of $2, 250, 000, of which $600, 000 is from the general fund and $1, 650, 000 is from special funds, for an entrepreneurship grants and voucher program to be developed and administered by the department of commerce, for the biennium beginning July 1, 2017, and ending June 30, 2019. Of the amount appropriated, $900, 000 is to be distributed equally to entrepreneurial centers located in Bismarck, Fargo, and Grand Forks, $300, 000 to an organization that provides workplace safety, and $300, 000 for biotechnology grants. The department shall establish guidelines to provide grants to entrepreneurial centers certified by the department. The department also shall establish guidelines to award vouchers to entrepreneurs to procure business development assistance from certified entrepreneurial centers or to provide grants to entrepreneurs working with an entrepreneurial center. The amount appropriated for entrepreneurship grants in section 1 of this Act is not subject to section 54-44.1-11 and any unexpended funds from this line item are available during the biennium beginning July 1, 2019, and ending June 30, 2021.

S.B. 2018, § 12, 65th Legis. Assemb., Reg. Sess. (N.D. 2017) (emphasis added). The Governor vetoed the language "$300, 000 to an organization that provides workplace safety." 2017 N.D. Sess. Laws ch. 452.

         [¶ 17] The Legislative Assembly argues that the Workplace Safety Veto struck a condition of the appropriation, without also striking the appropriation itself, and thus was invalid under Olson. The Governor argues the veto was of a separate and distinct appropriation and thus was valid because it struck both the appropriation and the related condition. The core disagreement is whether spending $300, 000 on workplace safety is a condition on the $2, 250, 000 appropriation or whether the $300, 000 is a component item of the larger appropriation.

         [¶ 18] "The governor may veto items in an appropriation bill." N.D. Const. art. V, § 9. An appropriation is the "setting apart from the public revenue of a definite sum of money for the specified object in such a manner that the officials of the government are authorized to use the amount so set apart, and no more, for that object." Olson, 286 N.W.2d at 268. There is no dispute that S.B. 2018 is an appropriation bill, thus any "items" in the bill are subject to the Governor's item veto power.

         [¶ 19] Senate Bill 2018, § 12, set apart from the public revenue the definite sum of $300, 000 for the specified object of an entrepreneurship grant to an organization that provides workplace safety. The Legislative Assembly asserts three arguments that this veto was of a condition. First, the Legislative Assembly argues that because the $300, 000 was not subtracted from the total appropriated funds ($2.25 million), see S.B. 2018, §§ 1, 12, 65th Legis. Assemb., Reg. Sess. (N.D. 2017), the Governor retained the $300, 000 to use at his discretion. See Colorado General Assembly v. Owens, 136 P.3d 262, 267 (Colo. 2006) (" Owens ") ("If the Governor were able to veto an individual item contained within the larger overall appropriation without reducing the overall appropriation by the amount of the vetoed item, the Governor could thereby remove any legislative condition as to how that money could be spent."). The Legislative Assembly contends that the Workplace Safety Veto had the intent and effect of eliminating the condition on the $2.25 million total appropriation (that $300, 000 be distributed to an organization that provides workplace safety) without reducing the total appropriation by $300, 000.

         [¶ 20] For support, the Legislative Assembly cites Owens and Rush v. Ray, 362 N.W.2d 479 (Iowa 1985). In Owens, the Colorado governor vetoed definitional headnotes in appropriation bills, such as "capital outlay," "lease space," and "operating expenses." 136 P.3d at 264. The Supreme Court of Colorado held that the headnotes were not "items" because "they are not sums of money, and they cannot be eliminated without affecting the other purposes or provisions of the long bill." Id. at 267. The headnote veto was beyond the scope of the Colorado governor's item veto power because the headnotes defined terms used throughout the bill and thus were legally interdependent with other parts of the bill. Id. Here, the effect of the Workplace Safety Veto was to eliminate a discrete sum of money not legally interdependent with the rest of the bill.

         [¶ 21] In Rush, the Iowa governor vetoed provisions in appropriation bills that stated "funds appropriated by this Act shall not be subject to transfer or expenditure for any purpose other than the purposes specified." 362 N.W.2d at 480. The Supreme Court of Iowa held that the vetoes were of qualifications on the appropriations, rather than separate items, and thus not subject to the governor's veto power. Id. at 483. This too is distinguishable because the vetoes in Rush struck a condition on appropriated funds but did not also strike the appropriation of money. See Olson, 286 N.W.2d at 270 - 71 (holding that conditions can be vetoed only if the appropriation itself is vetoed).

         [¶ 22] The Workplace Safety Veto is in accord with the longstanding practice in North Dakota. The first partial vetoes were in 1903, after the legislature passed S.B. 22, which appropriated $144, 550 to the State Hospital in Jamestown for the payment of expenses. Olson, 286 N.W.2d at 271; 1903 N.D. Sess. Laws ch. 17, § 1. The governor approved S.B. 22, "except the item appropriating four thousand dollars for beds, bedding and furniture...." 1903 N.D. Sess. Laws ch. 17. This item was one of several items comprising the total appropriation of $144, 550. The 1903 vetoes illustrate that from the early days of statehood it was understood that the subtraction of vetoed items from larger totals was the legal result of an item veto. If accepted, the Legislative Assembly's challenge to the Workplace Safety Veto would invalidate how the state's governors have used the item veto power for more than a century.

         [¶ 23] In Sandaker, the legislature passed a bill that contained twelve items, including the amounts of $6, 960 for the salaries of assistant dairy commissioners and $3, 584 for the salary of the dairy commissioner, among others. 260 N.W. at 587. The governor vetoed all the items, except for the dairy commissioner's salary. Id. We stated that the governor

did not reduce, or pare, or scale, any of these to make an item less than what the Legislature made. He struck out the items entirely.
... It is true he said the total appropriation was reduced to $3, 584 by his act; but this is immaterial. This was merely his answer to a problem in subtraction. The fact is, he disapproved of each of the items in that subdivision except the item of $3, 584. The effect of this was to cut the appropriation for that department to $3, 584.

Id. Here, the Governor struck out the item of $300, 000 in its entirety. The total appropriation for entrepreneurship grants and vouchers, $2.25 million, was not modified by the Governor because the veto power does not include the power to insert words or numbers. The veto power is an eraser, not a pencil. The Governor may strike words or numbers in a bill, but he may not insert them. Id.; see State ex rel. Wisconsin Senate v. Thompson, 424 N.W.2d 385, 388 (Wis. 1988). The Legislative Assembly's argument would permit its strategic drafting to protect an individual appropriation from veto, because vetoing an individual item would not subtract the vetoed amount from the total amount appropriated. According to the Legislative Assembly, this amount remains appropriated and could be spent at the Governor's discretion, which it argues is a result beyond the Governor's veto power. The balance of power would be upset if simply bundling together items in an appropriation bill could effectively eliminate the Governor's item veto authority. Although the Governor lacks the power to alter the mathematical calculations that result from vetoed items, any vetoed items are as a matter of law subtracted from any larger amount in which they are included. Sandaker, 260 N.W. at 587.

         [¶ 24] Second, the Legislative Assembly argues that Section 1, Senate Bill 2018, provides for the appropriation and Section 12 provides for the conditions placed on that appropriation. For support the Assembly cites the North Dakota Legislative Drafting Manual 2017, which provides sample appropriation language similar to Section 1. Compare S.B. 2018, § 1, with North Dakota Legislative Drafting Manual 18 (2017). Further, the Assembly emphasizes that Section 1 is titled "Appropriation" and incorporates appropriation language; whereas, Section 12 refers to "[t]he amount appropriated for entrepreneurship grants in section 1 of this Act...."

         [¶ 25] Although Section 1 contains traditional appropriation language, this does not preclude a conclusion that Section 12 also contains items making an appropriation or providing necessary definition to an appropriation. To conclude otherwise would permit sheltering certain items from a veto by providing for them in any other section other than the traditional appropriation section, Section 1. The Legislative Drafting Manual is a tool for structural consistency, but it does not aid us in determining what is an item subject to veto. Whether or not documented in the Legislative Drafting Manual, structuring an appropriation bill with one large appropriation subject to various conditions specifying individual items on which it shall be spent will not insulate a specified sum allocated to a specified purpose from the item veto. To reject this argument, one need only consider the possibility of an omnibus bill making a single appropriation for the executive branch subject to numerous conditions as to how various included amounts must be spent. SeeFairfield v. Foster, 214 P. 319, 323 (Ariz. 1923) ("If this ...

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