Earlier this week state Attorney General Wayne Stenehjem issued an opinion stating that legislation passed earlier this year to limit the powers of the state Auditor would likely be found to be unconstitutional if it were challenged in court.
Now at least one legislative leader – Senate Majority Leader Rich Wardner, a Republican from Dickinson – is saying lawmakers will respect that opinion which was originally requested by current Auditor Josh Gallion.
“We’ll abide by the ruling,” he said.
That’s quite a turn about for Wardner, who not so long ago submitted a column to SayAnythingBlog.com arguing that lawmakers were absolutely within their legal rights. “This action by the legislature was wholly appropriate and necessary,” he wrote in the post published June 7. “The North Dakota State Constitution states that the powers and duties of the State Auditor come from the legislature. Therefore, the legislature has oversight of the auditor and makes decisions on staff requests, length of audits and the quality of all audits including performance audits.”
Lawmakers have no duty to abide by the Attorney General’s opinion. It’s merely that. An opinion. In fact, not so long ago lawmakers did just that. They sued Governor Doug Burgum over what they felt was an unconstitutional exercise of veto powers, and while they won that argument the courts also delivered them a set back, pointing out that certain legislative committees were trying to exercise executive branch powers which is also unconstitutional.
Ironically, that precedent was part of Stenehjem’s argument in saying the limits on the Auditor’s powers were unconstitutional.
Anyway, Wardner and the rest of the Republican and Democratic lawmakers who voted to gut the powers of the auditor have egg on their collective faces. Though they claim now their intent was never punitive, that it was never about trying to put an aggressive Auditor in a box, that justification simply doesn’t ring true. Gallion has made waves since coming into office. I’ve heard numerous state lawmakers complain about him with my own ears. It was always about knocking him down a rung or two.
But now the Legislature has been hoisted on their own petard, caught trying to curtail executive branch powers in a manner unconstitutional per a legal precedent set just last year by their own lawsuit.
And by the way, there is some egg for Governor Doug Burgum’s face too. He’s the leader of the executive branch. He could have defended executive branch authority by vetoing this legislation. He didn’t. Instead he bought into the justification for it coming from lawmakers. Really, he may have been spending a bit too much time thinking about the time Auditor Gallion took a close look at his office’s travel expenses.
So what happens going forward?
For one thing, I don’t think we can rely on the forbearance of state lawmakers. They say now they’ll abide by the AG’s opinion as they go about their business, but that doesn’t take this legislation off the books. The folks at Audit the Swamp should continue their referendum effort.
Short of that, lawmakers should be pressured to repeal this legislation in their 2021 session.