916 N.W.2d 83
N.D.2018Background
- Governor Burgum issued five partial vetoes to appropriation bills after the 2017 legislative session; the Legislative Assembly challenged those vetoes in this Court and sought declaratory relief or mandamus.
- The Attorney General opined three of the vetoes were ineffective because they vetoed conditions on appropriations rather than appropriations themselves, and also warned two vetoed provisions raised separation-of-powers concerns.
- The Court exercised original jurisdiction to resolve justiciability and the merits because the disputes affect core separation-of-powers and budgetary authority.
- The key contested vetoes addressed: (1) a $300,000 line-item to a workplace-safety organization (Workplace Safety Veto); (2) removal of language from a legislative intent clause about credit-hours (Credit Hour Veto); (3) deletion of the phrase “any portion of” restricting program discontinuance (Any Portion Veto); and (4) budget-section approval conditions that required committee approval before transfers or spending of portions of appropriations (Water Commission and IT Project Vetoes).
- The Court treated (and resolved) standing and justiciability questions: the Legislature has standing to defend encroachment; the Governor and Attorney General may press cross-petitions challenging legislative delegations to a budget committee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Workplace Safety Veto (striking “$300,000 to an organization that provides workplace safety”) | Veto improperly struck a condition on a larger appropriation and left the appropriation intact, so invalid under Olson | Veto struck a distinct, enumerated monetary item and thus is a lawful item veto; vetoed amount is subtracted from the total | Valid. The $300,000 was an item: the veto is within the Governor’s item-veto power and reduces the larger appropriation by that amount |
| Validity of Credit Hour Veto (deleting phrase in legislative-intent clause) | Governor exceeded veto power by altering a statement of legislative intent (Legislature’s prerogative) | Governor can veto items in appropriation bills, including non-money provisions mixed in; but contested here | Invalid. The Governor may not selectively alter a legislative statement of intent; veto ineffective and intent clause remains intact |
| Validity of Any Portion Veto (deleting “any portion of” restricting program cuts) | Veto modified condition on appropriation (protecting program continuity) and thus exceeded power | Governor conceded invalidity but argued AG opinion made veto ineffective — Governor cannot withdraw veto | Invalid. Veto altered a condition rather than striking an appropriation; ineffective and the statute stands unmodified |
| Constitutionality of budget-section approval conditions (Water Commission and IT Project: committee approval to transfer/authorize spending) | Legislative-design: conditions necessary for oversight and flexibility between sessions; committee role is limited fact-gathering | Governor/AG: provisions unlawfully delegate legislative power and impermissibly let a legislative committee exercise executive functions | Held in two parts: (a) Non-delegation — both budget-section provisions are unconstitutional for lack of guiding standards; (b) Separation of powers — budget-section approval is an impermissible retention of executive administration by a subset of the Legislature. The Court struck the budget-section conditions and (for Water Commission) also struck the water-commission transfer authority dependent on that approval; for the IT project the conditional sentence was severed and the full appropriation remained |
Key Cases Cited
- State ex rel. Olson v. Olson, 286 N.W.2d 262 (N.D. 1979) (limits governor’s partial-veto power; cannot veto conditions on appropriations without vetoing the appropriation)
- Sandaker v. Olson, 260 N.W. 586 (N.D. 1935) (item veto subtracts vetoed items from aggregated appropriations; vetoer may delete but not insert)
- County of Stutsman v. State Historical Soc. of North Dakota, 371 N.W.2d 321 (N.D. 1985) (delegation valid where statute contains reasonably clear standards)
- Nord v. Guy, 141 N.W.2d 395 (N.D. 1966) (invalid delegation where legislature failed to provide guiding rules)
- Kelsh v. Jaeger, 641 N.W.2d 100 (N.D. 2002) (distinguishing executive fact-finding from unconstitutional delegation)
- Trinity Medical Center v. North Dakota Board of Nursing, 399 N.W.2d 835 (N.D. 1987) (power to appropriate money is purely legislative)
- INS v. Chadha, 462 U.S. 919 (1983) (one-house legislative veto violated bicameralism and presentment)
- Bowsher v. Synar, 478 U.S. 714 (1986) (Congress impermissibly retained executive power through an officer removable only by Congress)
- Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991) (conditioning executive transfer on creation of a legislative review board impermissibly encroached on executive function)