North Dakota AG Opinions, 1999

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-05 Date issued: April 7, 1999 Requested by: Allen Koppy, Morton County State’s Attorney - QUESTION PRESENTED – Whether a public road easement obtained by prescription is extinguished by the governing body’s acquisition of an express road easement. - ATTORNEY GENERAL’S OPINION – As a general rule, a public road easement obtained by prescription is not extinguished by the governing body’s acquisition of an express road easement. - ANALYSIS - N.D.C.C. ch. 24-07,

N.D.A.G. Letter to Welte (April 5, 1999) April 5, 1999 Mr. Peter D. Welte Steele County State's Attorney 218 South 3rd Street Grand Forks, ND 58201-4732 Dear Mr. Welte: Thank you for your request for my assistance in resolving a question you have regarding the appropriateness of a part-time state's attorney representing criminal defendants in a different county. You specifically ask whether this office's opinion on that issue corresponds with an ethics committee opinion you included with your request letter which indicates there is no ethical viol

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-02 DATE ISSUED : April 5, 1999 ISSUED TO : Steve Spilde, North Dakota Insurance Reserve Fund CITIZEN’S REQUEST FOR OPINION On December 1, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mr. Raymond Dohman asking whether the North Dakota Insurance Reserve Fund violated N.D.C.C. § 44-04-18 by denying him access to some of its records. FACTS PRESENTED On May 17, 1993, a legal action was filed in the United States District Court in Fargo, North Dakota, against two Grand Forks County deputy

LETTER OPINION 99-L-30 April 5, 1999 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter asking for clarification of my November 23, 1998, opinion to State Radio Communications Director Lyle Gallagher regarding information provided to a public service answering point. My earlier opinion interpreted N.D.C.C. § 57-40.6-07, which provides: Names, addresses, and telephone numbers provided to a 911 public service answering point under section 57-40.6-06 are

LETTER OPINION 99-L-28 March 30, 1999 Mr. Fabian E. Noack Carrington City Attorney PO Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter of January 29, 1999, asking whether a city may charge “user fees” for police and fire protection and other general services to certain charitable organizations owning property that is exempt from ad valorem taxes. Your letter is written in reference to Engrossed House Bill 1051 which was recently declared lost in the House of Re

N.D.A.G. Letter to Priebe (March 29, 1999) March 29, 1999 Mr. Tim Priebe Dickinson City Attorney P0 Box 1097 Dickinson, ND 58602-1097 Dear Mr. Priebe: Thank you for your February 18, 1999, letter relating to teen functions in licensed liquor establishments. I have again had a chance to review the June 25, 1991, letter from Attorney General Nicholas J. Spaeth to Bismarck City Attorney Charles C. Whitman. I have many of the same concerns that Attorney General Spaeth mentioned in his June 25, 1991, letter. However, as was evident in that letter, I, along with the previous Attorney General

N.D.A.G. Letter to Gregg (March 29, 1999) March 29, 1999 Mr. John R. Gregg Bottineau County State’s Attorney PO Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your letter asking whether a county state's attorney has the duty to either initiate or maintain an action by a county to acquire real property by right of eminent domain. "The state's attorney . . . shall . . . [a]ct as legal adviser of the board of county commissioners . . . . " North Dakota Century Code (N.D.C.C.) § 11-16-01(12). The issue is whether prosecuting an eminent domain action falls within the duty to

LETTER OPINION 99-L-26 March 29, 1999 Ms. Robin Thompson Gordon McHenry County State’s Attorney P.O. Box 329 Towner, ND 58788-0329 Dear Ms. Thompson Gordon: Thank you for your request that I provide my opinion regarding several property tax issues. You specifically ask whose responsibility it is, the county’s or the landowner’s, to discover and seek correction of errors in defining property boundaries for property tax purposes. You further ask whether a county may provide an abatement beyond the

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-04 Date issued: March 24, 1999 Requested by: Representative Merle Boucher - QUESTION PRESENTED - Whether the Agricultural Products Utilization Commission established by North Dakota Century Code ch. 4-14.1 may make grants to assist in litigation concerning international trade disputes. - ATTORNEY GENERAL'S OPINION - It is my opinion that the Agriculture Products Utilization Commission does not have authority under N.D.C.C. ch. 4-14.1 to provide grants to assist in

N.D.A.G. Letter to Chapman (March 3, 199) March 3, 1999 Kevin J. Chapman McKennett Stenehjem Law Offices PO Box 1366 Williston, ND 58802-1366 Dear Mr. Chapman: Thank you for your February 2, 1999, letter asking about a possible conflict of interest of a Watford City council member. The city council member is an employee of McKenzie Electric Cooperative. You state that Montana Dakota Utilities is currently providing electricity to the residents of Watford City pursuant to a franchise that is due to expire in 2001. McKenzie Electric would like to provide electricity to the residents of Wa

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-03 Date issued: February 26, 1999 Requested by: Senator Rich Wardner - QUESTIONS PRESENTED - I. Whether an insurance agent acting concurrently as an insurance consultant and agent may collect both a fee for the consulting services rendered to a client and a commission for any insurance product sold to that same client. II. Whether an insurance agent acting as an insurance consultant for a client in one line of insurance may collect a fee for

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-01 DATE ISSUED : February 22, 1999 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On December 21, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jerry Youngberg asking whether Grand Forks Homes, Inc., violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session on topics which were not authorized by law to be discussed in an executive session and without complying with required statutory procedures. FACTS PRESENTED The board of dire

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-02 Date issued: February 19, 1999 Requested by: Representative George Keiser - QUESTIONS PRESENTED - I. Whether the State Credit Union Board is required by statute or rule to allow a continuing credit union to acquire the field of membership of a merged credit union. II. Whether the limitations of N.D.C.C. § 6-06-07 apply to a continuing credit union’s assumption of the field of membership of a merged credit union. III. Whether the field of members

N.D.A.G. Letter to Lueder (Feb. 16, 1999) February 16, 1999 Mr. James D. Lueder Assistant Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Lueder: Thank you for your letter inquiring about the legality of your proposed process to impose an NCIC personnel security policy. Your proposal requires criminal history record and fingerprint checks on all law enforcement NCIC terminal operators, programmers, or others having access to or ability to initiate transmission of NCIC information. You attach a proposed letter to law enforcement agencies, a release form,

N.D.A.G. Letter to Lueder (Feb. 16, 1999) February 16, 1999 Mr. James D. Lueder Assistant Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Lueder: Thank you for your letter inquiring about the legality of your proposed process to impose an NCIC personnel security policy. Your proposal requires criminal history record and fingerprint checks on all law enforcement NCIC terminal operators, programmers, or others having access to or ability to initiate transmission of NCIC information. You attach a proposed letter to law enforcement agencies, a release form,

LETTER OPINION 99-L-19 February 9, 1999 Mr. Jeff Rotering Slope County State’s Attorney PO Box 1379 Hettinger, ND 58639-1379 Dear Mr. Rotering: On December 14, 1998, your predecessor as Slope County State’s Attorney, Bruce Selinger, requested an Attorney General’s opinion relating to the Slope County Weather Modification Authority. The opinion is being issued to you as Mr. Selinger’s replacement as Slope County State’s Attorney. The Slope County Weather Modification Authority was originally created by peti

LETTER OPINION 99-L-15 January 25, 1999 Mr. Walter M. Lipp Sheridan County State’s Attorney PO Box 456 McClusky, ND 58463-0456 Dear Mr. Lipp: Thank you for your letter asking me to interpret N.D.C.C. § 20.1-01-21, which states: No person may hunt or pursue game upon the premises of another, within four hundred forty yards [402.34 meters] of any occupied building, without consent of the person occupying such building. The statute expressly prohibits hunting within 440 yards of an occupied building, with

LETTER OPINION 99-L-13 January 20, 1999 Honorable Rod Froelich 600 E. Boulevard Ave. Bismarck, ND 58505 Dear Representative Froelich: Thank you for your December 10, 1998, letter asking whether county legal notices may be published in an adjoining out of state county pursuant to North Dakota Century Code (N.D.C.C.) § 46-05-01. N.D.C.C. § 46-05-01 establishes the qualifications of any newspaper in North Dakota to publish any official legal notice. The section also provides that in a county in which

LETTER OPINION 99-L-11 January 19, 1999 The Honorable Steve W. Tomac State Senator 2498 59th St St. Anthony, ND 58566-9640 Dear Senator Tomac: Thank you for your letter asking whether massage provided by clubs other than YMCA clubs is exempt from regulation by the State Board of Massage under N.D.C.C. § 43-25-04. Subsection 4 of N.D.C.C. § 43-25-04 provides that "schools and YMCA clubs who furnish therapy and massage services to their players and members" are exempt from regulation under chapter 43-25. Your letter i

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-01 Date issued: January 6, 1999 Requested by: Senator Tim Mathern - QUESTION PRESENTED - Whether North Dakota law prohibits the withholding or withdrawal of artificial nutrition or hydration except as provided in N.D.C.C. § 23-06.4-06.1. - ATTORNEY GENERAL’S OPINION - It is my opinion that under North Dakota law a competent adult may refuse medical treatment, including artificial nutrition or hydration; that the person authorized by law to provide in

LETTER OPINION 99-L-8 January 5, 1999 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter questioning the authority of a state university to accept annual and sick leave balances for two recent hires which were accumulated while those individuals were employed by a private nonprofit corporation. 1 The nonprofit corporation in this instance is not a part of state government and its employees are not state employees. 2

LETTER OPINION 99-L-4 January 5, 1999 Carol K. Olson Executive Director ND Department of Human Services 600 East Boulevard Avenue Dept 325 Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter asking whether Department of Human Services (Department) rules basing staffing requirements for child care on the developmental age of children with disabilities violates the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 and 47 U.S.C. §§ 225 and 611. You also ask whether a child

LETTER OPINION 99-L-1 January 4, 1999 Mr. Lynn E. Erickson Cavalier County State's Attorney 901 3rd Street Langdon, ND 58249 Dear Mr. Erickson: Thank you for your letter requesting my opinion on whether the Cavalier County Board of County Commissioners has the power to require the Cavalier County State's Attorney to maintain the state's attorney's office in the county courthouse. A county possesses only those powers expressly granted to it by the Legislature or those necessarily implied from the powe