North Dakota AG Opinions, 2000

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-06 DATE ISSUED : May 5, 2000 ISSUED TO : Tom Irgens, President, Ray Public School District Board CITIZEN’S REQUEST FOR OPINION On March 24, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Dianne Brunner asking whether the Ray Public School Board 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 properly follow the procedural requirements for holding an executive session. FACTS PRESENTED A few days before the

LETTER OPINION 2000-L-62 April 24, 2000 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking whether North Dakota’s institutions of higher education violate Article X, Section 18 of the North Dakota Constitution when they expend funds to pay contractors and a related nonprofit alumni association or foundation obtains unreimbursed benefits from the contract or when no-cost services for office space, utilities, telep

LETTER OPINION 2000-L-57 <PAGE NAME="p.L-57">April 18, 2000 Ms. Kathleen K. Trosen Attorney at Law 120 9th Street West Harvey, ND 58341-1505 Dear Ms. Trosen: Thank you for your letter asking which political subdivision has authority to install culverts in county and township roads. You also asked whether a water resource district has the authority to order the repair of a culvert or the removal of debris from a culvert and if so, how that authority may be enforced and about a water re

LETTER OPINION 2000-L-55 April 18, 2000 Ms. Lisa B. Gibbens Towner County State’s Attorney P.O. Box 708 Cando, ND 58324-0708 Dear Ms. Gibbens: Thank you for your letter asking whether tax proceeds in excess of the amount needed to match federal funds to construct farm-to-market roads may be used for maintenance of roads constructed under a road improvement program approved by voters in 1972. You advise that voters in a special election on November 7, 1972 approved a tax levy to cons

LETTER OPINION 2000-L-54 April 10, 2000 Honorable Ben Tollefson State Representative 500 24th Street NW Minot, ND 58703-1864 Dear Representative Tollefson: Thank you for your letter requesting clarification of the protection afforded by N.D.C.C. § 36-21.1-02(5) to kennel operators for animals abandoned at the kennel. You also asked how the law is enforced. As you noted in your letter, N.D.C.C. § 36-21.1-02 was amended in 1999 to require a person to “reclaim an animal within forty-eight hours of the a

N.D.A.G. Letter to Backman (April 4, 2000) April 4, 2000 Mr. Rod Backman Director Office of Management and Budget 600 East Boulevard Avenue Bismarck, ND 58505-0400 Dear Mr. Backman: Thank you for your memorandum asking whether your office is authorized to enter into an interstate cooperative purchasing agreement with the Western States Contracting Alliance. Public officials and state agencies only have such authority as is expressly given them by the constitution and statutes, together with those powers and duties which are necessarily implied from an express grant of authority. Ame

LETTER OPINION 2000-L-52 April 4, 2000 Mr. John R. Gregg Bottineau County State’s Attorney PO Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your letter inquiring whether a multicounty health district has jurisdiction to abate a nuisance consisting of a house within a city which has not contracted to be part of the local multicounty health district. The laws concerning public health units were substantially modified during the most recent legislative session. 1999 N.D. Sess. Laws c

LETTER OPINION 2000-L-48 April 4, 2000 Mr. Warren R. Emmer Director Division of Field Services PO Box 5521 Bismarck, ND 58506-5521 Dear Mr. Emmer: This letter is in response to your letter dated March 3, 2000, regarding the effect of 2000 N.D. Op. Att’y Gen. L-18 (Feb. 14 to Elaine Little) (referred to as “the February 14 letter opinion”) on various statutory obligations of the Department of Corrections and Rehabilitation (DOCR). Your first question is whether the February 14 letter opinion p

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-05 DATE ISSUED : April 4, 2000 ISSUED TO : Central Cass Public School District Superintendent Larry Gegelman CITIZEN’S REQUEST FOR OPINION On February 22, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Michael Geiermann asking whether the Central Cass Public School District violated N.D.C.C. §§ 44-04-19, 44-04-19.1, and 44-04-19.2 by holding an executive session to discuss contract negotiation strategy which was not authorized by law and by failing to follow the statut

LETTER OPINION 2000-L-46 March 31, 2000 Mr. Richard J. Riha Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501-4413 Dear Mr. Riha: Thank you for your letter asking whether a joint powers agreement may be used to authorize a county to loan money to an organized township to pay for road construction after the township has already entered into a road construction contract and incurred the debt for the construction work which has been completed. You also ask whether a joint powers agreement may be made between a county and an unorganized

LETTER OPINION 2000-L-42 March 31, 2000 Honorable Gary J. Nelson State Senator Chairman, Legislative Council 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Nelson: Thank you for your letter asking for clarification of the opinion I issued last fall to Agriculture Commissioner Roger Johnson regarding the Minor Use Pesticide Fund. N.D.C.C. § 4-35-06.3, as amended in 1999, provides: The minor use pesticide fund is created as a special fund in the state treasury. All moneys in the fund are app

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-04 DATE ISSUED : March 15, 2000 ISSUED TO : Central Cass Public School District Superintendent Larry Gegelman CITIZEN’S REQUEST FOR OPINION On February 4, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Carol Kratcha asking whether the Central Cass Public School District Board 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 executive session. FACTS PRESENTED T

LETTER OPINION 2000-L-39 March 14, 2000 Mr. Doug Mattson Ward County State’s Attorney P.O. Box 5005 Minot, ND 58702-5005 Dear Mr. Mattson: Thank you for your letter regarding duties of a register of deeds pertaining to recording a notice of a contract for deed. You advise that N.D.C.C. § 11-18-02 provides that a register of deeds shall not record certain instruments unless they bear the auditor’s certificate of transfer stating that delinquent and current real estate taxes and special assessments on the

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-10 Date issued: March 14, 2000 Requested by: Kathi Gilmore, State Treasurer - QUESTION PRESENTED - Whether the exception in N.D.C.C. § 5-01-16 permitting limited importation of liquor or beer into North Dakota for personal use applies to an individual who places an order from within the state with an out-of-state supplier. - ATTORNEY GENERAL'S OPINION - It is my opinion that the exception in N.D.C.C. § 5-01-16 permitting limited importation of

LETTER OPINION 2000-L-36 March 10, 2000 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter concerning street improvements in an area of Bismarck included in the National Register of Historic Places and in the State Historic Sites Registry. You advise that the city is again contemplating, as it has for many years, improvements to the intersection of Avenue C and Washington Street. You advise that the city has identified seve

LETTER OPINION 2000-L-32 March 10, 2000 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter asking whether a home rule city is authorized to impose a law enforcement charge on all the licensed gaming operations within its boundaries or to otherwise generate revenue from those operations. The purpose of the proposed fees or additional revenue would be to offset the cost to the city of enforcing the state gaming laws.

LETTER OPINION 2000-L-30 March 9, 2000 Ms. Carol Olson Executive Director North Dakota Department of Human Services State Capitol Bismarck, ND 58505 Dear Ms. Olson: Thank you for your letter asking two questions regarding the North Dakota health care trust fund. Because of the time within which you have requested a response, I will respond to your first question in this letter and will address your second question at a later date. Your first question pertains to N.D.C.C. § 50-24.4-30. Subsection two of thi

LETTER OPINION 2000-L-25 March 1, 2000 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter requesting my opinion on whether a creditor holding a state court judgment against an enrolled member of the Three Affiliated Tribes can garnish the debtor’s wages from an on-reservation employer. “Long ago the Court departed from Mr. Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservati

LETTER OPINION 2000-L-23 February 29, 2000 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue, Dept. 201 Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your memorandum asking whether N.D.C.C. § 15-40.1-04.1(2) authorizes your department to make supplemental foundation aid payments to a school district where a change in law results in a reduction in the taxable value of school district property from one year to the next. N.D.C.C. § 15-40.1-04.1(2) provides, in part: Whenever the foundation aid payment to any school di

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-09 Date issued: February 28, 2000 Requested by: Representative Frank Wald - QUESTIONS PRESENTED - I. Whether the records of the Southwest Multi-County Correction Center (SWMCCC) regarding a deceased juvenile are confidential under N.D.C.C. § 27-20-52 as "law enforcement records . . . of a child alleged or found to be delinquent, unruly, or deprived." II. Whether the phrase "juvenile court" as used in N.D.C.C. § 27-20-51 refers only to the juvenile

LETTER OPINION 2000-L-21 February 22, 2000 The Honorable Carolyn Nelson State Senator - District 21 1125 College St Fargo, ND 58102-3433 Dear Senator Nelson: Thank you for your letter asking me to revisit the question set forth in North Dakota Attorney General’s Opinion 82-1 issued by Attorney General Robert Wefald to K. M. Knutson. In that opinion, Attorney General Wefald concluded that a law enforcement officer may issue a uniform traffic complaint and summons pursuant to N.D.C.C. § 29-05-31 in any case

LETTER OPINION 2000-L-19 February 18, 2000 Rep. Bruce Eckre State Representative 1300 North 7th Street Wahpeton, ND 58075-3625 Dear Representative Eckre: Thank you for your letter asking whether the construction of a building by an area vocational and technology center constitutes “real property” which requires approval of two-thirds of the relevant school boards under N.D.C.C. § 15-20.2-07(5). The building would be an addition to the present construction technology shop located on Wahpeton Public

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-08 Date issued: February 18, 2000 Requested by: Fabian Noack, Foster County State’s Attorney - QUESTIONS PRESENTED - I. Whether a county may use N.D.C.C. § 24-07-03 to close travel on a section line easement on which there is an improved road. II. Whether a governmental entity must bring condemnation proceedings when building a road along a closed section line easement. III. Whether the published notice of a meeting of a county planning commission and board of county comm

LETTER OPINION 2000-L-18 February 14, 2000 Ms. Elaine Little Director Department of Corrections and Rehabilitation PO Box 1898 Bismarck, ND 58502-1898 Dear Ms. Little: Thank you for your letter asking whether the record of the protective custody placement of an inmate is exempt from the state open records law. Under the open records law, the record of the inmate's placement is open to the public "unless otherwise specifically provided by law." N.D.C.C. § 44-04-18. Your letter specifically cites N

LETTER OPINION 2000-L-15 February 2, 2000 Mr. Marshall W. Moore Director Department of Transportation 608 East Boulevard Avenue Bismarck, ND 58505-0700 Dear Mr. Moore: Thank you for your letter asking how to define a “new motor vehicle” for purposes of administration of the motor vehicle dealer licensing law, N.D.C.C. ch. 39-22. Your question is in the context of a motor vehicle dealer obtaining possession of a previously untaxed motor vehicle from a new motor vehicle dealer that has a contract or franchise in effec

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-07 Date issued: February 2, 2000 Requested by: Doug Mattson, Ward County State’s Attorney - QUESTION PRESENTED - Whether state courts have jurisdiction over paternity actions brought by county social service boards where the mother, child, and putative father are all enrolled tribal members. - ATTORNEY GENERAL’S OPINION - State courts may have jurisdiction over paternity actions brought by county social service boards where the mother, child, and putative fath

LETTER OPINION 2000-L-13 February 1, 2000 Honorable Aaron Krauter State Senator HC1, Box 27 Regent, ND 58650-9721 Dear Senator Krauter: Thank you for your letter asking whether a school district may give or sell real property to a nonprofit corporation at less than its fair market value. Your letter indicates that a school district anticipating dissolution is considering options available in disposing of its real property. One suggested option is giving or selling the land and building to a newly for

LETTER OPINION 2000-L-10 January 31, 2000 Mr. Jeffrey L. Sheets Sioux County State’s Attorney PO Box L Fort Yates, ND 58538-0529 Dear Mr. Sheets: Thank you for your letter requesting my opinion on whether a county may appoint the elected clerk of district court to the position of register of deeds without paying that person additional compensation. I understand Sioux County has not adopted an optional form of county governance, and is therefore subject to the provisions of N.D.C.C. ch. 11

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-06 Date issued: January 31, 2000 Requested by: Charlie Whitman, Bismarck City Attorney - QUESTION PRESENTED - Whether a home rule city can modify N.D.C.C. §§ 43-09-13.2 and 43-18-11.4 through ordinance. - ATTORNEY GENERAL'S OPINION - It is my opinion that a home rule city may not adopt qualifications for city plumbing and electrical inspectors through city ordinance which are less restrictive than the qualifications required under N.D.C.C. §§ 43-09

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-03 DATE ISSUED : January 31, 2000 ISSUED TO : Duane Schurman, Attorney, Freemont Township CITIZEN’S REQUEST FOR OPINION On December 22, 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. §§ 44-04-19, 44-04-19.2, and 44-04-20 by excluding him from a meeting of the Board without following the necessary procedures for holding an executive session and by failing to provide

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-02 DATE ISSUED : January 31, 2000 ISSUED TO : Dan Fremling, Chair, and Tom Tupa, Executive Secretary, North Dakota Board of Social Work Examiners CITIZEN’S REQUEST FOR OPINION On December 13, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mark Hendrickson asking whether the North Dakota Board of Social Work Examiners violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by excluding him from a closed meeting of the Board and by meeting in executive session without first voting to do so and wit

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-05 Date issued: January 26, 2000 Requested by: Dennis Edward Johnson, McKenzie County State’s Attorney - QUESTION PRESENTED - Whether federal land in North Dakota can be burdened by public roads established by prescription under state law and by the state’s section line law. - ATTORNEY GENERAL’S OPINION - It is my opinion that federal land in North Dakota can be burdened by public roads established by prescription under state law and by the state’s section line law. - ANALYSIS - Background In 1866 Congress enacted a statute gi

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-01 DATE ISSUED : January 24, 2000 ISSUED TO : Donna Black Cloud, Business Manager, Solen Public School District CITIZEN’S REQUEST FOR OPINION On December 9, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Gabe Plante, President of the Solen School Board, asking whether the Board violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session without sufficient statutory authority and without announcing the Board's reason for the executive sess

N.D.A.G. Letter to Renner (Jan. 20, 2000) January 20, 2000 Mr. Jerry Renner Kidder County State's Attorney PO Box 229 Steele, ND 58482-0229 Dear Mr. Renner: Thank you for your letter regarding the obligation of clerks of district court to respond to requests for court records regarding criminal convictions. As you note in your letter, this office recently issued an opinion to Senator Wayne Stenehjem in which I concluded that clerks of court are not precluded from releasing information regarding criminal convictions. 1999 N.D. Op. Att'y Gen. L-71. This opinion was based on the fact that

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