North Dakota AG Opinions, 1995

LETTER OPINION 95-L-137 June 8, 1995 Mr. Henry C. "Bud" Wessman Executive Director North Dakota Department of Human Services State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your April 25, 1995, letter asking whether issuance of a correction order to an early childhood facility pursuant to N.D.C.C. ? 50-11.1-07.2 is a condition precedent to revoking the license of the early childhood facility. In my opinion, a license revocation

LETTER OPINION 95-L-133 May 30, 1995 Mr. John Goff Cass County State's Attorney PO Box 2806 Fargo, ND 58107-2806 Dear Mr. Goff: Thank you for your April 25, 1995, letter concerning N.D.C.C. ? 11-16-15 and the refusal of certain East Central Judicial District judges to give consent and approval for the issuance of a subpoena for a state's attorney's inquiry. You first ask whether state's attorney's inquiry subpoenas issued under N.D.C.C. ? 11-16-15 are constitutional and

LETTER OPINION 95-L-129 May 24, 1995 Honorable Rolland W. Redlin State Senator 1005 21st Street N.W. Minot, ND 58701-1724 Dear Senator Redlin: Thank you for your letter concerning the effect of Senate Bill No. 2527 on a person who resides on a military installation in North Dakota and votes in a North Dakota election. Senate Bill No. 2527 amended subsection 6 of N.D.C.C. ? 57-38-01 as follows: "Resident" applies only to natural persons and includes, for the purpose

LETTER OPINION 95-L-126 May 24, 1995 William W. Binek, Chief Counsel Public Service Commission 600 East Boulevard Avenue Bismarck, ND 58505-0480 Dear Mr. Binek: Thank you for your April 27, 1995, letter requesting my opinion regarding the applicability of the ex parte prohibitions contained in N.D.C.C. ? 28-32-12.1 to the Public Service Commission's staff counsel and other staff personnel who take an advocacy position in cases before the Commission. In response to your lette

LETTER OPINION 95-L-124 May 19, 1995 Mr. Stephen J. Rice Walsh County State's Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your letter regarding the annexation of new territory to an existing fire protection district when the owners of that territory reside in the existing district rather than the new territory. The procedure for annexing adjacent territory to an existing fire protection district is initiated by a petition signed by at

LETTER OPINION 95-L-121 May 19, 1995 Ms. Ann Mahoney Assistant State's Attorney Oliver County Courthouse Center, ND 58530 Dear Ms. Mahoney: Thank you for your letter concerning a section line closure action by the Oliver County Commission dating back to July 6, 1972. Your questions concern a "road spur which meandered off the [closed] section line" and which was apparently the linkage between the section line and a state highway. You indicate that no public easement wa

LETTER OPINION 95-L-117 May 17, 1995 Mr. Richard W. Olson McConn, Fisher, Olson & Daley, Ltd. 315 First Avenue N PO Box 5788 Grand Forks, ND 58206-5788 Dear Mr. Olson: Thank you for your letter on behalf of the city of Emerado requesting an opinion regarding the location of a hearing to be held concerning an application for a water permit under N.D.C.C. ch. 61-04. N.D.C.C. ? 61-04-06 provides that if "two or more municipal or public use water facilities request

LETTER OPINION 95-L-115 May 17, 1995 Senator Carolyn Nelson 1125 College Street Fargo, ND 58102-3433 Dear Senator Nelson: Thank you for your May 4, 1995, letter regarding a proposed amendment to the home rule charter for the City of Fargo (City). Under the proposed amendment, the City's home rule charter would authorize a sales tax for construction, maintenance, and operation of certain recreational facilities and other improvements listed in the amendment. Both the City a

LETTER OPINION 95-L-112 May 16, 1995 Mr. John R. Gregg Dunseith City Attorney PO Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your April 7, 1995, letter requesting an Attorney General's opinion on three questions relating to a city's extension of the application of its zoning regulations beyond the city limits pursuant to N.D.C.C. ? 40-47-01.1. N.D.C.C. ? 40-47-01.1 authorizes cities to extend their zoning authority beyond the city limits: 40-47-01.1. Terri

LETTER OPINION 95-L-108 May 1, 1995 Mr. Lonnie Olson Ramsey County States Attorney 524 Fourth Avenue #16 Devils Lake, ND 58301 Dear Mr. Olson: Thank you for your letter regarding setting off a fractional township from a civil township. A fractional township "may be set off from the civil township of which it is a part" if it contains "more than eighteen sections of land and borders on a lake or river." N.D.C.C. ? 58-02-19. You ask whether N.D.C.C. ? 58-02-19

LETTER OPINION 95-L-101 April 24, 1995 Senator David O'Connell Route 1, Box 78 Lansford, ND 58750 Dear Senator O'Connell: Thank you for your letter asking four questions regarding a fence and corral built on a section line in your district. In response to your letter, a member of my staff contacted an official in the township where the fence and corral are located. According to that official, the fence lies along an open east-west section line and intersects the

LETTER OPINION 95-L-104 April 24, 1995 Mr. Rolf P. Sletten Executive Secretary and Treasurer North Dakota State Board of Medical Examiners 418 East Broadway Avenue, #12 Bismarck, ND 58501 Dear Mr. Sletten: Thank you for your letter inquiring whether an individual who is licensed to practice chiropractic, but not licensed to practice medicine, is authorized to perform high school sports physicals in North Dakota. Under North Dakota law, the practice of chiropractic includes: a. The examination, evaluation, and diagnosis, by means including X-ray, other appropriate diagnos

LETTER OPINION 95-L-101 April 24, 1995 Senator David O'Connell Route 1, Box 78 Lansford, ND 58750 Dear Senator O'Connell: Thank you for your letter asking four questions regarding a fence and corral built on a section line in your district. In response to your letter, a member of my staff contacted an official in the township where the fence and corral are located. According to that official, the fence lies along an open east-west section line and intersects the

LETTER OPINION 95-L-97 April 17, 1995 Mr. Michael G. Sturdevant Berthold City Attorney P.O. Box 970 Minot, ND 58702-0970 Dear Mr. Sturdevant: Thank you for your March 3, 1995, letter asking me to reconsider opinions written by my two immediate predecessors in office on home rule city authority to adopt city sales and use taxes. The opinions you refer to are Letter from Attorney General Robert O. Wefald to Jay H. Fiedler (March 7, 1984) and Letter from Attorney Ge

LETTER OPINION 95-L-94 April 17, 1995 Lt. Governor Rosemarie Myrdal State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Lieutenant Governor Myrdal: Thank you for your March 16, 1995, letter concerning the North Dakota Protection and Advocacy Project (P&A). P&A provides advocacy and protective services for persons with development disabilities or mental illnesses. N.D.C.C. ? 25-01.3-06. P&A receives federal funds under the Developmental Disabilities Assistance and Bill of Rights Act Amendments of 1994 and the P

LETTER OPINION 95-L-92 April 17, 1995 Mr. Michael F. Daley P.O. Box 5788 Grand Forks, ND 58206-5788 Dear Mr. Daley: Thank you for your March 10, 1995, letter regarding the number of terms a person may serve on the state Board of Accountancy. You first ask whether N.D.C.C. ? 43-02.2-03(1) prohibits the reappointment of board members to either a consecutive or separate term after they have served two consecutive complete terms, or if it simply prohibits the reappointment of board members to a third

LETTER OPINION 95-L-88 April 3, 1995 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 requesting my opinion concerning the disclosure of records of a medical county coroner which show the cause of death pursuant to N.D.C.C. ? ? 11-19.1-08 and 44-04-18(1) in light of a contrary provision contained in N.D.C.C. ? 23-02.1-27. North Dakota's open records law provides: Except as otherwise

LETTER OPINION 95-L-86 March 29, 1995 Honorable Glenn Pomeroy Commissioner North Dakota Department of Insurance 600 East Boulevard, 5th Floor Bismarck, ND 58505-0320 Dear Commissioner Pomeroy: Thank you for your March 1, 1995, letter asking whether the entity which administers the insurance plans of the Comprehensive Health Association of North Dakota (CHAND) must be an insurance company which is a member of the association. N.D.C.C. ch. 26.1-08 establishes the Comprehensive Health

LETTER OPINION 95-L-83 March 27, 1995 William E. Woods, Jr. City Attorney P.O. Box 159 Parshall, ND 58770 Dear Mr. Woods: Thank you for your letter requesting my opinion regarding whether a city may place restrictions in the advertisement and sale of city-owned real property that would mandate that the purchaser would be subject to pay real estate taxes and that the real estate would need to remain on the tax roles of the city. Local governmental entities have only

LETTER OPINION 95-L-79 March 24, 1995 Honorable Dan Wogsland State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Wogsland: Thank you for your March 20, 1995, letter asking whether North Dakota Century Code (N.D.C.C.) ? 40-13-04 prohibits a city from decreasing the salary, fees, or other compensation of its employees. The statute provides as follows: Except where otherwise provided in this code, any officer or employee of a municipality shall

LETTER OPINION 95-L-76 March 22, 1995 The Honorable Ruth Holm District 21 - State Representative State Capitol 600 East Boulevard Bismarck, ND 58505-0360 Dear Representative Holm: Thank you for your letter requesting an opinion on whether an adult child could be charged with a class C felony by complying with a parent's wishes to remain at home rather than move to a nursing home. Before responding directly to your question, it is necessary to first review the current

LETTER OPINION 95-L-74 March 21, 1995 Mr. Wayne O. Solberg Assistant City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Solberg: Thank you for your February 10, 1995 letter inquiring how long the Fargo Police Department (Department) must retain criminal history record information and when it should be expunged. You advise that the Department receives numerous requests for information by the subjects of the criminal history information and fewer requests by prospective e

LETTER OPINION 95-L-71 March 21, 1995 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your February 16, 1995, letter asking whether a North Dakota public school district board may enter into an agreement with a nonpublic school entity to collect state foundation aid for the combined student enrollment of the public and nonpublic school, and whether a North Dakota public school dis

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-04 Date issued: March 20, 1995 Requested by: Wayne P. Jones, Ransom County State's Attorney - QUESTION PRESENTED - Whether a county may contract with a private company for the private company to provide the services of a director of public health. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county may not contract with a private company for the private company to provide the services of a director

LETTER OPINION 95-L-69 March 15, 1995 Mr. Rolf P. Sletten Executive Secretary North Dakota State Board of Medical Examiners 418 East Broadway Avenue Suite 12 Bismarck, ND 58501 Dear Mr. Sletten: Thank you for your letter requesting an opinion on whether an individual licensed to practice dentistry in the state of North Dakota is authorized to perform blepharoplasties, rhinoplasties, and septoplasties. "Blepharoplasty" is defined as "a plastic operation on an eyelid esp. to remov

LETTER OPINION 95-L-65 March 15, 1995 The Honorable Bill Oban House Minority Leader House of Representatives State Capital 600 East Boulevard Bismarck, ND 58505-0360 Dear Representative Oban: Thank you for your March 9, 1995, letter requesting my opinion on the constitutionality of Senate Bill No. 2355 as amended by the Senate. Engrossed Senate Bill No. 2355 provides that the State Board of Higher Education may sell a parcel of land to BHS Long Term Care, Inc. (BHS). The

LETTER OPINION 95-L-63 March 9, 1995 Charles Wilder Williams County States Attorney P.O. Box 2047 Williston, ND 58802-2047 Dear Mr. Wilder: Thank you for your letter requesting clarification regarding the application of N.D.C.C. ch. 57-40.6. In your letter you explain that Williston has implemented a 911 emergency communications system. You further explain that the Williams County Commission put the issue of whether the people of Williams County wanted a county-wide 911 system

LETTER OPINION 95-L-60 March 9, 1995 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for your letter requesting clarification of the December 13, 1994, Attorney General's opinion addressed to you. You request clarification regarding the meaning of the appearance of impropriety doctrine. In the December 13, 1994, opinion, I concluded: If the court was presented with a case in which a commissioner had a financial

LETTER OPINION 95-L-56 March 9, 1995 Mr. John T. Goff Cass County State's Attorney PO Box 2806 Fargo, ND 58108 Dear Mr. Goff: Thank you for your letter regarding the appointment of Cass County Social Services as guardian for incapacitated persons. You first ask whether a court can order Cass County to provide guardianship services at its own expense for indigent residents, while appointing the public administrator for those individuals who have sufficient resources to pa

LETTER OPINION 95-L-53 March 3, 1995 The Honorable John T. Traynor North Dakota Senate, District 15 State Capitol Bismarck, ND 58505-0360 Dear Senator Traynor: Thank you for your letter regarding the preference provided to wartime veterans under N.D.C.C. ch. 37-19.1 for employment with governmental agencies. Your letter asks whether veterans' preference applies to the position of executive director of a local housing authority. Veterans' preference is not required "when the positi

LETTER OPINION 95-L-48 February 27, 1995 Mr. John T. Goff Cass County State's Attorney P.O. Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your letter asking whether a home rule county ordinance can supersede the membership requirements of state law for a water resource district board and the county planning commission, and whether a home rule county ordinance can supersede special assessment initiation and protest procedures provided by state law. The North Da

LETTER OPINION 95-L-44 February 13, 1995 Mr. Charles Johnson Commission Counsel Public Service Commission State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0480 Dear Mr. Johnson: Thank you for your letter asking whether N.D.C.C. ch. 38-18.1 is self-executing, or whether the surface owner, to take title to the severed mineral estate, must obtain a court judgment? If the terms of N.D.C.C. ch. 38-18.1 are met, title to the minerals passes to the surface owner. The surface owner may want to confirm title in a

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-03 Date issued: February 13, 1995 Requested by: Gary R. Ness, Director, Aeronautics Commission - QUESTIONS PRESENTED - I. Whether a properly filed security agreement upon crops under North Dakota Century Code (N.D.C.C.) ch. 35-05 acts as notice to and a crop lien in favor of the filer relating to payments under federal crop insurance, hail loss insurance coverage or other disaster assistance payments relating to growin

LETTER OPINION 95-L-42 February 10, 1995 Mr. Henry C. "Bud" Wessman Executive Director Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your January 5, 1995, letter asking whether the term "existing debt" in 1993 N.D. Sess. Laws ch. 284 (1993 H.B. No. 1274) means long-term debt related to the cost of fixed assets, or long-term debt and other current liabilities shown on a balance sheet. 1993 N.D. Sess. Laws

LETTER OPINION 95-L-39 February 10, 1995 Honorable William Kretschmar State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Representative Kretschmar: Thank you for your February 1, 1995, letter requesting my opinion regarding the effect of the federal Professional and Amateur Sports Protection Act, 28 U.S.C. ? ? 3701-3704 ("PASPA"), on House Bill No. 1164 and House Bill No. 1212. House Bill No. 1164 would amend and reenact subsection 1 of N.

LETTER OPINION 95-L-35 February 10, 1995 The Honorable Lyle Hanson House of Representatives State Capitol 600 E Boulevard Avenue Bismarck, ND 58505 Dear Representative Hanson: Thank you for your February 3, 1995, letter in which you ask whether House Bill 1260 is constitutional. In my opinion, if enacted, House Bill 1260 would be constitutional. The bill proposes to amend N.D.C.C. ? ? 15-05-10 and 38-09-18. The former statute concerns oil and gas leases issued by the Board

LETTER OPINION 95-L-33 February 10, 1995 Representative David Drovdal North Dakota House of Representatives State Capitol 600 East Boulevard Bismarck, ND 58505-0360 Re: House Bill 1406 Dear Representative Drovdal: Thank you for your letter asking whether House Bill No. 1406, as amended by the House Natural Resources Committee on February 3, would require the Industrial Commission to take into account protests of residents or landowners when deciding whether to issue a permit to

LETTER OPINION 95-L-29 February 10, 1995 Ms. Jeanne L. McLean Behrens Bottineau County State's Attorney 314 West 5th Street Bottineau, ND 58318 Dear Ms. McLean Behrens: Thank you for your letter. You asked 1) what procedure a person should use to protest a drain assessment made under N.D.C.C. ch. 61-16.1 after the person has paid the special assessment to the county treasurer under protest and 2) what the county treasurer should do with the protest money being held

LETTER OPINION 95-L-27 February 7, 1995 Honorable Kit Scherber State Senator Senate Chambers, State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Scherber: Thank you for your letter asking whether subdivision 1 of Minn. Stat. ? 216B.2423 constitutes an unconstitutional restraint of interstate commerce. That section provides: Subdivision 1. Mandate. A public utility . . . that operates a nuclear-powered electric generating plant within this state must construct an

LETTER OPINION 95-L-24 February 6, 1995 Honorable John Dorso State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Dorso: Thank you for your February 1, 1995, letter concerning a proposal from the Legislative Council to Representative Rick Berg outlining a procedure for North Dakota to opt-out or to opt-in to a federal banking system that, depending on legislative will, may require enacting a statute in 1995 with a contingent effe

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-02 Date issued: February 3, 1995 Requested by: Lynn E. Erickson, Cavalier County State's Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners may increase the salary of a part-time county state's attorney, an elected official, at regular intervals, based solely on the length of time served in office. II. Whether a newly elected county state's attorney must be given the same salary as the newly

LETTER OPINION 95-L-20 January 30, 1995 Tim Schuetzle, Warden North Dakota State Penitentiary PO Box 5521 Bismarck, ND 58502 Dear Warden Schuetzle: Thank you for your letter requesting my opinion on what procedures must be taken prior to a penitentiary inmate being forcibly injected with antipsychotic drugs. In 1990 the United States Supreme Court addressed the issue raised in your letter in Washington v. Harper, 494 U.S. 210 (1990). In Harper, a prisoner alleged that th

LETTER OPINION 95-L-18 January 30, 1995 Ms. Patricia L. Burke Burleigh County State's Attorney 514 East Thayer Avenue Bismarck, ND 58501 Dear Ms. Burke: Thank you for your January 10, 1995, letter requesting my opinion on whether a business such as Glamour Shots must be licensed pursuant to N.D.C.C. ch. 43-11. Specifically, you question whether such a business is exempt from licensure pursuant to N.D.C.C. ? 43-11-02(6). Based upon the information contained in your letter

LETTER OPINION 95-L-15 January 26, 1995 Mr. Brian D. Grosinger Assistant State's Attorney 210 Second Avenue NW Mandan, ND 58554 Dear Mr. Grosinger: Thank you for your letter asking whether N.D.C.C. ? 57-22-03 allows a sheriff to collect unpaid delinquent mobile home taxes, or distrain property to pay those taxes, without first obtaining a judgment or execution. If so, you also ask whether this procedure violates due process. See U.S. Const. amend. XIV, ? 1; N.D. Const.

LETTER OPINION 95-L-11 January 26, 1995 Ms. Patricia Burke Burleigh County State's Attorney 514 East Thayer Bismarck, ND 58501 Dear Ms. Burke: Thank your for your letter regarding work-related injuries to persons performing court-ordered community service. N.D.C.C. ? 12.1-32-02(1)(f) authorizes courts to sentence criminal defendants to an "appropriate work detail" or community service instead of a term of imprisonment. It is my understanding that community service is imposed as a

LETTER OPINION 95-L-8 January 25, 1995 Mr. Gerald A. Kuhn Logan County State's Attorney P.O. Drawer 50 Napoleon, ND 58561-0050 Dear Mr. Kuhn: Thank you for your letter inquiring when taxes and special assessments become delinquent for purposes of the register of deeds' refusing to record an instrument under N.D.C.C. ? 11-18-02. N.D.C.C. ? 11-18-02 provides as follows: Except as otherwise provided in section 11-18-03, the register of deeds shall refuse to receive or record a

LETTER OPINION 95-L-4 January 17, 1995 Mr. Henry C. "Bud" Wessman Executive Director ND Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Wessman: Thank you for your letter inquiring about the confidential treatment of records maintained with respect to early childhood services pursuant to North Dakota Century Code (N.D.C.C.) ? 50-11.1-07(3). N.D.C.C. ch. 50-11.1 concerns the licensing and regulation of early childhood services in early childhood f