North Dakota Attorney General Opinions

OPINION 78-186 April 11, 1978 (OPINION) Mr. Irvin Riedman, Director Parole and Probation Department State of North Dakota Box 1497 Bismarck, ND 58505 Dear Mr. Riedman: This is in response to your letter dated March 9, 1978. In that letter you bring to our attention the following facts and questions: We seem to be having a lot of problems with the SUSPENDED SENTENCE law. It was changed in 1977 so that the judge has jurisdiction over people on suspended sentences. Many of the courts are sentencing people for 4 to 5 years and suspending 3 years/2 years and advising them t

March 31, 1978 The Honorable Burness Reed State Representative 17th District 211 Fenton Avenue Grand Forks, ND 58201 Dear Representative Reed: This is in reply to your letter of March 17, 1978, in which you set forth the following facts and questions: I am writing for an opinion on what appears to me to be a violation of the “open meetings” law as specified in NDCC 11-11-05. The Grand Forks Board of County Commissioners met in regular meeting Tuesday morning, March 14, and recessed that meeting until 1:30 Thursday, March 16. At that time they planned to name a person to s

OPINION 78-122 March 31, 1978 (OPINION) Mr. Stephen M. McLean City Attorney City of Oakes P. O. Box 20 Oakes, ND 58474 Dear Mr. McLean: This is in response to your letter to this office dated February 9, 1978. In your letter you bring the following facts and questions to our attention: I am presently the City Attorney for the City of Oakes, N.D. In April we will be holding elections for Mayor, Councilmen, and Police Magistrate. (Signed petitions must be in by March 4, 1978). The issue has been raised whether or not any attorney who is a County Justice in a different co

OPINION 78-174 March 15, 1978 (OPINION) The Honorable Evan E. Lips State Senator, 47th District P. O. Box 775 Bismarck, ND 58501 Dear Senator Lips: This is in reply to your letter of March 3, 1978, relative to the nonrenewal of a teacher's contract under Section 15-47-38(5) of the N.D.C.C. You state the following facts and questions: A matter has arisen which is of the utmost concern to North Dakota school boards and which they have requested I communicate with you about. The issue is of considerable importance and I feel an Opinion needs to be issued to direct our schoo

OPINION 78-157 March 15, 1978 (OPINION) The Honorable Gary J. Nelson State Senator, 22nd District Box 337 Casselton, ND 58012 Dear Senator Nelson: This is in reply to your letter of March 9, 1978, wherein you set forth the following facts and questions: The question I have, concerns section 154 of the Constitution. The current method used to establish the number of children of school age is the school census. My question is, would it in your opinion be in conflict with the constitution to use ADM (average daily membership) or some other method to determine the number of ch

February 23, 1978 Mr. Russell Staiger Assistant Director State Planning Division State Capitol Bismarck, North Dakota 58505 Dear Mr. Staiger: This is in reply to your letter of February 15, 1978, relative to the open records statute. You state the following facts and questions: Recently the State Planning Division received a request for copies of documents related to an evaluation of the eight regional councils which is currently underway. The requested documents are in limited numbers and therefore, the Division would have to reproduce additional copi

OPINION 78-213 February 23, 1978 (OPINION) Mr. John Olson Burleigh County State's Attorney Burleigh County Courthouse P. O. Box 1901 Bismarck, ND 58501 Dear Mr. Olson: This is in reply to your letter of January 3, 1978, requesting an opinion relative to the proper fee to be charged by the clerk of the district court for the filing of a petition for administration of a trust, pursuant to Chapter 59-04, North Dakota Century Code. As your point out, no specific fee is provided at either Chapter 59-04 or Section 11-17-04 (pertaining to fees to be charged by the clerk of the dist

OPINION 78-49 February 22, 1978 (OPINION) Mr. Robert W. Kinsey State's Attorney Divide County Crosby, ND 58730 Dear Mr. Kinsey: This is in reply to your letter of February 15, 1978, relative to Chapter 21-03 of the N.D.C.C. You state the following facts and questions: I have been asked to seek a determination from your office relative to the requirements which a political subdivision must make of a national bank when the subdivision deposits funds in the bank. The Federal Deposit Insurance Company has raised the amount of insurance for political subdivisions to $100,000.

OPINION 78-135 February 15, 1978 (OPINION) Ms. Alisa Simonson Director North Dakota State Laboratories and Consumer Affairs Lock Box 937 Bismarck, ND 58501 Dear Ms. Simonson: This is in response to your letter of February 2, 1978, wherein you make inquiry of this office relative to Section 19-10-19 of the North Dakota Century Code and the effect of amendments thereto. You submit the following facts and questions in your letter: At the present time, the Laboratories Department collects an inspection fee of one-twentieth of a cent for each gallon of certain petroleum produc

OPINION 78-131 January 27, 1978 (OPINION) Mr. Robert A. Keogh New England City Attorney Box 1202 Dickinson, ND 58601 Dear Mr. Keogh: This is in response to your letter to this office dated January 6, 1978, requesting our opinion as to whether under state law it " . . . is permissible for the City to employ either full-time or part-time policemen who are under the age of 21 years." A search of state statutes discloses no law mandating a minimum age at which a policeman may be employed by a city in such a capacity. While there is no specific law dealing with this subject, other

December 22, 1977 Mr. Thomas B. Jelliff Grand Forks County State’s Attorney P.O. Box 607 Grand Forks, North Dakota 58201 Dear Mr. Jelliff: This is in reply to your letter of December 7, 1977, relative to the appointment to fill a vacancy in the office of county judge in 1976. You state the following facts: “At some time in November of 1975, Judge smith, then County Judge, tendered his letter of intention to resign the position of County Judge effective January 3, 1977, as he would be sworn in that date as District Judge. “The Commissioners through the local Bar Association put out a call for a

OPINION 77-17 December 7, 1977 (OPINION) Mr. Mike L. Halpern City Attorney City of Glen Ullin Glen Ullin, ND 58631 Dear Mr. Halpern This is in response to your letter to this office dated November 22, 1977. In that letter you set out certain portions of Sections 40-20-05, 40-18-01 and 40-06-01 of the North Dakota Century Code, all relating to the jurisdiction state law grants to cities in terms of the enforcement of city ordinances. You then quote from Section 1.0101 of the city ordinances of your city which you state to be as follows: "The jurisdiction of the City of Gl

November 15, 1977 The Honorable Wayne Stenehjem State Representative, District 42 The Honorable Raymon Holmberg State Senator, District 17 2122 12th Avenue North Grand Forks, North Dakota 58201 Dear Representative Stenehjem and Senator Holmberg: This is in reply to your letter of November 4, 1977, wherein you set forth the following facts and questions: “We would respectfully request an opinion from your office regarding provisions in the Constitution and statutes of North Dakota relating to open meetings of governmental bodies. “Specifically, does North Dakota's law require that all official

OPINION 77-68 November 8, 1977 (OPINION) Ms. Janet Sauter Secretary, Public Service Commission State Capitol Bismarck, ND 58505 Dear Ms. Sauter: This is in response to your letter of October 6, 1977, wherein you request an opinion concerning the authority of the North Dakota Public Service Commission to enforce and administer the initial regulatory program which is being promulgated pursuant to the Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87, signed into law on August 3, 1977). You submit the following in your letter of inquiry: "On September 7, 19

OPINION 77-53 November 4, 1977 (OPINION) The Honorable Byron Knutson Commissioner North Dakota Insurance Department Capitol Building Bismarck, ND 58505 Dear Mr. Knutson: This is in response to your letter of October 18, 1977, wherein you request an opinion of this office relative to Rules and Regulations of the Insurance Department concerning coordination of benefits under groups coverages. You have also enclosed related correspondence and copies of the policies to which your inquiry relates. You submit the following in your letter of inquiry: A controversy has developed

October 12, 1977 Mr. Dale W. Moench Attorney At Law P.O. Box 370 Dickinson, North Dakota 58601 RE: Open Meetings - 44-04-19, NDCC Dear Mr. Moench: This is in reply to your letter of September 21, 1977, relative to the application of Section 44-04-19 of the NDCC requiring open meetings of public bodies to the occupational and professional boards. Your request is made in your capacity as special assistant attorney general for the Board of Hairdressers and Cosmetologists. I am not aware of any previous opinions of this office which have considered this precise question. However, I believe the

October 5, 1977 Mr. James T. Odegard Assistant State ’ s Attorney Grand Forks County P.O. Box 607 Grand Forks, ND 58201 RE: Open Records Statute Section44-04-18 Dear Mr. Odegard: This is in reply to your letter of September 8, 1977, relative to the above captioned matter. You stat the following facts and questions: “ Your opinion on the following question would be appreciated. “ This request is a follow-up to our telephone conversation of July 7, 1977, relative to the above cited statute. “ Since the time of our telephone call, we have been presented a copy of a letter of August

OPINION 77-56 September 28, 1977 (OPINION) Mr. Robert G. Gregg Project Manager/Secretary Lower Yellowstone Irrigation District #2 Sidney, MT 59270 Dear Mr. Gregg: This is in response to your letter of September 16 wherein you state: We have received copies of a memorandum and applications to the State of North Dakota whereby we might file for "Application for Eligibility Federal Surplus Personal Property Program." As we feel we are unique in some respects, we would respectfully ask for your opinion as to whether we could possibly be eligible. The Federal Property and Admini

OPINION 77-93 September 19, 1977 (OPINION) Workmen's Compensation Bureau Russel Building - Highway 83 North Bismarck, ND 58505 Attention: Richard J. Gross, Counsel Dear Mr. Gross: You state that, as a result of the case of Lowe v. North Dakota Workmen's Compensation Bureau, 66 N.D. 246, 264 N.W. 837 (1936), the North Dakota Workmen's Compensation Bureau has been informing custom farm operators - such as custom combiners and custom hay movers and stackers - that they are not required to have workmen's compensation coverage due to the farm exemption provided for in Section 65-

OPINION 77-32 August 25, 1977 (OPINION) Mr. John E. Jacobson Mercer County State's Attorney Mercer County Courthouse Stanton, ND 58571 Dear Mr. Jacobson: This is in response to your letter in which you make the following inquiry: This is to request your opinion as to the question whether a county may contract with an electrical utility to provide plantsite security during the construction phase of a new facility. I am enclosing a copy of the proposed contract. The county feels that entering into such a contract would prevent the loss of trained deputies who could possibly b

August 15, 1977 Mr. W. Van Heuvelen Executive Officer North Dakota State Department of Health State Capitol Bismarck, ND 58505 Dear Mr. Van Heuvelen: This is in response to your letter of 29 July 1977 indicating that your department has been working with a named oil company refinery to develop systems for use of their waste heat. You indicate that presently there is an investigation of using the waste heat to control temperatures in greenhouses so that certain vegetables could be grown throughout the entire year. You indicate that since the company is a corporation they have rai

OPINION 77-42 August 11, 1977 (OPINION) Mr. Wilbur Boldt Deputy Commissioner North Dakota Game and Fish Department Bismarck, ND 58505 Dear Mr. Boldt: This is in response to your letter of August 8, 1977, wherein you request an opinion of this office relative to prohibitions contained in Section 20.1-04-02 of the North Dakota Century Code, as amended, as the same relates to a possible permit proposed to be issued by your department for the purpose of using the plumage of game birds for various and sundry purposes. You submit the following in your letter of inquiry: Your opi

OPINION 77-36 August 1, 1977 (OPINION) Mrs. Irene E. Sage, R.N. Executive Director North Dakota Board of Nursing 219 North Seventh Street Bismarck, ND 58501 Dear Mrs. Sage: In your letter of May 25, 1977, you request the opinion of the Attorney General's Office regarding the powers and duties of the Board of Nursing over nursing education programs as set forth in that letter. Specifically you ask the Board's responsibility regarding: 1. Establishing standards for all nursing education programs or acknowledging programs accredited by national nursing accrediting agencies.

July 19, 1977 Mr. Dewel E. Viker, Jr. State’s Attorney For Traill County Box 696 Hillsboro, ND 58045 Dear Mr. Viker: This is in reply to your letter of July 13, 1977, relative to the open meeting statute. You state the following facts and questions: “I have reviewed N.D.C.C. Section 44-04-19 as amended, which is commonly known as the “open meeting law”. “Among the duties of the States Attorney, I am required to act as counsel for the County in civil law suits in which the County is the Plaintiff, for example condemnation suits for acquiring right-of-way, and also in suits a

OPINION 77-87 July 19, 1977 (OPINION) Mr. John T. Paulson Barnes County States Attorney Valley City, ND 58072 Dear Mr. Paulson: This is in reply to your request for an opinion on your question of how Section 57-20-20 N.D.C.C. as amended by the 1974 Legislature should be applied to the facts quoted from your letter as follows: A taxpayer has paid his 1976 real estate taxes under protest. The only reason that he has given for paying under protest is that he feels that taxes are too high. The question that has been raised is whether or not he must file an application for abate

OPINION 77-47 June 20, 1977 (OPINION) Mr. Thomas B. Jelliff States Attorney Grand Forks County P. O. Box 607 Grand Forks, ND 58201 Dear Mr. Jelliff: This opinion is given in response to a request by your office dated May 26, 1977, as follows: "I am requesting an opinion regarding the proper action of hospitals, the reporting to law enforcement agencies of traumatic injuries. Our research of the North Dakota Century Code has failed to disclose any specific statute which pertains to the reporting of hospitals. We would therefore like an opinion regarding: 1. Do hospita

OPINION 77-8 June 2, 1977 (OPINION) Mr. Glenn Dill Attorney at Law Kenmare, ND 58746 Dear Mr. Dill: This is in response to your letter of 18 May 1977, as city attorney for a named city, indicating that the city request an official Attorney General's opinion on the question of: "Can the Auditor of a City also be appointed Chief of Police?" Statutes you cite would indicate that the city in question is a council, as opposed to a commission, type city. You indicate that you have advised the city that Section 40-14-07 of the North Dakota Century Code which prohibited the Auditor f

OPINION 77-40 June 2, 1977 (OPINION) The Honorable Steven J. Swiontek State Representative District 45 134D Ct. University Village Fargo, ND 58102 Dear Representative Swiontek: This is in response to your letter of May 20, 1977, wherein you expressed concern about the odor from the American Crystal Sugar facility in Moorhead, Minnesota. With regard to the Environmental Law Enforcement Act of 1975, (copy enclosed) this Act provides a procedural remedy by which an "aggrieved" plaintiff may directly enforce environmental statutes and regulations otherwise enforceable by state a

OPINION 77-51 May 26, 1977 (OPINION) The Honorable Byron Knutson Commissioner of Insurance State Capitol Bismarck, ND 58505 RE: H.B. 1594 Dear Mr. Knutson: This is in reply to your letter of May 19, 1977, relative to H.B. 1594. You state the following facts and questions: "We have been asked to review the above legislation because of the possibility of complications arising from the use of the word 'following' on line ten. It appears that if the bill is interpreted literally insurance coverages will be for the usual period, i.e., monthly, quarterly, semiannual or annual

OPINION 77-78 May 17, 1977 (OPINION) The Honorable Water Christensen State Treasurer State Capitol Bismarck, ND 58505 Dear Mr. Christensen: This is in reply to your letter of May 10, 1977, in which you set forth the following facts and questions: "The 1977 legislature changed the distribution formulas of both the coal conversion facilities tax and the coal severance tax. The money collected from these two taxes is collected on a quarterly basis and is submitted to the State Treasurer's Office for distribution the quarter following the period for which it was collected. I re

OPINION 77-29 May 16, 1977 (OPINION) Hon. J. B. Graham, County Justice Dickey County Courthouse Ellendale, ND 58436 Dear Judge Graham: This is in response to your letter of March 24, 1977, wherein you request an opinion of this office relative to payment for costs of juries in those instances where a change of venue may occur, changing the place of trial to an adjoining county. You submit the following situation and expressions in your letter: I have a problem that confronts me and in looking through the County Justice Statutes, I am unable to find the answer. What is happe

OPINION 77-44 May 12, 1977 (OPINION) Mr. Walter R. Hjelle Highway Commissioner State Highway Department Bismarck, ND 58505 Dear Mr. Hjelle: This is in reply to your letter of May 11, 1977, in which you asked the following questions: 1. Does the Highway Department have authority to prohibit landowners who abut the highway from draining into the highway ditches? 2. Does the Highway Commissioner have authority to purchase wetlands and to replace those non federal easement wetlands which are or might be affected by the project? In response to the first question concerning d

OPINION 77-11 April 27, 1977 (OPINION) Mr. John A. Zuger City Attorney P. O. Box 1695 Bismarck, ND 58501 Dear Mr. Zuger: This is in response to your inquiry dated April 12, 1977, which was as follows: "The City of Bismarck has appointed a commission to prepare a home rule charter for presentation to the electorate. Section 40-05.1-07 provides that the home rule charter adopted by a city may be amended or repealed by proposals submitted to and ratified by the qualified electors of the city in the same general manner as provided in Section 40-05.1-02 and Section 40-05.1-04 fo

OPINION 77-5 April 22, 1977 (OPINION) Mr. Robert E. Keim Secretary, State Banking Board Department of Banking and Financial Institutions State Capitol Bismarck, ND 58505 Dear Mr. Keim: This is in response to your letter of April 19, 1977, in which you draw out attention to the following language in Section 6-02-06, North Dakota Century Code. ". . .A determination in favor of such organization must be joined in by a majority of all the members of the board." You then ask the following question: "Since the State Banking Board is comprised of six members, does the foregoing l

OPINION 77-25 April 15, 1977 (OPINION) Mr. T. N. Tangedahl Executive Director Social Service Board of North Dakota State Capitol Bismarck, ND 58505 Dear Mr. Tangedahl: This is in reply to your letter of April 13, 1977, relative to whether First Amendment rights are protected under North Dakota law. Your inquiry is as follows: "Whether, under North Dakota, a parent or guardian who does not provide specified medical treatment for a child because of legitimate practicing of religious beliefs may, for that reason alone, be considered a 'negligent' parent or guardian." Subsectio

OPINION 77-14 April 15, 1977 (OPINION) Mr. Aloys Wartner III City Attorney City of Harvey Harvey, ND 58341 Dear Mr. Wartner: This is in response to your letter dated March 30, 1977. In that letter you set out the following: I would like an opinion based upon section 40-20-05 of the North Dakota Century Code as amended. I would like to know whether or not this section would allow police officers from the City of Harvey to patrol the highway from a distance of 1 1/2 miles beyond the city limits and issue traffic tickets for a traffic violation, or whether the section shoul

OPINION 77-90 April 6, 1977 (OPINION) Mr. John T. Burke Walsh County State's Attorney Walsh County Courthouse Grafton ND 58237 Dear Mr. Burke: This opinion is written in response to your request for an opinion concerning the application of subsection 15 of section 57-02-08, N.D.C.C., to a certain farm structure. Specifically, your concern is directed toward that taxable status for real property tax purposes of a potato warehouse located upon a lot and block within the limits of Auburn, an unincorporated city. You have stated further that Auburn is in Farmington Township,

OPINION 77-82 April 5, 1977 (OPINION) Mr. John F. Burke Walsh County State's Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Burke: This opinion is written to you as the result of your request for an opinion concerning the rate of interest to be charged an estate for late payment of an estate tax after July 1, 1975, when the deceased died prior to that date. Your letter quotes the following from Section 57-37-16, N.D.C.C.: "The tax imposed by this chapter shall be due and payable at the death of the decedent, and, if not paid within fifteen months after the date

OPINION 77-1 March 18, 1977 (OPINION) The Honorable Robert Peterson State Auditor State Capitol Bismarck, ND 58505 Dear Mr. Peterson: This is in reply to your letter of March 14, 1977, in which you set forth the following facts and questions: "We request an opinion to determine the legality of the procedure whereby departments of State Government enter into agreements for the provision of material or services before the appropriation which will pay for the goods and services becomes effective. Examples of these types of transactions are: 1. A department orders vehicles i

OPINION 77-65 February 24, 1977 (OPINION) Ms. Adeline Vondrachek North Dakota State Board of Hairdressers and Cosmetologists Box 1544 - 106 North Third Suite M 101 Dakota Hotel Grand Forks, ND 58201 Dear Ms. Vondrachek: This is in response to your letter of January 15, 1977, wherein you request an opinion of this office concerning Chapter 43-11 of the North Dakota Century Code as it relates to persons engaged in electronic hair removal, electronic skin care, and application of sculptured or artificial fingernails. You submit that persons and establishments not licensed by th

OPINION 77-85 February 23, 1977 (OPINION) Mr. Garylle B. Stewart Assistant City Attorney c/o Office of City Attorney Fargo, ND 58102 Dear Mr. Stewart: This opinion is written in response to your request for an opinion concerning the proper application of Section 57-02-08.1 N.D.C.C. You have stated that your request is made as the result of an inquiry made of your office by an attorney representing several Fargo property owners. Specifically, the facts presented to you are as follows: A husband and wife who qualify for the homestead credit provisions of Section 57-02-08.1

OPINION 77-21 February 4, 1977 (OPINION) Mr. Theodore Kessel, Jr. City Attorney LaMoure, ND 58458 Dear Mr. Kessel: This is in reply to your letter of February 2, 1977, wherein you state the following facts and questions: "I am the city attorney of LaMoure, North Dakota. The City has commenced zoning and planning procedures pursuant to Chapters 40-47 and 40-48 of the North Dakota Century Code. By Ordinance adopted June 7, 1976 the Council extended its zoning and planning authority over unincorporated territory within one-half (1/2) mile of its corporate limits pursuant to

OPINION 77-27 January 24, 1977 (OPINION) The Honorable Oscar Solberg, Speaker House of Representatives Forty-fifth Legislative Assembly State of North Dakota Dear Mr. Speaker: This is in response to the request for an opinion which was initiated by Representative Robert O'Shea and relayed to this office by you on January 20, 1977. In that letter you inquired ". . . whether or not a member of a Board of County Commissioners could expend tax money for the purpose of hiring a lobbyist." This office issued an opinion on January 17, 1951, addressed to the Honorable Dave M. Robinson

OPINION 77-73 January 17, 1977 (OPINION) Mr. R. E. Lommen State Land Commissioner State Capitol Bismarck, ND 58505 Dear Mr. Lommen: This is in response to your letter of February 19, 1976, wherein you request an opinion of this office relative to property to be presumed abandoned pursuant to the Abandoned and Unclaimed Property Act (N.D.C.C. 47-30). You submitted the following facts and inquiries in your letter: "The Board of Directors of the Tuttle Farmers Elevator passed a resolution on June 26, 1975, (a copy of which is attached to this letter) at the advice of the Farm

January 6, 1977 The Honorable Robert Peterson State Auditor State Capitol Bismarck, ND 58505 Dear Mr. Peterson: This is in reference to the audit report of the University of North Dakota which you submitted to this office pursuant to section 44-08-05.1 of the NDCC. You also refer to "questions of law in other areas” for our consideration and whatever action we may deem necessary. While your letter did not specify those areas of the report with which we should be concerned (we assume you did not believe that all of the findings and recommendations contained therein should be reviewed by this of

OPINION 77-58 January 3, 1977 (OPINION) Mr. Ben Meier Secretary of State State Capitol Building Bismarck, ND 58505 Dear Mr. Meier: This is in response to your letter requesting an opinion in regard to the North Dakota Lobbying Law as defined in section 54-05.1-02, N.D.C.C. The wording of this section provides that "the provisions of this chapter shall apply to any person except a legislator or a private citizen appearing on his own behalf and except employees of the state or its political subdivisions acting in their official capacity who, in any matter whatsoever, directly

OPINION 76-161 December 13, 1976 (OPINION) Mr. Leonard E. Larsen, Manager Fire and Tornado Fund State Capitol Bismarck, ND 58505 Dear Mr. Larsen: This is in response to your letter of November 29, 1976, wherein you inquire of this office as to whether or not the State Fire and Tornado Fund must comply with Section 11-11-28 of the North Dakota Century Code which requires the filing of either a certified check or bond on the submission of a bid when the Fire and Tornado Fund submits a bid on public buildings pursuant to the provisions of Section 26-24-09 of the North Dakota Cen