Charles Sheeley: Attorney General Wayne Stenehjem Gets It Wrong On Campus Cops Again

The Attorney General released the long-awaited “legal opinion” on the diversion of funds generated by North Dakota State University campus police to the City of Fargo. The opinion was a disappointment, to say the least. The “legal opinion,” at the request of Rep. Al Carlson, was a three paragraph letter written to the representative.

The Attorney General got this issue wrong. Again.

The issue has been ongoing for quite some time. If you remember, NDSU campus police – state employees – were providing the City of Fargo with free patrols well off campus property. Also, the state employees were citing the cases into municipal court – meaning the City of Fargo treasury reaped the benefit from backs of the state taxpayers.

The North Dakota Supreme Court, in Kroschel, essentially told campus cops to stay on campus and cite to district court, just like the statute says. If campus cops had no business being in city court, the next logical question was: What should be done with the funds that were unlawfully diverted from the State? Thus, Rep. Carlson’s request for an Attorney General opinion.

The Attorney General’s response is correct in one respect: That fees generated by municipal courts are paid to the city and fees for state law violations are paid to the state. The analysis, however, cannot stop there. In order for a person to enforce municipal ordinances, he or she must have authority to enforce municipal ordinances. The NDSU campus cops had no such authority.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]There likely were hundreds of thousands of dollars that were generated by campus police which went to the city of Fargo instead of the children of North Dakota.[/mks_pullquote]

The lawyers who drafted the initial agreement appeared to have considered this. The solution was to have the Fargo Chief of Police swear in all the NDSU campus cops to enforce the ordinances of the city of Fargo. Hearing officers of the North Dakota Department of Transportation used this to justify campus cop citywide jurisdiction for many years. There was one problem, however: The North Dakota Century Code, namely the explicit limitation that a chief of police can only swear in officers “under the chief’s supervision.” N.D.C.C. § 40-20-05(1). The agencies probably held a nice ceremony to swear in new officers, but it essentially a phantom event that meant nothing.

In other words, campus cops have no authority to enforce city ordinances.

Municipal courts deal only with municipal ordinances, not state law. Since the campus cops have no authority to enforce municipal ordinances, they have no authority to cite into municipal court. Therefore, the campus cops should have been citing the cases into district court, where the North Dakota Constitution requires the fines go to the school trust fund. The arrangement had been going on in Fargo for at least 10 years.

There likely were hundreds of thousands of dollars that were generated by campus police which went to the city of Fargo instead of the children of North Dakota. No rational legal argument can be made to support the position that monies generated from the fines in this situation were “properly routed.”

I looked forward to the Attorney General’s response to Rep. Carlson’s opinion for a couple reasons. First, the Attorney General was on the losing side of the Kroschel case. I watched the case progress from the sidelines, so to say, but was surprised at the Attorney General’s vehement defense of what was clear to me to be an unlawful practice. So, I was interested to see how the Attorney General would handle the diverted funds issue shortly after his legal arguments supporting the practice failed. In addition, the Attorney General is on the “board of university and school lands.” I questioned how he would rectify his zealous prior representation of this practice while fulfilling his duty on the Board to recoup the money the school trust fund undoubtedly lost out on.

As the saying goes, big expectations bring great disappointments. Instead of confronting the issues, the Attorney General dodged the difficult questions and delegated an assistant to sign an inadequate response nearly three months after the initial questions were presented. The public deserves a more thorough response and I hope someone presses the Attorney General for a better explanation.