ND lawmakers vote to sue over vetoes, Burgum says suit isn't ‘prudent use’ of tax dollars

BISMARCK - North Dakota lawmakers took another step toward taking Gov. Doug Burgum to court over vetoes he issued a few months ago.

Legislative Management, a powerful interim committee, voted 12-4 Thursday, Sept. 28, to proceed with litigation, a move that some lawmakers said was an effort to clarify the roles of the legislative and executive branches of state government.

"I think we'd be doing a disservice to the people of North Dakota if we leave things unclear, if we leave things unsettled," said Rep. Mike Lefor, R-Dickinson.

In a statement, Burgum, a first-term Republican, said the lawsuit isn't a "prudent use of taxpayer dollars" but his office will "respond accordingly to any legal action that attempts to infringe on executive branch authority."

The vote came after lawmakers met for about an hour behind closed doors to discuss legal strategy. The committee’s chairman, Grand Forks Republican Sen. Ray Holmberg, said it was the first time in modern history that legislators convened an executive session, a move that two lawmakers resisted.

The vote does leave some unanswered questions, including what specific vetoes will be addressed in the lawsuit. Holmberg said it could be months before the Legislature asks the state Supreme Court to take up the case.

But the decision provided clarity in at least one respect. “We are going to sue,” Holmberg said.

In June, Legislative Management initiated the rare but not unprecedented legal battle by voting to move forward with a lawsuit. That came after Burgum vetoed parts of several spending bills after the Legislature adjourned in late April.

In his Thursday statement, Burgum said the vetoes were intended to “protect executive branch authority, preserve the separation of powers and prevent spending of scarce state resources without full legislative review.”

But in an opinion requested by the House and Senate majority leaders, Attorney General Wayne Stenehjem said Burgum overstepped his authority in some cases. Although the state constitution allows the governor to veto items in a budget bill and let other parts become law, Stenehjem said Burgum struck conditions or restrictions on spending without removing the appropriation itself.

In one instance, Burgum vetoed three words from a bill preventing Dickinson State University from discontinuing “any portion of” its nursing program.

“If we believe it’s OK for the governor to selectively delete words and change intent of language, that’s a precedent for the future,” House Majority Leader Al Carlson, R-Fargo, said.

Senate Majority Leader Rich Wardner, R-Dickinson, argued against litigation, although he called the vetoes “petty.”  

“I think we’re really on thin ice whether we’re going to win this,” he said.

John Bjornson, legal division director at Legislative Council, said Wednesday they consulted outside attorneys but haven’t retained one “on a long-term basis.” Randall Bakke and Shawn Grinolds of the Bismarck law firm Bakke Grinolds Wiederholt met behind closed doors with lawmakers to discuss strategy, along with Legislative Council staff.

“It was fairly clear that if we were going to go forward, we would need outside counsel to do the appellate work,” Bjornson said. “None of us are experienced in arguing before the Supreme Court.”

Legislative Council Director Jim Smith said the preliminary legal work will cost about $2,000 plus at least $32,000 going forward. He said budget savings will likely cover the bill.

House Minority Leader Corey Mock, D-Grand Forks, said the legal rift between the Legislature and governor is not on the minds of his constituents, but he called the lawsuit an “appropriate and necessary step.”

“The day may come where a partial veto could change the actions of the Legislature and directly affect the lives of people back home,” he said. “If we don’t establish clarity today, the costs and implications could be so much greater down the road.”