Potential Legislature suit against the Governor hearkens back to a dispute in 1977

Jul 5, 2017

Credit ND Attorney General's office

It hasn’t yet been filed – but a potential legal dispute still looms over some of Governor Burgum’s line item vetoes following the 2017 Legislative Session.

The last time there was a legal clash between the two branches happened in 1977. It involved then-Lieutenant Governor Wayne Sanstead (D), and the power of the Lieutenant Governor to break ties in the Senate.

"Historically, the Lieutenant Governor under the Constitution was allowed to cast a vote in the case of a tie in the Senate," said Attorney General Wayne Stenehjem, who was in the North Dakota House in 1977. "But the precedent had been that the Lieutenant Governor did not do that."

Stenehjem said in 1977, the Senate passed a rule saying the President of the Senate -- the Lieutenant Governor -- is not an elected member of the Senate, and therefore could not vote on the final passage of a bill, if the vote was tied. But the rule said the Lieutenant Governor could vote on procedural matters when they were tied. Stenehjem said that set up the court case.

"The Lieutenant Governor (Sanstead) went to court," Stenejem said.

Named as defendants were the President Pro-Tem of the Senate, Howard Fried (R); Senate Majority Leader David Nething (R-Jamestown); and all the rest of the members of the Senate. The case went immediately to the state Supreme Court.

"The question there: Does the Lieutenant Governor, who is not an elected Senator, have the authority to cast a deciding vote, if it is a tie vote on final passage of a bill?" Stenehjem said. "The Court found since the Lieutenant Governor is not a member of the Senate, it takes a majority of the Senate members to pass a bill."

The issue in question, that could have been subject to Sanstead casting a deciding vote?

"Funding for public television," said Stenehjem.

Stenehjem said Sen. Ray Holmberg (R-Grand Forks) then introduced a Constitutional amendment, allowing the Lieutenant Governor to break ties. That passed the Legislature, and was approved at a subsequent statewide election.