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Legislative Budget Section considers authority after ND Supreme Court ruling

BISMARCK—North Dakota lawmakers expressed uncertainty over the authority of the legislative Budget Section during the committee's first meeting since the state Supreme Court handed down a ruling in a lawsuit involving the executive and legislative branches.

Sen. David Hogue, R-Minot, raised the issue in an early item of the Budget Section's meeting on Thursday, Sept. 13, at the state Capitol in Bismarck: At question was whether to accept $3 million in federal funds for the Secretary of State's Office. From there, the subject snowballed, resulting in a 15-19 vote rejecting the approval of state Highway Patrol funds to purchase several drones.

Legislators said the authority of the Budget Section remains unclear in the wake of the Supreme Court's July 30 opinion, which found the Legislature "unconstitutionally encroached" on executive authority in spending provisions of two appropriations bills in 2017. Additionally, the high court found four of Gov. Doug Burgum's five disputed partial vetoes to be "ineffective."

The 42-member Budget Section is an interim group of lawmakers that meets between sessions to approve or reject certain expenditures.

Legislative Council Director John Bjornson presented a memo of the ruling's effects on two disputed appropriations bills. He told lawmakers the Supreme Court's opinion is "not really clear" as to other duties of the Budget Section.

"The key is this opinion addressed two specific sections only, so you're left with a less than clear conclusion based upon the opinion beyond those two areas, but we do know that you need to be careful when you start to move beyond legislative authority and raise separation of powers issues," Bjornson said.

House Majority Leader Al Carlson, R-Fargo, said a bill draft is in the works for clarification, with some tweaks to come after Thursday's comments from legislators.

"We just need to clarify our duties a little bit, make sure there's no question that they pass that authority on from the larger body to us," Carlson said.

Hogue said he thinks a constitutional amendment is necessary to authorize the Legislature to delegate certain decisions to the Budget Section due to the gravity of some spending decisions in the 20 months between sessions.

"If the full legislative body agrees to delegate to the Budget Section, that should be OK," Hogue said.

Lawmakers questioned if, by the Highway Patrol's request to the Budget Section, the executive branch accepts the committee's authority for approval. Rep. Bob Martinson, R-Bismarck, responded with somewhat of a jab.

"Considering the fact that four of the five vetoes that were challenged the Supreme Court ruled in the Legislature's favor, I guess I would not agree with an assumption that the executive branch knows what they're doing," Martinson said.

Governor's spokesman Mike Nowatzki referenced the high court's opinion in the executive branch's perspective of the Budget Section's authority.

"We believe the Supreme Court opinion was clear when it stated that it is unconstitutional for the Budget Section to retain control as an 'agent of the Legislative Assembly to continue directing expenditures after its role of passing legislation is completed ... It encroaches upon the role of the executive and also bypasses the mandatory legislative process,'" Nowatzki said in a statement.

After the vote rejecting the Highway Patrol's request, Budget Section chair and Rep. Larry Bellew, R-Minot, said the request is likely to return during the 2019 session, perhaps in an emergency clause for early movement.

He also said the determination of the Budget Section's authority has to play out due to "very vague" details from the Supreme Court opinion. The bill draft could help, he added.

"A lot of the stuff we have to approve because we can't go into special session every time a state agency comes up with they're receiving $3 million in federal funds. Yeah, we've got to let them do it, because if we don't, it goes away," Bellew said. "There's got to be some give and take and some leeway."

The Budget Section will next meet in early December for its pre-session agenda.

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