The mess gets messier

The confusion over the recent veto error by the Governor has just taken a turn for the worse as a new Attorney General’s Opinion muddies the water even more.

Governor Kelly Armstrong made an admitted error in a line-item veto, which we called “The Big Oops” and later reportedly indicated that he was willing to call a Special Session of the Legislature to correct it.

Meanwhile, Legislative leadership did the appropriate thing in seeking legal counsel about how to best resolve the issue.  The North Dakota Legislative Council responded, indicating that the only real way to resolve the conflict responsibly was a Special Session of the Legislature (which Legislative leadership believes could resolve the matter in as little as one day).

Unfortunately, as we reported here, the inherent tensions between branches of government (which we’d also written about) were stoked. Attorney General Drew Wrigley issued a public pronouncement dismissing the Legislative Council’s advice and, essentially, scolding the office for even rendering legal advice when his office was in the process of preparing its pronouncement (never mind that responding to a request for legal guidance from the Legislature is exactly the job of the Legislative Council).  Apparently, when the Attorney General prepares to opine, all others must be silent…at least according to him.

The Attorney General wasted no time rendering his Opinion, perhaps in hopes that it would quell the matter or perhaps because there is little substance in the Opinion and, therefore, little research and legal work necessary to prepare it.

Most official Opinions rendered by North Dakota Attorneys General are well researched and footnoted with statutory and/or Constitutional references, as well as citations of court cases and/or previous AG Opinions.  This one seems to rest upon nothing but a fleeting reference to the Constitutional veto authority of the Governor, which is not the question at all, and which all acknowledge.

The question in this matter was how to resolve a clear, admitted mistake by the Governor’s office and avoid resulting confusion over such potential future conflicts.  Instead, the AG has opined that everyone should simply accept what the Governor intended and ignore what he actually did.  That frightening position is reminiscent of the famous “pay no attention to that man behind the curtain” line from the Wizard of Oz!

The Plot Thickens

• Not only did the Governor make an admitted error in what he actually vetoed (the actual language stricken from Senate Bill 2014), which struck $35 million from the budget of the Industrial Commission…
• Not only did his “objection letter” describe his contradictory intent to only veto $150,000 from that section of the budget…

But another letter — described as the Governor’s “transmittal letter” — issued along with the vetoed language and the “objection letter” coincided with the actual vetoed language, stating that he was, in fact, vetoing the entire section stricken and the $35 million appropriation it contained.

This means that two out of three documents submitted by the Governor, relative to the veto in question, agree that the entire section was vetoed, while only one of the two letters conflicts, referencing the veto of only a small portion of the section.

Now, both the Attorney General and the Governor insist, while offering no substantive legal reasoning for their position, that everyone should simply ignore the error, ignore the two documents which conflict with their single favored one, and move on.  

Another issue which may have escaped the notice of most is that the bill in question also funds the Industrial Commission, which is made up of three state officials and that two of them are the Governor and the Attorney General.  In other words, it’s the funding of an entity which they oversee which is in question here.  Does that represent a conflict of interest?

Rather than settling questions, the Attorney General’s Opinion and the Governor’s quick embrace of it, have only raised more questions.

Legislative Management will meet soon to determine how to respond.  As they were advised by their legal counsel, the only responsible thing to do for the resolution of this issue and the avoidance of future confusion and potential litigation is to call the Legislature back into Special Session to actually fix the Governor’s error.  It’s too bad that those in the Executive Branch didn’t come to the same conclusion, but this week’s actions have made it clear who the adults in the room are.

By placing the Legislature in this corner, rather than cooperating to correct its own error, the Governor has also weakened his position.  Potentially forcing the Legislature to fix his error could actually backfire, from his perspective, as the Legislature could override all or a portion of his action.  He’s also placed himself in jeopardy of others of his line-item vetoes enduring more scrutiny and potential override, should the Legislature reconvene.

The Legislature will hopefully do what it needs to do and what its legal counsel has advised.

The best course to avoid such costly showdowns in the future is for the Legislature to plan for a brief “veto session” at the conclusion of each biennial legislative session, as many states do.  That’s apparently also the only effective way for North Dakota to efficiently exercise the checks and balances inherent in the separation of powers.