Yesterday, Attorney General Wayne Stenehjem issued his opinion regarding “the constitutionality of amendments contained in section 3 of Senate Bill 2004 passed by the 66th Legislative Assembly.” As you’re likely aware of by now, the North Dakota Legislature voted in the final days of the recent Legislative Session to strip the State Auditor of his authority to initiate performance audits. And despite calls for Governor Doug Burgum to veto the effort, he signed off on it instead.
In the days that followed the power grab — which, by the way, was done as a means of “reeling in” current State Auditor Josh Gallion — two important events took place. Gallion requested an Attorney General’s opinion on the issue and he met with our State Legislature’s Majority Leaders, Senator Rich Wardner (R – District 37) and Rep. Chet Pollert (R – District 29) to discuss the matter. It was during that meeting that Senator Wardner announced that the legislature wouldn’t reconvene to deal with the issue, but would kick the can down the road to the next Legislative Session.
In my opinion, the decision not to reconvene was a shameful move of political posturing in which Wardner simply wanted to exert his perceived power over the situation. This was further evidenced when he wrote a Letter to the Editor in which he defended the legislature’s move— after claiming he didn’t know what was in the bill when he voted on it.
There’s no question that this has been the hot political topic in the days following the Legislative Session. Further evidence of this can be found in the referral effort taking place as a result of the legislation. And heck, we even had the Department of Public Instruction getting caught in a lie on an audit, which led to their spokesman calling Gallion “unprofessional”— for doing his job, I guess. Its been quite a ride and virtually every turn has proven that we need an independent State Auditor.
Throughout all of this — and more — we’ve been waiting to finally hear the opinion from our Attorney General. And now we finally have it. If I could describe it in one word, I think I’d settle on “scathing”. Let’s not forget that Wayne Stenehjem is typically hesitant to comment on the constitutionality of things— a fact he points out himself in the opinion:
“Because it is the Attorney General’s role to defend statutory enactments from constitutional attacks, this office is ordinarily reluctant to issue an opinion questioning the constitutionality of a legislative enactment.” (Emphasis Added)
Yet, in the very first paragraph, he says this:
“… it is my opinion that if a court were to rule on this matter, it is likely that it would determine that the amendments contained in subsections 2 and 4 of section 3 of S.B. 2004 are unconstitutional as a violation of the separation of powers doctrine.”
I’ll leave the entirety of the 10-page document to you, but Stenehjem’s arguments for the power grab being unconstitutional are essentially based off the following:
“… it is my opinion that if a court were to rule on this bill, it would likely determine it is a violation of the ‘improper legislative delegation’ theory of the separation of powers doctrine for failure to iterate reasonably clear guidelines or a sufficiently objective standard.”
“Given, however, that the crux of section 3 of S.B. 2004 is the retention of control by the Legislative Assembly, through its agent, [Legislative Audit and Fiscal Review Committee], over an executive power and duty, the violation of the legislative encroachment theory of the separation of powers doctrine is likely the greater flaw, which would lead to a court determining this amendment unconstitutional.” (Emphasis Added)
Perhaps the best summary of what Stenehjem lays out is found in these words:
“The power to make a law is legislative, but the power to administer or execute the law under the provisions of the law itself, as enacted by the legislature, is executive.”
And then this— which is undoubtedly one of my favorite parts of the opinion:
“In addition to implicating the separation of powers doctrine under the legislative encroachment theory, of concern is the bill inserting legislative oversight into core and inherent functions of a constitutional executive office, specifically, the ability of the Office of the State Auditor to conduct independent audits.”
This is spot on. And those of us who have opposed this move by the legislature have been saying it all along.
Over and over again, Attorney General Wayne Stenehjem expresses his opinion that the move by the legislature to strip State Auditor Josh Gallion of his authority to initiate performance audits was unconstitutional. And every time he expresses the view, he backs it up with solid legal arguments.
So, what does this mean going forward? According to Say Anything Blog, we now know that State Auditor Josh Gallion intends on moving forward as he has been— meaning he plans on ignoring the law. This is key. And when it comes to the legislature — more specifically leadership and Legislative Management — they are now left with three options:
- Sue the State Auditor.
- Let Gallion proceed as he plans and address the issue during the 2021 Legislative Session.
- Reconvene and resolve the issue now.
In my mind, suing the State Auditor would only make matters worse for the legislators who supported this in the first place. Not only has this been problematic for them already, but filing a costly lawsuit — especially in light of Stenehjem’s opinion — wouldn’t make for happy taxpayers.
What Senator Wardner and his cohorts in Bismarck need to admit is that they screwed up— big time. The AG’s opinion says as much. In their effort to send a message to the State Auditor, they proved one thing— it’s not Josh Gallion who needs to be reeled in. They need to right their wrong.
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