Once political foes, Stenehjem will represent Burgum in veto challenge from Legislature
BISMARCK—North Dakota's attorney general will defend Gov. Doug Burgum from a legislative legal challenge, the governor's spokesman said Tuesday, Dec. 19, sending one-time political rivals to the same side of the courtroom.
State law requires Attorney General Wayne Stenehjem to "appear and defend all actions and proceedings against any state officer in the attorney general's official capacity." If both parties are state officers, the attorney general may decide which one to represent.
The Republican-controlled Legislature, which is already represented by two Bismarck attorneys, petitioned the state Supreme Court this month in a challenge to several vetoes Burgum issued after the Legislature adjourned the 2017 session.
The state constitution allows the governor to strike items in a spending bill but leave the other portions to become law. The Legislature's petition asks whether Burgum exceeded his authority "in making select partial vetoes."
Stenehjem, at the request of legislative leaders, issued an opinion in June arguing Burgum overstepped his authority on some vetoes. In several instances, he said Burgum tried to strike conditions or restrictions on spending without vetoing the appropriation itself. Stenehjem sided with Burgum in other cases, however.
Burgum spokesman Mike Nowatzki said the governor's office sought an opinion from independent counsel to determine whether the attorney general's opinion creates any conflict of interest that would preclude him from representing Burgum. Attorney Bruce Quick determined that no conflict exists under North Dakota Rules of Professional Conduct, Nowatzki said.
"The governor could hire outside counsel ... but the attorney general is the consummate expert on constitutional issues with regard to North Dakota law," he said.
Nowatzki said he was unsure if Stenehjem himself will present arguments to the state Supreme Court.
Still, House Majority Leader Al Carlson, R-Fargo, said it “seems odd” that Stenehjem would represent Burgum after already issuing an opinion on the matter. Senate Majority Leader Rich Wardner, R-Dickinson, wasn’t surprised by the news, however.
Lawmakers filed their petition to the state Supreme Court Dec. 8. Justices asked for a response from the governor by Jan. 16.
Burgum bested Stenehjem last year for the Republican nomination for governor, but Nowatzki said their previous political battle doesn’t have any bearing on the current legal process. Stenehjem’s spokeswoman Liz Brocker said they don’t comment on ongoing litigation.