North Dakota Attorney General Opinions

LETTER OPINION 2001-L-08 March 19, 2001 Honorable Ben Tollefson State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Senator Tollefson: Thank you for your letter raising questions about redistricting Indian reservations. You asked whether the North Dakota Indian reservations could be organized into a single legislative district. Article IV, Section 2 of the North Dakota Constitution provides, in part, as follows: The legislative assembly shall fix the number of senators and representatives and divide the state into as many senatorial districts of compact and

LETTER OPINION 2001-L-07 March 8, 2001 Honorable Aaron Krauter State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Senator Krauter: Thank you for your letter inquiring about the constitutionality of SB 2388. SB 2388 amends subsection 2 of N.D.C.C. § 47-05-02.1 by creating an exception to the 99-year limitation on easements, for organizations that meet the following criteria: a. The directorate of the organization consists of agricultural producers; b. The organization was incorporated in this state before January 1, 2001; and c. The organization is exemp

LETTER OPINION 2001-L-06 March 7, 2001 Mr. Fritz Fremgen Stutsman County State's Attorney 511 2nd Ave SE Jamestown, ND 58401-4210 Dear Mr. Fremgen: Thank you for your letter asking whether a county veterans' service officer or the officer's assistant may make a certified copy of a veteran's discharge papers (DD 214) which are filed with the county veterans' service officer under N.D.C.C. § 37-01-34 if the certifying official is not a notary public. Upon request, a veteran is entitled to a certified copy of all public records without charge, including the veteran's discharge papers. N.D.C.C.

N.D.A.G. Letter to Boucher (Feb. 26, 2001) February 26, 2001 Honorable Merle Boucher Minority Leader House of Representatives 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Boucher: Thank you for your letter raising questions about section 6 of House Bill 1318 and the underlying statute, N.D.C.C. § 16.1-10-04.1. Since you submitted your letter, additional amendments were added to the bill including amendments to what was originally numbered section 6 and which is now section 5. What is now section 5 would amend N.D.C.C. § 16.1-10-04.1 whi

LETTER OPINION 2001-L-05 February 26, 2001 Ms. Linda Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Dear Ms. Hickman: Thank you for your letters requesting an opinion relating to the funding of a multi-county health district. Your first question relates to the manner of determining how much each county in the health district must pay towards the health district budget. You state: Prior to the enactment of N.D.C.C. § 23-35-07, the Health District would certify a prorated dollar amount to each county. The counties would each forward the certified amounts to the

FORMAL OPINION 2001-F-02 DATE ISSUED: February 22, 2001 REQUESTED BY: Jeff Rotering, Adams County State’s Attorney QUESTION PRESENTED Whether parents in a bordering state may privately pay tuition to a North Dakota public school district so their children may attend school in the North Dakota school district. ATTORNEY GENERAL’S OPINION It is my opinion that a North Dakota school district may not accept a student from a bordering state unless there is in place either a reciprocal master agreement between the Superintendent of Public Instruction and the appropriate officer or board in the b

February 15, 2001 Mr. Ronald Jacobson Director, NDASCD PO Box 267 Crosby, ND 58730-0267 Dear Mr. Jacobson: Thank you for your February 1, 2001, letter asking for my assistance with the roll-call voting requirements of North Dakota Century Code (N.D.C.C.) § 44-04-21(1). Although I am not authorized to give you an official Attorney General's opinion, I hope you will find the suggestions in this letter helpful. All meetings of a "governing body" of a "public entity" are required to be open to the public. N.D.C.C. § 44-04-19. For reasons explained in 1998 N.D. Op. Att’y Gen. O -21, the Associati

LETTER OPINION 2001-L-04 February 15, 2001 Honorable Aaron Krauter State Senator 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Krauter: Thank you for your February 6, 2001, letter requesting my opinion regarding the constitutionality of Engrossed House Bills 1128 and 1437 and Engrossed Senate Bill 2177. You request my assurance that a constitutional challenge to those bills would be unsuccessful or a recommendation as to how to amend the bills to assure that they survive any constitutional challenge. You also request my opinion on how to amend the bills s

FORMAL OPINION 2001-F-01 DATE ISSUED: February 14, 2001 REQUESTED BY: Ronald W. McBeth Richland County Assistant State’s Attorney QUESTIONS PRESENTED I. Whether the state has exclusive criminal jurisdiction over non-Indians who commit victimless crimes in Indian country. II. Whether the state, to further its Indian country criminal jurisdiction, has authority to issue search warrants to be executed in Indian country by state law enforcement officers. ATTORNEY GENERAL’S OPINIONS I. It is my opinion that the state has extensive but not exclusive criminal jurisdiction ove

LETTER OPINION 2001-L-03 February 13, 2001 Mr. Donald R. Becker Emmons County State’s Attorney PO Box 658 Linton, ND 58552-0658 Dear Mr. Becker: Thank you for your letter asking whether the Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (FMLA), applies to counties employing fewer than 50 persons. The FMLA generally grants eligible employees 12 work weeks of leave in a 12-month period for certain serious health conditions of an employee or employee’s family. 29 U.S.C.A. § 2612. The FMLA defines “eligible employee” as: (2) Eligible employee (A) In general The term “eligible employ

OPEN RECORDS AND MEETINGS OPINION 2001-O-01 DATE ISSUED : February 13, 2001 ISSUED TO : Michael Maus, South Heart City Attorney CITIZEN’S REQUEST FOR OPINION On December 19, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Volesky on behalf of The Dickinson Press asking whether the South Heart City Council violated N.D.C.C. §§ 44-04-19, 44-04-19.2, 44-04-20, and 44-04-21 by holding an executive session which was not authorized by law, by failing to follow the statutory procedures for holding an executive session, by failing to comply wit

LETTER OPINION 2001-L-02 February 6, 2001 Mr. James D. Gion Assistant Grant County State’s Attorney PO Box 196 Carson, ND 58529-0196 Dear Mr. Gion: Thank you for your letter asking our office to reconsider the issue of who has the final authority to determine whether a proposed settlement agreement should be accepted in a lawsuit initiated by former Grant County State’s Attorney Cynthia Feland. You also ask whether a county has the authority to pay legal fees if the court’s judgment requires such payment. The lawsuit initiated by former Grant County State’s Attorney Cynt

LETTER OPINION 2001-L-01 February 6, 2001 The Honorable Merle Boucher Minority Leader House of Representatives State Capitol Bismarck, ND 58505 Dear Representative Boucher: Thank you for your letter asking me to respond to questions from the Richland County auditor. First, the auditor asks whether N.D.C.C. § 61-21-32 requires counties to be responsible for 40 percent of the cost of bridges or culverts and repaired in connection with a drainage project. Drain projects can be constructed by water resource districts under authority provided in either N.D.C.C. ch. 61-21 or 61-16.1 N.D.C.C. §

LETTER OPINION 2000-L-179 December 29, 2000 Honorable Karen K. Krebsbach State Senator PO Box 1767 Minot, ND 58702-1767 Dear Senator Krebsbach: Thank you for your letter requesting my opinion on several questions regarding N.D.C.C. § 6-08-16 and the collection of insufficient funds checks. Your first question asks “[a]t what point during the processing of a bad check at a collection agency does the service charge become due and payable?” Initially, you should note that N.D.C.C. § 6-08-16 do

LETTER OPINION 2000-L-176 December 21, 2000 Mr. Duane R. Breitling, Attorney Red River Joint Water Resource Board 15 Broadway, Suite 206 Fargo, ND 58102-4907 Dear Mr. Breitling: Thank you for your letter in which you asked whether the Red River Joint Water Resource Board (Joint Board) may use funds from a tax levied pursuant to N.D.C.C. § 61-16.1-11(2) to provide financial assistance for the construction or maintenance of farmstead ring dikes. According to your letter, the Joint Board was formed pursuant to N.D.

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-19 Date issued: December 20, 2000 Requested by: William A. Herauf, Dodge City Attorney - QUESTION PRESENTED - Whether a city without home rule authority may own or operate a retail business, in particular a convenience store and gasoline station. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city without home rule authority may own a retail business pursuant to statutory authority and a finding of public purpose. It is my further opinion tha

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-18 Date Issued: December 15, 2000 Requested by: Representative Eliot Glassheim - QUESTIONS PRESENTED - I. Whether a home rule city that has enacted ordinances providing for a civil service system must follow the requirements of N.D.C.C. ch. 40-44 when it removes employees or positions from the protection of the civil service system. II. Whether the Grand Forks home rule charter contains the necessary language to authorize the Grand Forks

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-13 DATE ISSUED : December 14, 2000 ISSUED TO : Norbert Sickler, Administrator, Southwest Multi-County Correction Center CITIZEN’S REQUEST FOR OPINION On August 14, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jack McDonald on behalf of The Dickinson Press asking whether Norbert Sickler, administrator of the Southwest Multi-County Correction Center, violated N.D.C.C. § 44-04-18 by denying a request for access to medical records of a deceased juvenile inmate and by failing to desc

LETTER OPINION 2000-L-174 December 4, 2000 Senator Pete Naaden P.O. Box 53 Braddock, ND 58524 Dear Senator Naaden: Thank you for your letter asking whether the city of Linton, which has a home rule charter, can charge a late fee of 10% on the amount of a quarterly water bill remaining unpaid ten days after it is due. You also ask whether the city has the power to charge more than the late fee allowed under N.D.C.C. § 13-01-14. The imposition of a late fee on a Linton water

LETTER OPINION 2000-L-170 December 4, 2000 Mr. Jeff Knudson Seed Arbitration Board Designee of the Commissioner of Agriculture Department of Agriculture 600 E Boulevard Ave Dept 602 Bismarck, ND 58505-0020 Dear Mr. Knudson: Thank you for your letter asking for an Attorney General’s opinion relating to North Dakota’s Seed Arbitration Law. You have asked for an opinion on whether N.D.C.C. § 4-09-20.2 gives the Seed Arbitration Board (Board) the authority, by rule, to require arbitration of a seed-related dispute as a pr

LETTER OPINION 2000-L-168 December 4, 2000 Honorable Judy L. DeMers State Senator 2200 South 29th Street, Apt. 92N Grand Forks, ND 58201-5869 Dear Senator DeMers: Thank you for your letter inquiring about the delegation authority of licensed nurses under North Dakota’s Nurse Practices Act, N.D.C.C. ch. 43-12.1. The Nurse Practices Act defines nursing to include “[a]dministration, teaching, supervision, delegation, and evaluation of health and nursing practices.” N.D.C.C. § 43-12.1-02(6). The authority of a nur

N.D.A.G. Letter to Larson (Nov. 28, 2000) November 28, 2000 Mr. Stuart A. Larson Traill County State’s Attorney PO Box 847 Hillsboro, ND 58045-0847 Dear Mr. Larson: Thank you for your letter asking for my opinion on whether certain assisted living apartments attached to nursing homes in Traill County are exempt from property taxation under N.D.C.C. § 57-02-08(8). The assisted living apartments are attached to and operated by nursing homes that are owned and operated by nonprofit corporations. While you do not question that the assisted living facilities are o

LETTER OPINION 2000-L-162 November 28, 2000 Mr. Al Baker Office of the City Prosecutor PO Box 150 Fargo, ND 58107-0150 Dear Mr. Baker: Thank you for your letter concerning whether a driver with a valid North Dakota driver’s license can be convicted of driving under suspension or revocation if, while driving in North Dakota, the driver’s privilege to drive has been suspended or revoked in another state. N.D.C.C. § 39-06-42(1) sets forth the criminal penalty for driving a motor vehicle within

LETTER OPINION 2000-L-160 November 13, 2000 Mr. David E. Reich Special Assistant Attorney General P.O. Box 400 Bismarck, ND 58502 Dear Mr. Reich: Thank you for your letter on behalf of the North Dakota Real Estate Commission (the Commission) asking whether N.D.C.C. § 42-23-10 permits reciprocity with any of the provinces of Canada or with other foreign countries. N.D.C.C. § 43-23-10 provides in pertinent part as follows: A nonresident broker regularly engaged in the real estate business as a vocation and

LETTER OPINION 2000-L-156 November 2, 2000 Mr. Neil W. Fleming Pembina City Attorney PO Box 633 Cavalier, ND 58220-0633 Dear Mr. Fleming: Thank you for your letter requesting my opinion on whether a home rule city which includes in its charter the fiscal powers set out in N.D.C.C. § 40-05.1-06(2) may borrow money for street improvements from a local financial institution without issuing improvement bonds or warrants under N.D.C.C. ch. 40-24. 1 For the reasons set out below, it is my opi

LETTER OPINION 2000-L-153 October 17, 2000 Mr. Lonnie W. Olson Ramsey County State’s Attorney 524 4th Avenue #16 Devils Lake, ND 58301-2490 Dear Mr. Olson: Thank you for your letter asking whether the Ramsey County Commission may donate money to the Devils Lake Improvement Association, a private, non-profit organization. You state in your letter: The organization plans to purchase 200 acres of land in Nelson County for the purpose of a flood control outlet from Stump Lake to the Tolna Coulee. The

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-12 DATE ISSUED : October 17, 2000 ISSUED TO : Scott Solem, Attorney, Beulah Public School District CITIZEN’S REQUEST FOR OPINION On July 31, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jack McDonald on behalf of the Beulah Beacon asking whether the Beulah Public School District violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by failing to follow the statutory procedures for holding an exe

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-17 Date issued: October 6, 2000 Requested by: Tom Henning, Stark County State’s Attorney - QUESTION PRESENTED - Whether an easement for highway purposes granted to a township “so long as [it] is used for a public highway” was extinguished or released when the township dissolved over 50 years ago and no provision was made to transfer the road easement to the county or any other governmental entity. - ATTORNEY GENERAL'S OPINION - It is my opi

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-16 Date issued: September 28, 2000 Requested by: Richard C. Wilkes, Burke County State’s Attorney - QUESTIONS PRESENTED - I. Whether a county having a population of under 8,000 and without a resident physician may appoint an available physician residing in an adjacent county to be its medical county coroner as provided by N.D.C.C. ch. 11-19.1. II. Whether a physician appointed as county coroner in a county with a population of under 8,000

LETTER OPINION 2000-L-151 September 13, 2000 Mr. John Mahoney Oliver County State’s Attorney PO Box 355 Center, ND 58530 Dear Mr. Mahoney: Thank you for your September 6, 2000, letter asking whether the “factfinder” discussed in my September 1, 2000, opinion to you refers to the Oliver County Commission. In my September 1, 2000, opinion, I stated: A board of county commissioners, after notice and public hearing, may temporarily close or relocate the section line road if 1) the road is not required du

LETTER OPINION 2000-L-149 September 1, 2000 Mr. R. Scott Stewart Cavalier County State’s Attorney PO Box 151 Langdon, ND 58249-0151 Dear Mr. Stewart: Thank you for your letter concerning whether N.D.C.C. § 47-19-03.1 applies to a deed or contract for deed in which there is an exception described by metes and bounds to the tract being conveyed. You cite as an example, the transfer of the Northwest quarter of section 30 of a certain township and range, less a five acre tract described

LETTER OPINION 2000-L-144 September 1, 2000 Mr. John Mahoney Oliver County State’s Attorney PO Box 355 Center, ND 58530 Dear Mr. Mahoney: Thank you for your August 16, 2000, letter in which you ask for an opinion on the authority of a county to approve a temporary vacation and relocation of a section line road at the request of a coal company, BNI Coal (hereafter, BNI). This issue involves a dispute between Rose Bobb and BNI regarding whether the coal lease between BNI and Rose

LETTER OPINION 2000-L-142 September 1, 2000 Mr. James D. Gion Grant County Assistant State’s Attorney PO Box 196 Carson, ND 58529 Dear Jim: Thank you for your letter asking about the term of a county state’s attorney who is appointed rather than elected. N.D.C.C. § 11-10-02.3 provides a procedure to change the office of state’s attorney from elected to appointed: Upon the submission to the board of county commissioners of a petition signed by ten percent or more of the total number of qualified electors

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-11 DATE ISSUED : September 1, 2000 ISSUED TO : Linda Cooksey, Killdeer Public School District Business Manager CITIZEN’S REQUEST FOR OPINION On July 20, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeanne Kukla asking whether the Killdeer Public School District violated N.D.C.C. § 44-04-18 by charging her a fee for copies of public records which exceeded the amount authorized in that statute for locating and copying public records. FACTS PRESENTED The Kil

LETTER OPINION 2000-L-138 August 24, 2000 Ms. Julie Kubisiak Director Student Loans of North Dakota Bank of North Dakota PO Box 5509 Bismarck, ND 58506-5509 Dear Ms. Kubisiak: Thank you for your letter requesting my opinion on whether the Bank of North Dakota, acting as an extension of the Industrial Commission (Bank), is required to follow the Administrative Agencies Practice Act (AAPA), N.D.C.C. ch. 28-32, in adopting and amending rules governing the creation and operation of a college savings plan. I am a

LETTER OPINION 2000-L-135 July 19, 2000 Honorable Ralph Kilzer State Senator, District 47 2040 N Grandview Ln Bismarck, ND 58503-0845 Dear Senator Kilzer: Thank you for your letter requesting an opinion on the effect of N.D.C.C. § 23-12-14 on the ability of a medical provider to charge an insurance company for copies of records. N.D.C.C. § 23-12-14, enacted by the 1999 Legislative Assembly, provides: 1. As used in this section, "medical provider" means a licensed individual or licensed facili

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-15 Date issued: July 19, 2000 Requested by: Nevin Van De Streek, Minot City Attorney John P. Van Grinsven III, Ward County Assistant State’s Attorney Gary E. Euren, Assistant Grand Forks City Prosecutor - QUESTIONS PRESENTED - I. Whether a city, including a home rule city, adopting a tobacco control ordinance pursuant to N.D.C.C. § 12.1-31-03(3) may enforce the ordinance against a juvenile in municipal court despite the exclusive original jurisdiction of the juvenile court un

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-10 DATE ISSUED : July 19, 2000 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On June 23, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Hoff asking whether the Grand Forks City Council violated N.D.C.C. §§ 44-04-19, 44-04-19.2, and 44-04-20 by holding an executive session which was not authorized by law or sufficiently identified in the notice of the meeting and by failing to sufficiently announce the t

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-09 DATE ISSUED : July 17, 2000 ISSUED TO : Ellen Elder, President, Hettinger Public School District Board CITIZEN’S REQUEST FOR OPINION On June 2, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Joey Hedstrom of the Adams County Record asking whether the Hettinger Public School District Board violated N.D.C.C. § 44-04-19 by holding an executive session to discuss contract negotiation strategy which was not authorized by law. FACTS PRESEN

N.D.A.G. Letter to Jaeger (July 14, 2000) July 14, 2000 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505 Dear Secretary of State Jaeger: Thank you for your letter raising several questions about temporary gubernatorial succession. You first asked whether there are current provisions in the laws of the state for the secretary of state to become acting governor when the governor and lieutenant governor are physically absent from the state. The current constitutional provision dealing with gubernatorial succession is contained in Artic

LETTER OPINION 2000-L-132 July 14, 2000 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505 Dear Secretary of State Jaeger: Thank you for your letter asking several questions about the validity of notarial acts performed by notaries outside their territorial jurisdictions. You first asked whether a notary public commissioned in this state may perform a notarial act outside of North Dakota. In Watson v. Kresse, 130 N.W.2d 602 (N.D. 1964), the North Dakota Suprem

LETTER OPINION 2000-L-128 July 14, 2000 Honorable Pam Gulleson State Representative PO Box 215 Rutland, ND 58067-0215 Dear Representative Gulleson: Thank you for your letter inquiring about the effect of the 1999 amendments to N.D.C.C. § 11-10-02 which take effect on January 1, 2003, for counties with 6,000 people or less which have adopted a resolution separating the offices of register of deeds and clerk of district court. The current version of N.D.C.C. § 11-10-02, which is effective through December 31, 2002

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-14 Date issued: July 14, 2000 Requested by: Murray Sagsveen, State Health Officer - QUESTION PRESENTED - Whether the jurisdiction of a county or multi-county health district formed under repealed N.D.C.C. ch. 23-14 includes cities within the county or counties composing the district pursuant to former N.D.C.C. § 23-14-01. - ATTORNEY GENERAL'S OPINION - It is my opinion that the jurisdiction of a county or multi-county health district formed under

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-08 DATE ISSUED : July 14, 2000 ISSUED TO : Ellen Elder, President, Hettinger Public School District Board CITIZEN’S REQUEST FOR OPINION On June 19, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Joey Hedstrom of the Adams County Record asking whether the Hettinger Public School District Board violated N.D.C.C. § 44-04-20 by holding a series of smaller gatherings regarding school business, collectively involving a quorum of the members of the Board, which

LETTER OPINION 2000-L-125 July 7, 2000 Mr. Terence P. Devine Nelson County State’s Attorney PO Box 428 Lakota, ND 58344-0428 Dear Mr. Devine: Thank you for your letter asking whether the same individual may serve as a teacher employed by a multidistrict special education unit and as an elected member of a school district board which is a member of that same multidistrict special education unit. Although there is no statute that prohibits the holding of these two offices by one person, it is

N.D.A.G. Letter to Keller (July 6, 2000) July 6, 2000 Mr. Ross Keller Hatton City Attorney PO Box 220 Hillsboro, ND 58045-0220 Dear Mr. Keller: Thank you for your letter requesting my opinion on the effect of N.D.C.C. §§ 6-09.4-22 and 61-02-68.18 on the city of Hatton’s (City) agreement with the Grand Forks-Traill Water Users, Inc. (Water Users). Since you submitted your request, a member of my staff has contacted you and the Water Users’ attorney on several occasions to obtain further information and to clarify your request. Those discussions have resulted in a better understanding

LETTER OPINION 2000-L-122 July 6, 2000 Honorable Wanda Rose State Representative 1429 Pocatello Drive Bismarck, ND 58504-6451 Dear Representative Rose: Thank you for your letter asking about the “demotion” of a state employee. In any situation involving state employee personnel, it is possible that one of my assistants has consulted with the state agency involved or that this office will be representing a state agency in a contested proceeding involving a state employee. Therefore, caution must be used in resp