After attorney general deems restrictions likely unconstitutional, North Dakota auditor to conduct 'business as usual'
BISMARCK — North Dakota State Auditor Josh Gallion said his office will conduct "business as usual" after Attorney General Wayne Stenehjem argued the state Legislature's move to place limits on the government fact-finders are likely unconstitutional Friday, June 28.
In an opinion requested by Gallion, Stenehjem argued a court would find that a new law requiring the auditor to receive lawmaker approval to conduct performance audits violates the separation of powers doctrine. Performance audits are known to hone in on specific issues within agencies and have alleged an array of bookkeeping mistakes, inappropriate uses of state resources and ethical concerns.
"The ability of the executive branch to function, independent of the Legislative Assembly, is a core tenet of the three-branch system of government," Stenehjem wrote.
Lawmakers added the amendments to the budget bill for Gallion's office in the waning days of this year's legislative session, catching the Republican auditor and at least some lawmakers by surprise. Senate Majority Leader Rich Wardner, R-Dickinson, previously said lawmakers wouldn't return to Bismarck for a special session to address the restrictions, but a citizen group has launched a petition seeking to overturn the Legislature's actions through the ballot box.
In an interview, Gallion praised the "very well-written" opinion and said he was evaluating next steps. But he said "it would be improper to follow an unconstitutional law."
The new restrictions are set to take effect Monday. Stenehjem said his opinion "governs the actions of public officials" until the issue is decided by the courts.
Wardner said Friday morning he had not fully examined Stenehjem's opinion, but he said he was "surprised." He said he asked legislative staffers for a review and that he would visit with House Majority Leader Chet Pollert, R-Carrington.
"We'll see where we go from here," Wardner said. "It's too early to tell."
Pollert said Friday afternoon he had not yet read the opinion but had "concerns" about it based on what he had heard from others. He hoped Gallion would notify lawmakers before launching a performance audit, calling for "open communication."
Lawmakers have offered varying explanations for requiring their blessing and have tied the move to budget discussions and the need to improve communication, but some have acknowledged the new auditor has been more aggressive than his predecessor.
Republican Rep. Keith Kempenich, a member of the House's budget-writing committee, previously said it was at least partly intended to “slow the process up." Wardner said last month lawmakers were used to audit reports being posted more "quietly" until the Legislative Audit and Fiscal Review Committee met. That panel keeps tabs on the auditor's work and was tasked with signing off on his requests for performance audits.
Gallion has been unapologetic about how he has run the office since first winning the statewide seat in 2016.
In his opinion, Stenehjem said his office has been reluctant to question legislative actions because his role is to defend the enactment of new laws from "constitutional attacks."
But the Republican attorney general cited a recent state Supreme Court case involving a separation of powers dispute between GOP Gov. Doug Burgum and the Republican-controlled Legislature. Justices found that the Legislature had given a subset of its members too much power.
"The Legislative Assembly violates the separation of powers doctrine under this theory when it retains discretion and control over the execution of enacted legislation, thereby encroaching upon the role of the executive branch," Stenehjem wrote.
The auditor is one of 13 statewide elected officials written into the state constitution, but his or her "powers and duties" must be prescribed by law.
In a recent letter to the editor , Wardner cited that language in arguing that the Legislature's actions were "wholly appropriate and necessary." He said "the Legislature has oversight of the auditor and makes decisions on staff requests, length of audits and the quality of all audits including performance audits."
"The North Dakota State Constitution and Century Code clearly defines that the auditor works at the discretion of the Legislature," Wardner added.
But Stenehjem said the state Supreme Court has found that the constitution doesn't allow lawmakers to "transfer inherent or core functions of executive offices from the elected officer."
"Some of the core, inalienable duties of constitutional offices are evident from the title of the offices themselves," he wrote.