North Dakota Attorney General Opinions

LETTER OPINION 2000-L-6 January 20, 2000 Mr. John J. Mahoney Oliver County State’s Attorney PO Box 355 Center, ND 58530-0355 Dear Mr. Mahoney: Thank you for your letter asking whether the provisions of North Dakota Century Code (N.D.C.C.) § 31-13-03 relating to DNA testing for sexual offenders are applicable to a defendant who was convicted prior to the enactment of the statute, but was in the custody of the Department of Corrections and Rehabilitation on or after August 1, 1995. In 1995, the Fifty-fou

LETTER OPINION 2000-L-4 January 18, 2000 Mr. Timothy A. Priebe Dickinson City Attorney PO Box 1097 Dickinson, ND 58602-1097 Dear Mr. Priebe: Thank you for your letter asking whether law enforcement records relating to the death of a juvenile inmate at a local correction center are confidential under N.D.C.C. § 27-20-52 or open to the public under N.D.C.C. § 44-04-18. I will assume for the purposes of your question that the records do not pertain to an active criminal investigation. See N.

<PAGE NAME="p.18">STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-04 Date issued: January 12, 2000 Requested by: Kent Reierson, Williston City Attorney - QUESTION PRESENTED - Whether a home rule city may use sales tax revenue to fund construction of a school to be owned, maintained and primarily used by a school district under a joint powers agreement between the city and the school district. - ATTORNEY GENERAL'S OPINION - It is my opinion that a home rule city may use sales tax reve

LETTER OPINION 2000-L-1 January 7, 2000 Mr. David E. Reich Pearce & Durick P.O. Box 400 Bismarck, ND 58502-0400 Dear Mr. Reich: Thank you for your letter regarding the scope of immunity provided by N.D.C.C. § 44-23-08.3. You ask whether N.D.C.C. § 43-23-08.3 precludes the State Real Estate Commission from disciplining individuals licensed by the Commission for disclosure or failure to disclose information about registered sexual offenders. N.D.C.C. § 43-23-08.3 provides “[a] licensee is not liable for any

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-03 Date issued: January 6, 2000 Requested by: Robin Huseby, Barnes County State’s Attorney - QUESTIONS PRESENTED - I. Whether an airplane licensed for aerial spray application is an implement of husbandry under N.D.C.C. § 39-01-01(26). II. Whether an airplane may use a county road for a landing strip. - ATTORNEY GENERAL'S OPINIONS - I. It is my opinion that aircraft is not an implement of husbandry under N.D.C.C. § 39-01-01(26) even when used to aerially spray agricul

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-02 Date issued: January 6, 2000 Requested by: Terence Devine, Nelson County State’s Attorney - QUESTIONS PRESENTED - I. Whether the public may travel any place within the statutory section line right of way regardless of how the land is used by the landowner. II. Whether a person is subject to criminal prosecution if, while traveling on an unimproved section line right of way over property which the person does not own, that person trampl

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-01 Date issued: January 6, 2000 Requested by: Syver Vinje, North Dakota Securities Commissioner - QUESTIONS PRESENTED - I. Whether a non-home rule city or a non-home rule county may issue, or be a promoter or sponsor of, equity securities on behalf of a private company which would be sold to the general public in this state. II. Whether a home rule city or a home rule county may issue, or be a promoter or sponsor of, equity securities on beha

LETTER OPINION 99-L-132 December 30, 1999 Ms. Kristi Pettit Assistant City Prosecutor City of Grand Forks PO Box 5299 Grand Forks, ND 58206-5299 Dear Ms. Pettit: Thank you for your letter presenting several questions concerning the authority of a municipal judge to issue a search warrant. Based upon my review of statutory and administrative code provisions, as reflected in the discussion below, it is my opinion that a municipal judge has authority to issue a search warrant as a “state magistrate” within that

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-17 Date issued: December 23, 1999 Requested by: Lonnie W. Olson, Ramsey County State’s Attorney - QUESTIONS PRESENTED – I. Whether a water resource board levying a special assessment pursuant to N.D.C.C. § 61-16.1-40.1 may levy a special assessment in an amount exceeding the maximum levy provided in the statute. II. Whether there is any process, other than that established under N.D.C.C. § 61-16.1-40.1, by which a water resource board may levy a special asse

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-16 Date issued: December 23, 1999 Requested by: Bruce Hagen, President, North Dakota Public Service Commission - QUESTION PRESENTED - Whether the 1995 amendments to N.D.C.C. § 49-21-01.2 removed the jurisdiction of the Public Service Commission under N.D.C.C. § 49-04-05 to review the sale or merger of telephone cooperatives and small telecommunications companies with fewer than 8,000 local exchange subscribers. - ATTORNEY GENERAL'S OPINION - It is my opinion

LETTER OPINION 99-L-128 December 21, 1999 Wayne P. Jones Ransom County State’s Attorney P.O. Box 391 Lisbon, ND 58054-0391 Dear Mr. Jones: Thank you for your letter requesting my opinion on two issues relating to the proposed acquisition of certain property in Ransom County by The Nature Conservancy (TNC). Your first question asks whether TNC, which must obtain the approval of the Governor prior to purchasing property in North Dakota pursuant to N.D.C.C. § 10-06.1- 10(3), must also comply with loca

LETTER OPINION 99-L-126 December 9, 1999 Mr. James T. Odegard Grand Forks County State’s Attorney PO Box 5607 Grand Forks, ND 58206-5607 Dear Mr. Odegard: Thank you for your letter questioning whether the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20, permits the sharing of information between juvenile and adult prosecutors in your office. The state’s attorney is required to present evidence in support of any allegations of a juvenile petition and to “otherwise conduct the proceedings on behalf of the state

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-10 DATE ISSUED : December 7, 1999 ISSUED TO : Duane Schurman, Attorney, Freemont Township CITIZEN’S REQUEST FOR OPINION On October 28, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeff Amoth asking whether the Freemont Township Board of Supervisors violated N.D.C.C. § 44-04-20 by failing to grant his request for notice of its next meeting. FACTS PRESENTED In a letter dated October 15, 1999, 1 Mr. Amoth asked the Freemont Township Board of Supervisors (Board) fo

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-15 Date issued: November 29, 1999 Requested by: Dr. Wayne G. Sanstead, Senator Tony Grindberg, Representative Al Carlson - QUESTION PRESENTED - May North Dakota school districts participating in one or more United States Department of Agriculture child nutrition programs contract with child care centers and other organizations providing services to children to provide meal service to those centers? - ATTORNEY GENERAL'S OPINION - It is my opinion that a school district d

LETTER OPINION 99-L-121 November 26, 1999 Honorable Rich Wardner State Senator 1042 12th Avenue West Dickinson, ND 58601-3654 Dear Senator Wardner: Thank you for your letter regarding change of venue and how it affects money judgments in domestic relation and child support actions. Specifically, you ask the following questions regarding the effect of a change in venue: 1. If a money judgment has been docketed in the case and county of venue and the judgment remains unsatisfied, does that judgment r

LETTER OPINION 99-L-118 November 26, 1999 Mr. A. Roger Kringlie Northwood City Attorney P.O. Box 418 Northwood, ND 58267-0418 Dear Mr. Kringlie: Thank you for your letter requesting my opinion on the legality of an ordinance adopted by the city of Northwood which requires a city- issued franchise for the transmitting, furnishing, delivering or receiving of electric energy. If issued, the franchise would be effective for twenty-five years. Northwood City Ordinance no. 355. Your letter indicates

LETTER OPINION 99-L-115 November 18, 1999 Mr. Howard Swanson Grand Forks City Attorney PO Box 12909 Grand Forks, ND 58208-2909 Dear Mr. Swanson: Thank you for your letter asking whether a member of a governing body of a public entity who was absent from a properly closed meeting may listen to the recording of the executive session without the disclosure resulting in a waiver of the city's right to maintain the exempt status of the recording under the state open records law. Your question is a hyb

LETTER OPINION 99-L-112 November 18, 1999 Honorable Larry J. Robinson State Senator 3584 Sheyenne Circle Valley City, ND 58072-9545 Dear Senator Robinson: Thank you for your letter asking if N.D.C.C. § 15-28-11 permits a school board to place on the ballot the question of whether the school board meeting minutes should be published, a year after the question was first approved by the voters. You state that the Valley City Public School District placed this question on the ballot in the June 1999

LETTER OPINION 99-L-110 November 18, 1999 Honorable Tom Fischer State Senator 2823 64 th Ave. S. Fargo, ND 58104-7407 Dear Senator Fischer: Thank you for your letter asking whether Fargo City Code § 13-0509 conflicts with state bidding statutes. The portion of Fargo City Code § 13-0509 that you question is as follows: 13-0509. Awarding of bid contracts – Bond required – The contract or contracts [for the collection, transportation or disposal of solid waste], as the case may be, shall be awarded

LETTER OPINION 99-L-107 November 17, 1999 Honorable Audrey Cleary State Representative 104 Seminole Avenue Bismarck, ND 58501-3544 Dear Representative Cleary: Thank you for your question on whether a specific school psychologist is required to participate in the Teachers’ Fund for Retirement (TFFR). Since a person’s membership in any specific state retirement plan is confidential, I will refrain from using the name of the specific employee in my opinion, but will refer to that person as the

LETTER OPINION 99-L-104 November 4, 1999 Mr. G. David Massey Manager, Targeted Services Division Department of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Massey: Thank you for your letter requesting an opinion regarding “North Dakota’s definition of the North Dakota Youth Correctional Center as a local educational agency.” In your letter, you cite 20 U.S.C. § 8801 for the definition of “local educational agency.” North Dakota’s law does not define that term, so all I can provide

November 1, 1999 Mr. Arden Haner Chairman Ward County Water Resource Board 34491 72nd St SW Douglas, ND 58735-9410 Dear Mr. Haner: Thank you for your letter inquiring on behalf of the Ward County Water Resource Board whether the vice chairman of a water resource board may call an emergency meeting without the chairman's knowledge, in a case where the chairman has apparently withdrawn from participation in the matter due to a conflict of interest. Based on conversations a member of my staff had with you, vice chairman Maurice Foley, and secretary-treasurer Nancy Ali, it ap

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-09 DATE ISSUED : November 1, 1999 ISSUED TO : Jeff Sheets, Sioux County State's Attorney CITIZEN’S REQUEST FOR OPINION On October 6, 1999,, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Sioux County Commissioner Deb Gullickson asking whether the other two members of the Sioux County Commission and the Sioux County State's Attorney violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting without her knowledge and without public notice. FACTS PRESENTED The Sioux County Board o

LETTER OPINION 99-L-98 November 1, 1999 Mr. Theodore Kessel, Jr. LaMoure County State’s Attorney PO Box 216 LaMoure, ND 58458-0216 Dear Mr. Kessel: Thank you for your letter asking about the authority of the LaMoure Police Department to enforce state and local laws at certain city-owned property at Lake LaMoure. You indicate that this property, which is located about four miles south of the LaMoure city limits, was deeded to the city by the State Game and Fish Department in 1995. You fi

LETTER OPINION 99-L-94 October 19, 1999 Honorable Roger Johnson Commissioner of Agriculture 600 East Boulevard Ave., Dept. 602 Bismarck, ND 58505-0020 Dear Commissioner Johnson: Thank you for your letter asking whether certain amendments in S. Bill 2009 gave the Pesticide Control Board the authority to fund a position to work on Canada-U.S. pesticide harmonization issues. See 1999 N.D. Sess. Laws ch. 31. Section 3 of S. Bill 2009 states: The minor use pesticide fund is created as a special fund in the state

LETTER OPINION 99-L-92 October 15, 1999 Ms. Mary K. O’Donnell Rolette County State’s Attorney PO Box 1079 Rolla, ND 58367-1079 Dear Ms. O’Donnell: Thank you for your letter asking whether a public school district must pay the costs of special education students that have open enrolled into another school district when the students in question live on an Indian reservation in North Dakota. Open enrollment in North Dakota is governed by N.D.C.C. ch. 15-40.3 and the section related to the open enrollment

LETTER OPINION 99-L-89 October 15, 1999 Mr. Sparb Collins Executive Director North Dakota Public Employees Retirement System 400 East Broadway, Suite 505 P.O. Box 1214 Bismarck, ND 58502-1214 Dear Mr. Collins: Thank you for your question regarding whether the North Dakota Public Employees Retirement System Board of Trustees may decline to offer disability insurance to members of the defined contribution retirement plan despite N.D.C.C. § 54-52.6-14. Instead of offering disability insurance, the Board proposes to allow a dis

LETTER OPINION 99-L-87 September 24, 1999 Honorable Joel C. Heitkamp State Senator 16543 94 1/2 Street SE Hankinson, ND 58041-9538 Honorable Vern Thompson State Senator PO Box 25 Minnewaukan, ND 58351-0025 Dear Senators Heitkamp and Thompson: Thank you for your letters requesting my opinion on whether the assessor has any discretion in placing a value on the land that the county commission has determined meets the statutory definition for inundated agricultural land for property assessment purposes. N.D.C.C. § 57-02-27.2 govern

LETTER OPINION 99-L-83 September 13, 1999 Honorable Elwood Thorpe State Representative 600 22nd Avenue NW Minot, ND 58703-0986 Dear Representative Thorpe: Thank you for your letter asking whether the Minot City Park District may enter into a multiple year lease arrangement with the Minot Family YMCA under which the Minot Park District would lease the YMCA’s swimming pool and, in turn, hire the YMCA as manager of the leased pool. The arrangement in question appears to constitute two agreements

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-08 DATE ISSUED : September 9, 1999 ISSUED TO : Cameron Sillers, Attorney, Cavalier County Water Resource District CITIZEN’S REQUEST FOR OPINION On June 11, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeff Amoth asking whether the Cavalier County Water Resource District Board violated N.D.C.C. § 44-04-19 by discussing Mr. Amoth's complaints to the Board after he had left the meeting. FACTS PRESENTED The Cavalier County Water Resource District Board (Board)

LETTER OPINION 99-L-78 September 9, 1999 Ms. Sharon Gallagher Mandan City Attorney 205 2 nd Ave NW Mandan, ND 58554 Dear Ms. Gallagher: Thank you for your letter regarding the appointment of a current city commissioner, who is an attorney, as city attorney. I understand that your questions have changed slightly due to events which have occurred since you originally requested this opinion. Your first question, whether a city commission may appoint one of its members as city attorney, is answered b

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-14 Date issued: September 8, 1999 Requested by: Edwin J. Nagel, Jr., State Auditor’s Office - QUESTION PRESENTED - Whether a county may loan county general funds or county road funds to an organized township for the purpose of constructing or repairing township roads. - ATTORNEY GENERAL’S OPINION - It is my opinion that a county may loan county general funds or county road funds to an organized township for the purpose of constructing or repairing

LETTER OPINION 99-L-75 September 2, 1999 Honorable Debra S. Lundgren State Representative 7082 Highway 13 Kulm, ND 58456-9705 Dear Representative Lundgren: Thank you for your letter requesting my opinion on whether county commissioners have the authority to select which land classifications they will recognize for tax assessment purposes. You state that two of the counties in your district have decided not to recognize the inundated land classification. The authority to classify property for tax assess

August 26, 1999 Mr. F.C. Rohrich Attorney at Law PO Box 657 Linton, NO 58552-0657 RE: Costs of Incarceration Dear Mr. Rohrich: Your letter regarding court costs and costs of incarceration has been referred to me for reply. In your letter, you state that the city of Linton was charged approximately $1,000 for the time a defendant was in jail for the class C felony charge of terrorizing. Attached to your letter is a copy of an arrest warrant and complaint showing a defendant was charged in the Emmons County

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-13 Date issued: August 25, 1999 Requested by: Robert R. Schaible, Deputy Secretary of State - QUESTIONS PRESENTED - I. Whether a purported Uniform Commercial Code financing statement listing the same person as both the debtor and the secured party qualifies to be filed under the Uniform Commercial Code. II. Whether a purported Uniform Commercial Code financing statement listing only nontransferable items such as birth certificates, social security numbers, drivers’

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-12 Date Issued: August 12, 1999 Requested by: Carol Olson, Department of Human Services - QUESTIONS PRESENTED - I. Whether tribal courts have inherent off-reservation subpoena power over Department of Human Services employees where the department is not a party to the tribal court proceeding. II. Whether a tribal court subpoena is an “order or judgment” under Rule 7.2 of the North Dakota Rules of Court concerning state court recognition of tribal court orders. III.

LETTER OPINION 99-L-71 August 6, 1999 The Honorable Wayne Stenehjem State Senator PO Box 6352 Grand Forks, ND 58206-6352 Dear Senator Stenehjem: Thank you for your recent letter asking whether clerks of district court are subject to the criminal history records provisions of N.D.C.C. §§ 12-60-16.1 through 12-60-16.10. You state that an informal procedure was recently received by some clerks of district court which states or implies that clerks of district court are precluded from releasing criminal rec

LETTER OPINION 99-L-68 August 6, 1999 The Honorable John Dorso House of Representatives 1121 26th Ave S Fargo, ND 58103-5728 Dear Representative Dorso: Thank you for your letter asking three questions relating to the recent decision of the State Board of Equalization (Board) that internet service providers are not included within the statutory definition of "telecommunications carrier" in N.D.C.C. § 57-34-01(4) for the purpose of the telecommunications gross receipts tax imposed under N.D.C.C. ch. 57-34. I

LETTER OPINION 99-L-65 August 6, 1999 Mr. James S. Abbott Executive Director North Dakota State Board of Accountancy 2701 S Columbia Rd Grand Forks, ND 58201-6029 Dear Mr. Abbott: Thank you for your letter asking whether the new experience requirement adopted during the 1999 Legislative Session applies to applicants who receive their initial certificate during the year 2000. If not, you further ask whether the State Board of Accountancy has discretion to impose an experience requirement on applicants f

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-11 Date issued: August 5, 1999 Requested by: Earle R. Myers, Jr., Richland County State's Attorney - QUESTION PRESENTED - Whether an earthen pond created for the treatment of wastewater generated by an agricultural or industrial facility is property which may be exempt from ad valorem taxation under N.D.C.C. § 57-02-08(38). - ATTORNEY GENERAL'S OPINION - It is my opinion that an earthen pond created for the treatment of wastewater generated by an agricultural or ind

LETTER OPINION 99-L-63 July 26, 1999 H. Jean Delaney Assistant Barnes County State’s Attorney 230 4th Street NW Room 301 Barnes County Courthouse Valley City, ND 58072-2947 Dear Ms. Delaney: Thank you for your letter asking whether North Dakota Century Code (N.D.C.C.) § 57-28-15 grants the county discretion to determine whether it will sell land acquired by tax deed for cash, or for cash and installments, or whether the purchaser may make that decision. The annual sale by the county of land acquired by tax dee

LETTER OPINION 99-L-59 July 23, 1999 Mr. Thomas E. Rutten Ramsey County Water Resource District 524 4th Avenue #12 Devils Lake, ND 58301-2490 Dear Mr. Rutten: Thank you for your letter concerning a possible conflict of interest by a Ramsey County commissioner who is a plaintiff in a lawsuit against a variety of government defendants, including the Ramsey County Water Resource District. As you relate in your letter, the possible conflict of interest would concern the authority and control a board

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-10 Date issued: July 23, 1999 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether N.D.C.C. § 50-09-29(1)(l) and North Dakota Administrative Code § 75-02-01.2-35.1, regarding Temporary Assistance for Needy Families (TANF) benefits for families who have resided in North Dakota for less than 12 months, are unconstitutional in light of the United States Supreme Court decision in Saenz v.

LETTER OPINION 99-L-57 July 6, 1999 Ms. Carol K. Olson Executive Director North Dakota Department of Human Services 600 E Boulevard Ave Dept 325 Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter concerning the applicability of Senate Bill 2076 enacted by the 1999 Legislative Assembly that exempts from public disclosure under the open records law “personal information” regarding a licensee maintained by an “occupational or professional board, association, or commission created by law.” This new la

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-07 DATE ISSUED : June 29, 1999 ISSUED TO : Ed Malazdrewicz, Chair, North Dakota Board of Examiners on Audiology and Speech-Language Pathology CITIZEN’S REQUEST FOR OPINION On March 11, 1999, April 5, 1999, and April 23, 1999, this office received requests for opinions under N.D.C.C. § 44-04-21.1 from John Skowronek, on behalf of Larry Martin, asking whether the North Dakota Board of Examiners on Audiology and Speech-Language Pathology (hereafter, Board) violated N.D.C.C. § 44-04-18 on ope

LETTER OPINION 99-L-54 June 29, 1999 Representative Ronald Nichols HC 1, Box 3 Palermo, ND 58769-9707 Dear Representative Nichols: Thank you for your request for my opinion on several issues regarding the establishment of a Mountrail County library. Your first question involves the allowable time limit by which a petition for the establishment of a county library must be completed and filed with the board of county commissioners. N.D.C.C. § 40-38- 01 states: "[t]he governing body of any city or

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-09 Date issued: June 29, 1999 Requested by: Representative Gerald O. Sveen - QUESTION PRESENTED - Whether N.D.C.C. chapters 43-20 and 43-28 allow the State Board of Dental Examiners to adopt rules authorizing dental hygienists to administer local anesthetics by injection. - ATTORNEY GENERAL'S OPINION - It is my opinion that state law does not allow the State Board of Dental Examiners to adopt rules authorizing dental hygienists to administer local anesthetics