Will Doug Burgum’s Victory at the State Supreme Court Mean Yearly Legislative Sessions for North Dakota?


House Majority Leader Al Carlson, R-Fargo, foreground, sits in the gallery at the North Dakota Supreme Court as state Attorney General Wayne Stenehjem, middle, and Gov. Doug Burgum confer during legal arguments presented to the five justices in the case involving the challenge by lawmakers of Burgum's issuing five vetoes on parts of spending bills passed in the 2017 legislative session. 3-19-2018

Earlier this year the state Supreme Court issued in opinion in ND Legislative Assembly vs. Governor Doug Burgum which found that both sides of that dispute had been operating beyond their constitutional restraints.

The court struck down four of Burgum’s vetoes from the 2017 legislative session, but they also found that the Legislature itself had delegated too much authority to their Budget Section committee.

The Budget Section has 42 members, and is typically given power to make decisions about the budget (as you might have guessed from its name) in between regular legislative sessions which only happen during odd-numbered years. It’s been a convenient way to make policy decisions during the interim without the time and cost burden of bringing the full Legislature back to Bismarck.

But the courts said empowering the Budget Section that way is illegal for two reasons.

First, it’s a separation of powers issue. The legislature cannot legislate without involving the governor who has the ability to sign bills or veto them.

Second, it’s problem within the Legislature itself. The 42 members of the Budget Section do not represent a quorum of the full Legislature, and thus cannot unilaterally legislate.

This may all seem like real down-in-the-weeds political nerd stuff, except a limited Budget Section has real implications for how our state is governed, as we saw just yesterday. The North Dakota Highway Patrol wants to get started on a drone program for search and rescue operations, and while there was pretty much unanimous agreement for the project from the Budget Section they still voted it down, citing the court’s decision in Assembly vs. Burgum:

Highway Patrol superintendent Brandon Solberg requested $45,000 so Highway Patrol could get two types of drones, one for search and rescue and one for accident reconstruction.

“I feel like we’re behind the times operationally as far as having equipment like this. It wouldn’t take a lot for us to get up to speed and get operators trained. We’re talking about six drones,” said Solberg.

But the vote was 18-16 against his appropriation. Some members of budget section were concerned a recent state Supreme Court ruling removed the committee’s ability to make spending approvals or changes. Legislators don’t agree on the interpretation.

As you can tell by the split vote, not everyone agrees that the Budget Section is constrained in this way. “They have the money in their budget, it’s not a new appropriation. All we’re doing is giving them the authority to go ahead and spend that, and so I think that is specific to the jobs we can do,” Senate Minority Leader Joan Heckaman is quoted as saying at the link.

But can the Legislature delegate the authority to give that sort of authorization? In light of the court’s decision, I’m not sure they can, but yet those sort of decisions do need to be made in the interim.

The Legislature cannot effectively govern in our state if they’re only able to make legislative decisions for one 80-day session every two years.

The solution is to either amend the state constitution to allow the Legislature to delegate its authority or have the full Legislature meet more often.

The latter option has had proponents for years. Bills to do just that have been introduced in past sessions, though they haven’t been successful. Some have even argued that no legislation is necessary. All the constitution says of the matter is that the Legislature cannot meet for more than 80 days in a two-year cycle, and that they must start a session in the January of odd-numbered years.

Lawmakers could split those 80 days into annual sessions, though logistically I’m not sure that’s very practical for a number of reasons.

Still, this is a problem in need of solving.