‘Prudent remedy' for veto error is special session, Legislative Council advises
Legal staff for North Dakota's legislative branch concluded the 'prudent remedy' to correct an error with Gov. Kelly Armstrong's line-item veto would be for the governor to call a special session, according to a memo issued Friday.
But Attorney General Drew Wrigley, who is working on a separate opinion, maintains that Legislative Council has no role in determining the execution of the governor's veto.
Armstrong announced May 22 a 'markup error' with a line-item veto that crossed out $35 million for a state housing development fund. The red X over the funding did not match what Armstrong indicated in his veto message that explained his reasoning.
North Dakota governor unintentionally vetoes $35 million for housing programs
A Legislative Council memo distributed to lawmakers Friday concluded that legal precedent supports the marked-up bill as the official veto document. 'Engaging in interpretive gymnastics' to disregard the markings on the bill could lead to unintended consequences in the future, Legislative Council concluded.
Emily Thompson, legal division director for Legislative Council, said the Legislature needs to have an objective document to clearly illustrate what was vetoed, such as the specific veto markings on the bill, so lawmakers can exercise their veto override authority effectively.
Lawmakers have six days remaining in their 80-day limit and could call themselves back into session to address the veto. However, the memo cautions that the Legislature may need those days to reconvene to respond to federal funding issues or other unforeseen reasons. Legislative Council recommends the governor call a special session, which would not count against the 80-day limit.
A special session of the Legislature costs about $65,000 per day, according to Legislative Council.
Armstrong is waiting for an attorney general's opinion to determine the next steps, according to a statement from his office. He previously said he would call a special session if necessary.
Wrigley said Friday it's up to his office to assess the situation and issue an opinion on the governor's question.
'The power in question is strictly the governor's power and it has to be in compliance with the constitution and laws of North Dakota,' Wrigley said. 'That's the only assessment here. There's no role for this in Legislative Council. They have no authority in this regard.'
Armstrong on May 19 issued two line-item vetoes in Senate Bill 2014, the budget for the state Industrial Commission. His veto message explained his reasons for objecting to a $150,000 one-time grant for a Native American-focused organization to fund a homelessness liaison position. But the marking also crossed out $25 million for housing projects and programs and $10 million to combat homelessness, which he later said he did not intend to veto.
Chris Joseph, general counsel for Armstrong, wrote in a request for an attorney general's opinion that the markings served as a 'color-coded visual aid,' and the veto message should control the extent of the veto.
Wrigley said his office is working on the opinion and aware that resolution of the issue is time sensitive.
Bills passed by the Legislature with appropriations attached to them, such as the Industrial Commission budget, go into effect July 1.
'I look forward to publishing my opinion on that at the earliest possible time,' he said.
The Legislative Council memo states, 'It would not be appropriate to allow the governor and attorney general to resolve the ambiguity by agreement.'
In addition, Legislative Council concluded that if the governor's veto message is to be considered the controlling document for vetoes in the future, more ambiguities would likely be 'inevitable and frequent' and require resolution through the courts.
The memo cites a 2018 North Dakota Supreme Court opinion involving a case between the Legislature and then-Gov. Doug Burgum that ruled 'a veto is complete and irrevocable upon return of the vetoed bill to the originating house,' and further stated the governor does not have the power to 'withdraw a veto.'
'Setting a precedent of the attorney general issuing a letter saying we can just go ahead and interpret the governor's veto message to mean what was, or was not, vetoed, that's a really concerning precedent to set,' Thompson said in an interview.
Wrigley said any issues resulting from the opinion could be addressed by the courts.
'I sincerely hope that they (Legislative Council) are not trying to somehow publicly advocate, or attempt to influence a process for which they have no role,' Wrigley said.
Legislative Council memo
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