North Dakota AG Opinions, 1981

Date Issued: April 2, 1981 (AGO 81-35) Requested by: James M. Vukelic Hettinger County State's Attorney - QUESTION PRESENTED - Whether promulgation of minimum settlement damages and fees guidelines by a surface owners association, for oil exploration and development activities would violate state antitrust law. - ATTORNEY GENERAL'S OPINION - It is my opinion that promulgation of such guidelines would violate the state's antitrust law as found in chapter 51-08, N.D.C.C. - ANALYSIS - Section 51-08-01, N.D.C.C., reads: 51-08-01. POOLS AND TRUSTS PROHIBITED. It shall be unlawful for an

Date Issued: April 2, 1981 (AGO 81-34) Requested by: Thomas H. Falck, Jr. Grand Forks County Assistant State's Attorney - QUESTION PRESENTED - Whether a person convicted of a felony who has been lawfully sentenced to a period of incarceration at the State Farm in Bismarck, but whose sentence has been suspended by the court, is deemed to have been convicted of a misdemeanor pursuant to section 12-51-07, N.D.C.C. - ATTORNEY GENERAL'S OPINION - It is my opinion, to the extent it does not conflict with the sentencing court's intentions, that a defendant who has been sentenced to a period o

Date Issued: March 27, 1981 (AGO 81-33) Requested by: John P. Van Grinsven III Ward County Assistant State's Attorney - QUESTION PRESENTED - Whether a person convicted of a felony who has been lawfully sentenced to a period of incarceration at the State Farm in Bismarck, but who has been ordered to serve the sentence in a county jail facility, is deemed to have been convicted of a misdemeanor pursuant to section 12-51-07 of the North Dakota Century Code. - ATTORNEY GENERAL'S OPINION - It is my opinion, to the extent it does not conflict with the sentencing court's intentions, that a de

Date Issued: March 26, 1981 (AGO 81-32) Requested by: Senator Rolland W. Redlin - QUESTIONS PRESENTED - I. Whether officials who are designated as ex officio members by statute are to be included as part of the total number of members of those certain boards and commissions under section 54-07-01.2 of the North Dakota Century Code of which a new governor is entitled to appoint a simple majority. II. Whether the Senate is required by section 54-07-01.2, N.D.C.C., to confirm the ex officio members of certain boards and commissions. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that offi

Date Issued: March 26, 1981 (AGO 81-31) Requested by: W. J. Brandvik, State Inspector of Apiaries, Department of Agriculture - QUESTIONS PRESENTED - I. Whether chapter 4-12 of the North Dakota Century Code authorizes the registration of a commercial location by a commercial operator if the perimeter of the quarter section that is being registered lies within two miles of the perimeter of another quarter section that is registered by another commercial operator. II. Whether section 4-12-03.1(1), N.D.C.C., authorizes a commercial operator to establish a commercial location within two miles

Date Issued: March 25, 1981 (AGO 81-30) Requested by: Tom P. Slorby, Ward County State's Attorney - QUESTION PRESENTED - Whether the apportionment of revenue provisions of section 57-62-02(3)(b) of the North Dakota Century Code apply when a currently active coal-mining operation lies in one county but the tipple for the same lies in another non-coal-producing county. - ATTORNEY GENERAL'S OPINION - It is my opinion that the apportionment of revenue provisions of section 57-62-02(3)(b), N.D.C.C., apply when a currently active coal-mining operation lies in one county but the tipple for the

Date Issued: March 23, 1981 (AGO 81-29) Requested by: Senator Gary J. Nelson - QUESTION PRESENTED - Whether receipt of limited compensation from the UND Medical Center by a physician serving as a part-time lecturer, consultant and clinical faculty member makes that physician an employee of an institution pursuant to Article VIII, Section 6(2)(a), of the North Dakota Constitution and section 15-10-02 of the North Dakota Century Code. - ATTORNEY GENERAL'S OPINION - It is my opinion that a physician serving part time as a lecturer, consultant and clinical faculty member

Date Issued: March 23, 1981 (AGO 81-28) Requested by: Richard C. Wilkes, Assistant State's Attorney for Ward County - QUESTIONS PRESENTED - I. Whether subsection 2 of section 11-10.1-05, of the North Dakota Century Code requires that on January 1, 1981, each assessor in a county, regardless of how long he has served as assessor, must have met the minimum requirements for assessor. II. Whether subsection 2 of section 11-10.1-05, N.D.C.C., requires that an assessor be certified by the state supervisor of assessments by January 1, 1982, if that individual assumed the assessor's duties in Ja

Date Issued: March 19, 1981 (AGO 81-27) Requested by: Larry E. Stern, Cass County Assistant State's Attorney - QUESTION PRESENTED - Whether a county may levy a tax on taxable property in a township for the purpose of supporting an airport or airport authority if that township already has an airport levy. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county may levy a tax on taxable property in a township for the purpose of supporting an airport or airport authority even if that township already has an airport levy. - ANALYSIS - Section 2-06-15, N.D.C.C., presently states: In cou

Date Issued: March 13, 1981 (AGO 81-26) Requested by: Jay V. Brovold, Billings County State's Attorney - QUESTION PRESENTED - Whether a board of county commissioners must submit to the electors of the county at a regular or special election a proposal for the construction of a new county courthouse when the proposed expenditure is not greater in amount than can be provided for by the annual tax levies. - ATTORNEY GENERAL'S OPINION - It is my opinion that a board of county commissioners need not submit a proposal for the construction of a new county courthouse to the electors of the count

Date Issued: March 13, 1981 (AGO 81-25) Requested by: Earl R. Myers, Jr. Richland County State's Attorney - QUESTIONS PRESENTED - I. Whether the use of a stamped seal by a notary public is acceptable in lieu of an imprinted seal under North Dakota law. II. Whether a specific inscription must appear on the face of the notarial seal. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that a notary public may use a stamped seal pursuant to section 1-01-38 of the North Dakota Century Code. II. It is my further opinion that a notarial seal, whether imprinted or stamped, must contain on its fa

Date Issued: March 13, 1981 (AGO 81-24) Requested by: John Steven Lesmeister, State Treasurer - QUESTION PRESENTED - Whether section 15-40.1-13 of the North Dakota Century Code (N.D.C.C.) is consistent with Section 35 of the Mineral Land Leasing Act of 1920 as amended by the Federal Land Policy and Management Act of 1976. - ATTORNEY GENERAL'S OPINION - It is my opinion that section 15-40.1-13, N.D.C.C., is consistent with section 35 of the Mineral Land Leasing Act of 1920 as amended by the Federal Land Policy and Management Act of 1976. - ANALYSIS - Section 35 o

Office of the Attorney General State of North Dakota Opinion No. 81-23 Date Issued: March 11, 1981 Requested by: Gene A. Christianson Acting Administrator State Health Department --QUESTION PRESENTED-- Whether the institution of cardiac surgery by a hospital constitutes a new medical care service under Chapter 23-17.2 of the North Dakota Century Code. --ATTORNEY GENERAL'S OPINION-- It is my opinion that the question presented is a question of fact and not a question of law. Therefore, this question must be decided by the appropriate party at each level in accordance with the proper legal

Date Issued: March 6, 1981 (AGO 81-22) Requested by: Representative Richard W. Kloubec - QUESTION PRESENTED - Whether an out-of-state corporation which offers to sell or sells fireworks through the mails, at retail, to persons within North Dakota is subject to the requirements of chapter 23-15 of the North Dakota Century Code. - ATTORNEY GENERAL'S OPINION - It is my opinion that an out-of-state corporation which offers to sell or sells fireworks through the mails, at retail, to persons within North Dakota is subject to the requirements of chapter 23-15, N.D.C.C. - ANALYSIS - Section 23-1

Date Issued: March 4, 1981 (AGO 81-21) Requested by: Joseph Dietchman, Benson County State's Attorney - QUESTION PRESENTED - Whether transportation is a part of proper facilities to be provided under section 15-47-02.1 of the North Dakota Century Code by a school board when it discontinues a school in its district. - ATTORNEY GENERAL'S OPINION - It is my opinion that the word "facilities" as used in section 15-47-02.1, N.D.C.C., can very probably include transportation if an arbitration board created under this section of law determines it to be a necessary part of the facilities that mu

Date Issued: March 4, 1981 (AGO 81-20) Requested by: T. N. Tangedahl, Executive Director, Social Service Board of North Dakota - QUESTIONS PRESENTED - I. Whether an act, or failure to act, by a person responsible for a child's welfare, which allows, permits, or encourages a child to engage in prostitution or be subjected to other sexual abuses such as rape, molestation, or incest, constitutes child abuse or neglect which is subject to the reporting requirements of chapter 50-25.1 of the North Dakota Century Code. II. Whether an act, or failure to act, by a person responsible for a child'

Date Issued: March 4, 1981 (AGO 81-19) Requested by: Lieutenant Governor Ernest M. Sands - QUESTION PRESENTED - Whether a law which provides an appropriation for merit scholarship awards to eligible persons, and which offers these financial awards to such persons solely on the basis of academic achievement and without regard to financial need, is constitutional. - ATTORNEY GENERAL'S OPINION - It is my opinion that a law which provides for an appropriation for merit scholarship awards to eligible students based on that individual's test results from an academic achievement test, and without

Date Issued: March 4, 1981 (AGO 81-18) Requested by: Representative Richard J. Backes - QUESTIONS PRESENTED - I. Whether under a family farm incorporation law with an emergency clause farmers and ranchers will be allowed to incorporate between the time referral petitions are filed with the Secretary of State and the time set for the election on the referral petitions. II. Whether farmers and ranchers who have incorporated under a family farm incorporation law with an emergency clause will be allowed to continue farming and ranching as a corporation if the family farm incorporation law is

Date Issued: February 26, 1981 (AGO 81-17) Requested by: State Board of Examiners of Audiology and Speech Pathology - QUESTIONS PRESENTED - I. Whether persons who are not licensed can legally conduct hearing screening tests in public schools without supervision by a licensed audiologist. II. Whether a speech/language pathologist can provide services in a federally funded "Head Start" education program without possessing a speech pathology license from the State Board of Examiners of Audiology and Speech Pathology. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that unlicensed persons

Date Issued: February 20, 1981 (AGO 81-16) Requested by: T.N. Tangedahl, Executive Director, Social Service Board of North Dakota - QUESTION PRESENTED - Whether a legislative appropriation of federal vocational rehabilitation grant funds constitutes one of the federally recognized exceptions to the federal rule that these grant funds must be spent within one year of the federal fiscal year in which they were obligated. - ATTORNEY GENERAL'S OPINION - It is my opinion that a legislative appropriation of federal grant funds constitutes one of the federally recognized excep

Date Issued: February 20, 1981 (AGO 81-15) Requested by: James E. Sperry, Superintendent, of the North Dakota State Historical Society - QUESTION PRESENTED - Whether it is permissible for the State Historical Society, as trustee of the Antoine (Tony) de Vallombrosa Trust, to deposit accrued interest from said Trust in a passbook savings account until appropriate expenditures, as outlined in the terms of the Trust, are made. - ATTORNEY GENERAL'S OPINION - It is my opinion that the State Historical Society, as trustee of the Antoine (Tony) de Vallombrosa Trust, may deposit accrued interest

Date Issued: February 17, 1981 (AGO 81-14) Requested by: Representative Verdine D. Rice - QUESTION PRESENTED - Whether existing provisions of law provide the same exemption from property taxation as would be provided by House Bill No. 1349 now being considered by the Forty-seventh Legislative Assembly of North Dakota. - ATTORNEY GENERAL'S OPINION - It is my opinion that if House Bill No. 1349 is enacted by the Legislature and becomes law it will exempt some property from taxation that is not now exempt under existing provisions of law. - ANALYSIS - House Bill 1349 would add a new subsect

Date Issued: February 12, 1981 (AGO 81-13) Requested by: Charles D. Orvik, Pierce County State's Attorney - QUESTIONS PRESENTED - I. Whether land purchased by a church on which no church structure exists and on which no religious services have been held is eligible for a real estate tax exemption for any part of the year of purchase or any year subsequent thereto in which the conditions remain the same. II. Whether a church structure and related improvements constructed on two or less acres of ground entitle the larger remainder of the eight-acre tract owned by the church to be eligible fo

Date Issued: February 9, 1981 (AGO 81-12) Requested by: Ben Meier, Secretary of State - QUESTION PRESENTED - Whether a corporation is bound by the number of directors stated in the original articles of incorporation when no provision is set forth in the articles of incorporation for the regulation of the internal affairs of the corporation. - ATTORNEY GENERAL'S OPINION - It is my opinion that a corporation is not bound by the number of directors stated in the original articles of incorporation unless the corporation has failed to adopt a bylaw that fixes the number of directors and which i

Date Issued: February 9, 1981 (AGO 81-11) Requested by: Zane Anderson, State's Attorney for Bowman County - QUESTION PRESENTED - Whether a board of county commissioners has the authority to allocate a portion of the "in lieu of tax" payments it receives from the Bureau of Land Management to the various school districts in which land for which the payments are made is located. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county commission does not have the authority or power under the statutes of North Dakota to allocate and expend a portion of the funds it receives as "in lieu of

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-10 Date Issued: February 6, 1981 (AGO 81-10) Requested by: Senator Wayne K. Stenehjem - QUESTION PRESENTED - Whether meetings of an advisory arbitration panel selected by a school board and a teachers' organization pursuant to their agreement to assist in teacher's contract negotiations are governed by the state's open meeting laws. - ATTORNEY GENERAL'S OPINION - It is my opinion that Article 92 of the North Dakota Constitution and sections 44-04-19 and 44-04-20 of the North Dakota Century Code apply to meetings of an

Date Issued: February 5, 1981 (AGO 81-9) Requested by: Tom P. Slorby, Ward County State's Attorney - QUESTION PRESENTED - Whether a county must assume responsibility for the maintenance of any part of a former highway abandoned by the State Highway Department, a part of which lies within the jurisdiction of a city. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county is not required to assume responsibility for the maintenance of a highway or any part thereof abandoned by the State Highway Department. - ANALYSIS - The Legislature has granted the Commissioner of the State Highway

Date Issued: February 5, 1981 (AGO 81-8) Requested by: Lloyd F. Zander, Commissioner of Veterans Affairs - QUESTION PRESENTED - Whether the North Dakota Commissioner of Veterans Affairs has authority to authorize the release of information and records on file with the Department of Veterans Affairs pertaining to a particular veteran. - ATTORNEY GENERAL'S OPINION - It is my opinion that all records maintained by the Department of Veterans Affairs are subject to the open records law of section 44-04-18, N.D.C.C., except for that information and those records identified as

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-7 Date Issued: February 4, 1981 Requested by: Grant County Board of Commissioners - QUESTION PRESENTED - Whether a board of county commissioners has the authority to appoint an attorney outside of the county to serve as state's attorney following the resignation of the incumbent state's attorney. ATTORNEY GENERAL'S OPINION - It is my opinion that a board of county commissioners cannot appoint an attorney who is not a qualified elector of that county to act as that county's state's attorney. However, the state's attorney of an adjoining co

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-6 Date Issued: February 3, 1981 Requested by: Industrial Commission - QUESTION PRESENTED - Whether the Bank of North Dakota can transfer its future undivided profits from time to time to the community water facility loan fund established under section 6-09.5-03 of the North Dakota Century Code to a maximum amount of ten million dollars without a specific authorization from the Legislature beyond the initial five million dollars appropriated. - ATTORNEY GENERAL'S OPINION - It is my opinion that it was the specific intent of the Legislature t

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-5 Date Issued: February 3, 1981 Requested by: F. C. Rohrich, City Attorney for the City of Linton - QUESTION PRESENTED - Whether an employment application submitted by an individual for the position of city police officer is subject to the requirements of section 44-04-18 of the North Dakota Century Code. - ATTORNEY GENERAL'S OPINION - It is my opinion that the application in question is subject to the open records requirement of North Dakota law. - ANALYSIS - In an opinion of this office dated January 26, 1979, addressed to Bismarck City

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-4 Date Issued: February 3, 1981 Requested by: Howard Snortland, Former Superintendent of Public Instruction (delivered to Dr. Joseph Crawford, Superintendent of Public Instruction) - QUESTION PRESENTED - Whether the State Board of Public School Education (the Board) has the authority to make an exception to its policy of first come, first served and relend money from the State School Construction Fund (the Fund) which has been prepaid to it by a school district on its loan without holding the money prepaid to the

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-3 Date Issued: February 3, 1981 Requested by: Representative Gayle Reiten --QUESTION PRESENTED-- Whether a law authorizing a school district to establish a period of silence not to exceed one minute for meditation or prayer at the commencement of the first class of each school day is constitutional. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a law which provides that a teacher may announce a period of silence not to exceed one minute for meditation or prayer at the commencement of the first class of each school day in all grade

STATE OF NORTH Dakota ATTORNEY GENERAL’S OPINION 81-2 Date Issued: January 30, 1981 Requested by: T. N. Tangedahl, Executive Director, Social Service Board of North Dakota - QUESTION PRESENTED - Whether it is permissible for a county social service board to establish a checking account for the deposit and dispersal of moneys in its custody. - ATTORNEY GENERAL'S OPINION - It is my opinion that section 11-14-06 of the North Dakota Century Code prohibits a county social service board from establishing a checking account for the deposit and dispersal of moneys in its custody. - ANALYSIS - Sect

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 81-1 Date Issued: January 20, 1981 Requested by: William F. Lindell, City Attorney for the City of Washburn - QUESTION PRESENTED - Whether the change by a city commission in the zoning of a parcel of land is an action that can be referred to the voters. - ATTORNEY GENERAL'S OPINION - It is my opinion that an action by a city commission or a city council in changing the zoning of a parcel of land cannot be referred to the voters under chapter 40-12 of the North Dakota Century Code. - ANALYSIS - Section 40-12-08 of the North Dakota Century Cod