Attorney General: Legislature’s Limits on Auditor’s Authority Are Likely Unconstitutional

Earlier this year state lawmakers inserted last-minute language into the budget for the State Auditor’s Office which requires that the state Auditor come begging to the Legislature for permission to perform audits.

That’s created a lot of controversy, including an effort to collect signatures to refer the legislation to the ballot box. Our current Auditor Josh Gallion – a Republican who has ruffled some feathers with an aggressive approach to performance reviews of executive branch offices and higher education – asked Attorney General Wayne Stenehjem (also a Republican) for an opinion about the legislation.

Today Stenehjem issued that opinion, and found it’s likely unconstitutional.

You can read his full letter to Gallion below, but here’s a summary from the AG’s release about the opinion:

Section 3 of Senate Bill 2004 requires the State Auditor to seek the approval of the legislative audit and fiscal review committee before performing or providing certain types of audits without clear guidelines for application. The bill diminishes the independence of the State Auditor’s office and instead entrusts an inherently executive power in the legislative branch. The ability of the executive branch to function, independent of the Legislature is a core tenet of the three-branch system of government. It is my opinion that if a court were to rule on the constitutionality of Section 3 of SB 2004, it would determine it is a violation of the separation of powers doctrine to condition the exercise of the State Auditor’s powers on the approval of a legislative committee, and, therefore, is likely unconstitutional.

Interestingly, part of Stenehjem’s reasoning for that conclusion is based on a recent Supreme Court ruling in a separation of powers dispute between Governor Doug Burgum and the Legislature. Ironically Burgum won the legal argument Stenehjem is referring to, but now Stenehjem is saying Burgum signed legislation contrary to it:

Stenehjem goes on to point out that the state Supreme Court ruled in the Burgum case that the Legislature had improperly delegated its authority to a committee. “Therefore, it is my opinion that if a court were to rule on this bill, it would likely determine it is a violation of the ‘improper legislative delegation’ theory of the separation of powers doctrine for failure to iterate reasonably clear guidelines or a sufficiently objective standard.”

But that is the lesser of the Legislature’s constitutional sins, according to Stenehjem. The larger sin is the Legislature trying to micromanage the authority it gives to the Auditor: “The Legislative Assembly granted the State Auditor both the power to contract for audits required by the federal government and the power to perform or provide for performance audits of state agencies.32 Section 3 of S.B. 2004 retains control over these powers by inserting a discretionary, legislative approval power over the execution of the law.”

Again, that’s what the state Supreme Court struck down in the Burgum case.

I called Gallion this morning for his response to the letter, but at the time I spoke to him he said he hadn’t had time to read the opinion. I’ll update this post with any response I get from him.

It will be interesting to see what his reaction is. At this point, will Gallion ignore the law? Will he challenge it in the courts? If he did so he’d be taking up a defense of executive branch powers, but remember that the head of the executive branch, Governor Doug Burgum, signed this legislation into law and has specifically defended it.

Lawmakers made a very big mistake in passing this legislation. Burgum made a mistake in signing it into law. So far lawmakers have refused to call themselves back into session to fix this problem and that, too, is a mistake.

Not only was gutting the Auditor’s powers the wrong thing for Republicans and Democrats to do (only a small faction of House Republicans voted against this legislation) from the standpoint of transparency and accountability, per Stenehjem it also may have been illegal.

UPDATE: “It’s a well-written opinion,” Gallion told me about the opinion. “It’s impressive. I think it ought to be taught in every high school civics class.”

Gallion requested the opinion, so what will he do now? “I’ll probably need to get further legal advice,” he said, but went on to say that his office will likely ignore the legislation mandating that he seek permission to perform certain audits.

“We’ll probably move forward as we have been doing without the approval of the legislative committee,” he said.

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