Sean Foss: For AG Stenehjem, Legal Philosophy Depends on Preferred Policy Outcomes


FILE PHOTO: North Dakota Attorney General Wayne Stenehjem. (Eric Hylden/Grand Forks Herald)

This guest post was submitted by Fargo attorney Sean Foss.

For many conservatives, the late Justice Antonin Scalia is the gold-standard for a jurist. Scalia was famous for his so-called originalist approach to the Constitution, where he attempted to apply the Constitution based upon what he believed was the original intent of its authors. Less know but equally important was his view on statutory interpretation.

Specifically, Scalia abhorred the concept of interpreting legislative intent, where a court attempted to go beyond the text of a statute and discern what the legislature truly meant, not necessarily what it specifically said. As Scalia wrote in Conroy v. Aniskoff, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not the intentions of legislators.” 507 U.S. 511, 519 (1993) (emphasis added). Scalia’s approach is referred to as textualism, where the sole focus is upon the text of a statute, not the intentions of the legislators who passed the statute, no matter how clear or muddled those intentions might be.

I mention Scalia after reviewing recent opinions from Attorney General Wayne Stenehjem, whose legal philosophy appears more focused on reaching preferred policy outcomes than taking any specific view of interpreting the law. On some occasions, Stenehjem’s philosophy leads to an application of textualism, while in others, he ignores the unambiguous language of the statutes to provide his interpretation of the Legislature’s intent, which ultimately achieves the apparent policy goal.

On April 3, 2018, Stenehjem issued an opinion to Mylynn Tufte, the State Health Officer, regarding “whether corporations or limited liability companies that apply with the Department of Health to obtain a license to produce and process medical marijuana must comply with North Dakota’s corporate farming law.”

To answer this question, one must first understand North Dakota’s general prohibition against corporate farming. Under N.D.C.C. § 10-06.1-02, “[a]ll corporations and limited liability companies, except as otherwise provided by [N.D.C.C. ch. 10-06.1], are prohibited from owning or leasing land used for farming and ranching and from engaging in farming and ranching.” “Farming” is defined to include “cultivating land for production of agricultural crops . . . fruit or horticultural products.”

Now, if a person wishes to cultivate marijuana and sell it for medicinal purposes, it would seem pretty clear that constitutes “farming” and the corporate farming prohibition applies. Of course, this is a problem for an entrepreneur who wants to start that very business, as such person would likely want the benefits of being able to incorporate. Thankfully, AG Stenehjem came to the rescue to achieve the desired policy outcome of allowing corporations to grow marijuana for commercial sale despite the plain language of the state’s prohibition on corporate farming.

Stenehjem’s opinion actually acknowledges “[t]he production of medical marijuana is, by definition, the cultivation of a medicinal plant; it is within the plain, ordinary, and commonly understood meaning of what constitutes the practice of horticulture,” and “[t]he Legislature did not exempt marijuana grown under N.D.C.C. 19-24.1 from the definition of ‘farming or ranching’ in N.D.C.C. § 10-06.1-01(1).” One would think his analysis would end there, but Stenehjem perseveres beyond the plain language of the statutes.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]From a review of Stenehjem’s opinions, it is difficult if not impossible to read them and discern a judicial philosophy other than one that is driven first and foremost by policy outcomes.[/mks_pullquote]

The opinion continues by noting that the statute governing “compassion centers” that can apply for approval to produce medical marijuana must produce articles of incorporation or articles of organization to the Department of Health as part of the application process. See N.D.C.C. § 19-24.1-14.

By implication, Stenehjem opines, the Legislature intended to provide an exception for corporations or LLC’s that want to be medical marijuana compassion centers, because they must be corporations or LLC’s to have articles of incorporation or organization. From an outside prospective, the apparent disconnect between the two statutes is a legislative problem, not a judicial one. The corporate farming law is clear, regardless of whether the Legislature really meant to add an exception for corporate marijuana farming. Rather than wait for the Legislature to fix the mistake, Stenehjem has effectively taken care of it for them.

But its even worse than that. The corporate farming prohibition actually has an exception for closely-held, family-owned corporations and limited liability companies. See N.D.C.C. § 10-06.1-12. As a result, the corporate farming and medical marijuana laws can be read together quite easily to continue the state’s general prohibition against corporate farming while allowing closely-held, family-owned corporations and limited liability companies to apply to be compassion centers, growing and selling medical marijuana. By ignoring this fact, Stenehjem’s opinion goes beyond anti-textualism and approaches something akin to willful ignorance.

The same anti-textualism also reared its head in a December 2017 opinion regarding North Dakota’s new concealed carry law. In that opinion, Stenehjem once again did the Legislature a favor by going above-and-beyond the actual language of a statute to find a deeper intent that the Legislature itself never expressed much less passed into law.

When the Legislature passed the so-called “constitutional carry bill” that allowed persons meeting specified qualifications to carry a firearm without a concealed weapons license, it failed to amend the statute that requires a concealed weapons license in order to carry a loaded gun in a vehicle. As a result, from a plain reading of the statutes, one might be able to carry a loaded, concealed weapon everywhere but a vehicle. While I am sure this was an oversight by the Legislature, that is another legislative problem. From a judicial standpoint, the interpretation of the statutes was not complex: N.D.C.C. § 62.1-02-10(3) required a concealed weapon’s licensed to carry a loaded gun in a vehicle regardless of whether the person was qualified to carry a firearm under the constitutional carry bill.

To be clear, North Dakota still has a procedure to obtain a concealed weapons license even after the constitutional carry law, so Stenehjem could not say the license was no longer available and the statute was impossible to comply with. Instead, Stenehjem issued another anti-textual opinion to achieve a preferred policy outcome based upon so-called legislative intent. The opinion even includes a footnote stating the Legislature “should amend” the statute on carrying loaded guns in vehicles “to clarify its meaning.” A clarification is not necessary, as the statutes themselves are clear. But the footnote is clearly a wink to the Legislature that the statutes do not actually support the AG’s opinion, and it should pass an amendment to make the change it apparently forgot to make in the first place.

To be fair, Stenehjem’s opinions are not anti-textual on the whole. In 2012, Stenehjem issued an opinion on whether North Dakota’s public meeting laws require public entities to hold their meetings inside the state in order to qualify as being open and accessible to the public. Stenehjem’s opinion was in response to a meeting of the NDSU Research Park that took place in Minneapolis, and just last year the NDSU Foundation and Alumni Association held a “public” meeting in Florida.

Under N.D.C.C. § 44-04-19, “[e]xcept as otherwise specifically provided by law, all meetings of a public entity must be open to the public.” Stenehjem’s opinion notes “[a] meeting must be accessible to the public to be considered open.” The question then becomes: what is considered accessible to the public? Based upon the above-referenced opinions, one may be surprised Stenehjem’s next question was not: what did the Legislature intend by requiring meetings be accessible to the public? However, instead of asking such question, the AG’s opinion notes the plain language of the statutes do not specifically require public meetings of North Dakota governmental entities occur in North Dakota, and the public business of such entities may involve out-of-state interests. As a result, Stenehjem opined that North Dakota governmental entities could hold public meetings out of state. At no point did Stenehjem’s opinion address whether the Legislature really meant that a public meeting must be held inside the State.

From a textualist standpoint, Stenehjem’s opinion on public meetings is correct. The law does not specifically require public meetings of North Dakota governmental entities take place in North Dakota, just that they are open and accessible to the public wherever the meetings might take place. From a policy standpoint, it sure seems foolish to require meetings of North Dakota governmental entities to be open to the public, but to allow those meetings to take place in Florida and elsewhere. Yet, for whatever reason, Stenehjem did not dive into the supposed intent of the Legislature in passing the open meetings law. Whether Stenehjem did not have a specific preferred policy outcome, or a textualist approach achieved his preferred outcome, I cannot say. But the judicial philosophy is starkly different than the two above-referenced opinions.

The policy-focused nature of Stenehjem’s actions can also be seen in the litigation pursued by the AG as well. For more than six years, the AG has litigated the case of Wilkinson v. State, wherein private landowners and the State have made competing claims over the ownership of minerals under Lake Sakakawea. While the State’s original position may have been arguably valid to clarify the ownership, Stenehjem has continued to press forward despite clarifications to the law that have disclaimed the State’s alleged ownership interest. Specifically, the AG has continued to press forward after the Legislature passed a new law to make clear the mineral rights are owned by the persons who owned the land at the time of the formation of the lake or their successors. Stenehjem has also pressed forward after the ND Supreme Court issued an opinion reversing a district court’s decision in the State’s favor. To date, more than six years after it started, the Wilkinson case has not been finally resolved.

From a review of Stenehjem’s opinions, it is difficult if not impossible to read them and discern a judicial philosophy other than one that is driven first and foremost by policy outcomes. While his practical approach may be preferred by some, others will see it as a form of judicial activism. If Stenehjem’s opinions are supported by a majority of his fellow GOP members, it may not be a political problem. But it is a judicial one. So long as Stenehjem feels free to go beyond the plain language of statutes and reach for intent that is not present in the language of the laws themselves, he is usurping powers that rightfully belong to the Legislature.