MINOT, N.D. — There is a legal food fight looming over the election results in North Dakota's District 8 House race.
Dave Andahl, one of the Republican candidates in that district, died in early October from issues related to COVID-19. Gov. Doug Burgum has appointed a replacement, citing constitutional authority. Legislative leaders reject that appointment, preferring instead that the local district party appoint, an outcome endorsed by Attorney General Wayne Stenehjem in a legal opinion. The Democratic-NPL, meanwhile, wants the votes for Andahl invalidated, and their candidate declared the winner.
I summed up the intricacies of these various arguments last week, but before we get to the squabbling over who will fill District 8's second House seat (Andahl's running mate, Dave Nehring, was the top vote-getter in the district and will be seated without issue), it appears as though Burgum and Stenehjem will squabble over lawyers.
Burgum has requested that Stenehjem appoint some "special assistant attorneys general" to represent him in this matter. In most matters, the lawyers in the Attorney General's office are the lawyers for the state. When there is a legal dispute within the state government itself, the Attorney General's office typically chooses one side to represent while hiring outside counsel to represent the other side.
In a Nov. 9 letter to Burgum, responding to his request, Stenehjem first claims that Burgum hasn't told him which matter the appointed attorneys would be representing him in. "In order to make an appointment, I need to be informed specifically what 'action or proceeding' is pending or contemplated and which state officers are involved so I will be able to make the determination of which party to represent," Stenehjem wrote.
From there, Stenehjem went on to suggest that Burgum has already sidestepped the law by getting outside legal counsel before his office made an appointment.
"I am also wondering if you have already entered into an agreement with these attorneys or any other attorneys," Stenehjem wrote.
"It appears from reviewing the news release with accompanying legal memorandum your office issued regarding the matter that you and your office have already retained these lawyers and received legal advice without the required appointment from me," he continued, after citing the state statute which controls the appointment of outside counsel.
The news release sent out by Burgum's office to me, and other members of the news media, did include an extensive legal analysis of the situation. Stenehjem is contending that outside counsel prepared this analysis before Stenehjem could appoint.
Stenehjem's letter asks Burgum to provide "a copy of any and all retainer agreements or other written communications relating to hiring or retaining of any outside counsel by your office, and when you first contacted those lawyers for advice" before he decides on the appointment of counsel in the District 8 matter.
Burgum spokesman Mike Nowatzki declined to comment when I contacted him. "Any response regarding the AG’s request would have to come from our general counsel," he said.
This battle already has its roots in a quarrel between Burgum and Rep. Jeff Delzer, a powerful Republican appropriator from District 8 whose term ends later this month after he was defeated in the June primary by the Andahl/Nehring team. Burgum put a lot of money behind Andahl and Nehring's bid, and Burgum's appointment is an effort to stop Delzer from getting appointed to the Legislature to replace Andahl.
But now a new front has opened between Burgum and Stenehjem, a relationship that has been chilly since Burgum defeated Stenehjem in a bruising 2016 gubernatorial primary.
We have to ask, are the voters of District 8, and the entire state, being served well by this kerfuffle which is rooted, in so many ways, not so much in policy or even political conflict but very personal antipathies?
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at firstname.lastname@example.org.