Does an Attorney General's opinion have the 'force of law' until challenged?
When a North Dakota Attorney General issues a formal opinion, it is deemed to have the force of law until challenged in the courts.
Current Attorney General Wayne Stenehjem said that has been upheld by the state Supreme Court a number of times – most recently in the “Legislature versus Burgum” case.
Stenehjem said how Legislators react to Attorney General opinions is "directly proportionate" to how much they like the opinion.
"If they like it, they sometimes act as though it's etched in stone and brought down from Mt. Sinai," Stenehjem said. "And if they don't like it, many will act as if it's the same as any opinion you might get from any schlep in a bar across North Dakota."
Stenehjem said his office also has a role in defending what the Legislature passes against Constitutional attacks. He said he also takes that seriously.
"But if it's clear, the court said, as it did in the "Legislature versus Burgum" case, 'The Attorney General has acknowledged a general duty to defend the statutes against Constitutional challenge, but where there's a conflict, the Attorney General's overriding duty is to the Constitution he is sworn to support.'"
The issue has come up again – because of a phrase inserted into the state Auditor’s budget bill – requiring the Auditor to get permission from the Legislative Audit and Fiscal Review Committee before embarking on performance audits. In an opinion, Stenehjem said that would likely be unconstitutional, and auditor Josh Gallion said he will follow that opinion.