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North Dakota Supreme Court denies governor's legislative appointment

North Dakota Supreme Court denies governor's legislative appointment

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North Dakota's Supreme Court consists of Justices Gerald VandeWalle, Daniel Crothers, Jon Jensen, Lisa Fair McEvers and Jerod Tufte.

North Dakota's Supreme Court has stopped Gov. Doug Burgum from appointing a state representative to a Bismarck-area House seat won by a deceased candidate.

Now one of the Legislature's most powerful members who has crossed swords with the governor is set to hold the seat after being defeated in the June primary but securing appointment last week by district Republicans. 

In the unanimous ruling issued Tuesday, the court said "the Governor does not have statutory or constitutional authority to make an appointment to fill the vacancy in this case. He has not established a clear legal right to performance of the acts he seeks."

The recently reelected Republican governor said in a statement that “This case involved a question of the governor’s constitutional responsibility in a set of circumstances never before seen in North Dakota. The Supreme Court determined that responsibility is not applicable in this case. While we disagree with the findings, we respect the Court’s opinion and will continue to do our best every day to serve the citizens of North Dakota."

Burgum earlier this month sued the secretary of state, the Legislature and the District 8 Republican chairman, asking the court to preclude them filling the seat won by David Andahl, 55, of Baldwin, who died Oct. 5 from COVID-19 but still won 36% of the vote in the general election. District 8 is a swath east and north of Bismarck.

Burgum sought to appoint Washburn coal executive Wade Boeshans, citing 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.” 

Attorney General Wayne Stenehjem, who represented the secretary of state and the Legislature, cited his Oct. 13 opinion that Andahl's death, if he were elected, would create a vacancy that the District 8 Republicans Executive Committee could fill by appointment. 

The Supreme Court said provisions of the state law cited in Stenehjem's opinion for filling legislative vacancies "will apply." 

"Because that law provides a method for filling this vacancy, the Governor’s gap-filling authority is not available," the court said. 

Stenehjem in a statement welcomed the court's ruling.

"This entire exercise was a waste of taxpayer dollars and time, all of which could have been avoided had the Governor came across the hall to receive legal advice from the person who was elected by the citizens of North Dakota to provide legal advice to state officials,” the attorney general said.

Burgum was represented by Vogel Law Firm attorneys R.J. Pathroff, Megan Gordon and Nicholas Surma, all of Bismarck, whom Stenehjem had appointed as special assistant attorneys general at Burgum's request. The Tribune on Tuesday requested the governor's associated legal fees; Burgum spokesman Mike Nowatzki said the bill had not been finalized.

District 8 Republicans last week appointed longtime Rep. Jeff Delzer, R-Underwood, whom Andahl and fellow Republican Dave Nehring, of Bismarck, defeated in the June primary. Nehring and Andahl went on to win the two District 8 seats in the general election.

District 8 GOP Chairman Loren DeWitz called Tuesday's ruling "good news" that confirmed the attorney general's opinion last month.

"I'm not surprised," he said.

House Majority Leader Chet Pollert, R-Carrington, echoed the district party chairman, saying the ruling "basically solidified" the attorney general opinion. 

"The legislative branch is in charge of the legislative branch, and that's the way it should be," Pollert said.

Secretary of State Al Jaeger on Friday issued a certificate of appointment for Delzer, who is set to take office Dec. 1 with other new and reelected state lawmakers.

Pollert said Delzer is "definitely under strong consideration" to continue as chairman of the powerful House Appropriations Committee. 

Delzer and Burgum have clashed over budget issues.  Burgum, a wealthy former software executive, gave more than $1.8 million to a political group run by former advisers that successfully targeted Delzer's seat. 

Political observers have pointed out the intraparty Republican politics at play. Burgum in 2016 handily defeated the state's longest-serving attorney general for the Republican gubernatorial nomination from voters. 

Before the 2019 Legislature convened, Delzer led a rule change that shifted how lawmakers considered Burgum's proposals. Burgum later said he felt his executive budget had been "tossed in the garbage." Delzer said all of Burgum's proposals were fully vetted and many were adopted, and that the rule change was years in the making and added more transparency in budget writing.

Delzer, who has spent nearly 30 years in the Legislature, declined on Tuesday to talk about Burgum's efforts to unseat him but did tell The Associated Press that “I feel sorry for the Andahl family for having to go through all this."

"It’s a shame he passed away and could not fill the seat," Delzer told AP. "I am honored to be chosen to fill the seat and will do the best I can for the district and the state of North Dakota.”

Democrat Kathrin Volochenko, of Mercer, who finished third with 11% in the general election in the District 8 race, also argued for Andahl's seat, calling votes for him a "collective 'nullity.'" She filed a district court case Monday in Burleigh County after Supreme Court oral arguments on Friday. 

Justices rejected Volochenko's arguments for the seat, ruling that her "electoral status as the third-place finisher does not prevent a vacancy from occurring in the office."

Volochenko attorney David Thompson said "We are evaluating the decision, and what potential options remain for Kathrin Volochenko, given the manner in which the Supreme Court ruled today."

It's unclear how soon the new district court case will be heard.

Jaeger declined to comment on the new case but also said he considers it "a moot point," given the high court's ruling.

"What the Supreme Court said in its opinion, they made it very clear that, no, (Volochenko) doesn't get to have (the seat)," the longtime secretary of state told the Tribune.

The Supreme Court case is the second one involving Burgum and the Legislature. In 2018, the state Supreme Court heard and resolved disputes of executive and legislative authority in the governor's veto powers and provisions set by lawmakers in several budget bills.

Republicans hold supermajority control of the Legislature and won 65 of 69 legislative seats in the general election, increasing their holds to 40-7 in the Senate and 80-14 in the House.

Reach Jack Dura at 701-250-8225 or jack.dura@bismarcktribune.com.

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