Gov. Doug Burgum is seeking legal representation for a likely lawsuit over a Bismarck-area state legislative seat won by a deceased candidate.
The governor on Friday asked Attorney General Wayne Stenehjem to appoint three attorneys with Vogel Law Firm in Bismarck to represent him "on legal matters related to Legislative District 8's membership in the North Dakota House of Representatives."
Burgum last week appointed Washburn coal executive Wade Boeshans to the District 8 House seat won by David Andahl, 55, of Baldwin, who died Oct. 5 from COVID-19. Andahl and Dave Nehring, of Bismarck, won seats with 36% and 41% of the vote, respectively. District 8 is a swath north and east of Bismarck.
The Republican pair defeated longtime Rep. Jeff Delzer, R-Underwood, in the June primary. Delzer chairs the powerful House Appropriations Committee and has tangled with Burgum over budget issues. Burgum gave more than $1.8 million to a political group run by former advisers that successfully targeted Delzer's seat.
Stenehjem last month issued an opinion that Andahl's death, if he were elected, would create a vacancy that District 8 Republicans' Executive Committee would fill. The state's longest-serving attorney general later called Burgum's announcement of Boeshans' appointment "inaccurate and untimely."
Burgum has cited a constitutional provision that “The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law.”
The attorney general and Secretary of State Al Jaeger stand by Stenehjem's opinion, as do District 8 GOP Chairman Loren DeWitz and House Majority Leader Chet Pollert, R-Carrington, who intend to fill the seat after the State Canvassing Board meets Friday to certify the general election's results.
In response to the governor's letter, the attorney general on Monday asked for more information as to what "action or proceeding" is pending, what state officials are involved and if Burgum has already entered into any agreement with the attorneys. He also requested documentation of Burgum contacting, hiring or retaining the attorneys.
A Tribune open records request to the attorney general's office yielded Burgum's Friday request and Stenehjem's Monday reply.
Governor's spokesman Mike Nowatzki provided the Tribune with Burgum's reply sent Tuesday. The governor told the attorney general he had not hired or retained legal counsel, and he requested Stenehjem make the appointments by noon on Wednesday.
Burgum said the legal action would seek "a declaration of the appropriate procedure to fill the vacancy" and stop the secretary of state, the Legislature and District 8 Republicans from taking actions to fill the seat.
As of 4:30 p.m. Tuesday, no lawsuit appeared to have yet been filed in North Dakota state district court or with the state Supreme Court regarding the District 8 seat.
Political observers have pointed out the intraparty Republican politics at play in the fight, including Burgum's conflicts with Delzer and his one-time rivalry with Stenehjem in the 2016 gubernatorial primary, when Burgum handily defeated the attorney general for the party nomination from voters.
DeWitz said district party leaders will continue with their course to appoint a successor. He already has emailed Executive Committee members about setting a meeting date later in November.
"We're not going to change our plan," he said.
No one has yet expressed interest to him in being appointed, DeWitz said.
Pollert, the top House lawmaker, said he stands by his previous comments that it is the Legislature's responsibility to seat its members.
"That process will start after the canvassing of the votes," he said. State lawmakers' new four-year terms begin Dec. 1.
Reach Jack Dura at 701-250-8225 or firstname.lastname@example.org.
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