By: Michael Achterling (ND Monitor)
Attorneys for the North Dakota Legislature on Thursday rebuked an attorney general’s opinion of a veto error and outlined possible next steps, which could include a special legislative session or legal challenges.
Lawmakers asked Legislative Council to research options after an error with a line-item veto Gov. Kelly Armstrong issued May 19 in the budget for the state Industrial Commission.
Armstrong’s veto message said he objected to a $150,000 one-time grant for a Native American-focused organization to fund a homelessness liaison position. But his staff also crossed out $25 million for housing projects and programs and $10 million to combat homelessness in a bill markup, which he later said he did not intend to veto.
Armstrong asked Attorney General Drew Wrigley for his office’s opinion on whether the veto message would be considered the official document instead of the marked-up bill.
Wrigley found that the unintentional markup does not change the substance of the veto because Armstrong’s written veto message was “clear and unambiguous” about what parts of Senate Bill 2014 he intended to cut.
Lawmakers and the governor agree that the $35 million should be spent, but legislators are worried about the precedent that would be set and possible future implications.
Emily Thompson, legal division director for the Legislative Council, pushed back on the findings of the attorney general’s office in a new memo presented to the Legislative Management Committee Thursday.
The analysis called the attorney general’s opinion inconsistent with the state constitution, judicial precedent, a previous attorney general’s opinion and the practice of former governors.
Thompson pointed out that Wrigley’s opinion did not mention the most recent North Dakota Supreme Court precedent that involved a similar issue with former Gov. Doug Burgum.
In that case, the court stated the governor may strike words or numbers while exercising a veto, but may not insert them. Thompson argued Wrigley’s opinion is in direct contrast to the court’s ruling.
She said the opinion sets a precedent allowing the governor and attorney general to come to an agreement on what the governor intended to veto. Thompson said future governors could write extremely vague veto letters.
“You have more or less two members of the executive branch determining what was or wasn’t vetoed based on the agreement on what that intent was,” she said.
The Attorney General’s Office did not respond to requests for comment Thursday on the new Legislative Council memo. Wrigley previously said Legislative Council has no role in determining the exercising authority of the governor’s veto.
Senate Majority Leader David Hogue, R-Minot, said he and House Majority Leader Mike Lefor, R-Dickinson, plan to talk to Wrigley about the opinion.
“I assume there’s no prohibition on us going to the attorney general and saying, ‘Are you sure?’” Hogue said.
The $35 million in housing funds are set to be disbursed as soon as Tuesday when the new fiscal year begins. Armstrong said in a news release after Wrigley’s opinion was issued that the $35 million “will be disbursed as approved.”
Lawmakers questioned how the full $35 million could advance when Armstrong said he intended to veto $150,000 of that.
“That’s a headscratcher,” Hogue said.
Lawmakers directed Legislative Council to do additional research over the next seven days to help them determine next steps. Thompson presented some options to legislators:
A special session of the Legislature costs about $65,000 per day, according to Legislative Council. However, members of the Legislative Council said attorney’s fees for a court case could rise to that level or surpass it.
Lawmakers did not make a decision Thursday but appeared inclined to take some kind of action.
“We’re dealing with the separation of powers, which is a really important thing,” said Sen. Janne Myrdal, R-Edinburg.
Speaker of the House Rep. Robin Weisz, R-Hurdsfield, said legislative leaders hope lawmakers won’t have to return to Bismarck for a special session. But he also recognizes the importance of protecting the Legislature’s authority.
“Some things were ignored in the opinion,” Weisz said. “It’s up to us to make sure that we keep our authority as the Legislature and we need to understand what the governor is vetoing and not have to rely on, ‘OK, what did he veto? Well, I guess the AG will tell us what he vetoed.’ It’s not the way it’s supposed to work.”
