North Dakota AG Opinions, 1982

Office of the Attorney General State of North Dakota Opinion No. 82-77 Date Issued: November 19, 1982 Requested by: L. M. Stenehjem, Jr. Commissioner of Banking and Financial Institutions --QUESTION PRESENTED-- Whether public funds of political subdivisions may be invested in repurchase agreements with financial institutions located in North Dakota. --ATTORNEY GENERAL'S OPINION-- It is my opinion that public funds of political subdivisions may not be invested in repurchase agreements with financial institutions located in North Dakota. --ANALYSIS-- The Legislative Assembly has specified th

Office of the Attorney General State of North Dakota Opinion No. 82-76 Date Issued: November 18, 1982 Requested by: John J. Fox Stark County Assistant State's Attorney --QUESTION PRESENTED-- Whether a county is obligated to pay attorney's fees in an action brought by the sheriff against the county judge to obtain an alternative writ of prohibition to stay contempt proceedings brought against the sheriff by the county judge in the county court of increased jurisdiction. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a county is not obligated to pay attorney's fees in an action brought

Office of the Attorney General State of North Dakota Opinion No. 82-75 Date Issued: November 18, 1982 Requested by: Darrell R. Ohlhauser Acting Director Office of Management and Budget --QUESTION PRESENTED-- Whether Section 57-51.1-07(1) of the North Dakota Century Code enacted as an initiated measure and amended by the Forty-seventh Legislative Assembly requires future legislative assemblies to appropriate moneys sufficient to fund per pupil costs at 70% of the educational cost per pupil in public elementary and secondary education as determined under the provision

Office of the Attorney General State of North Dakota Opinion No. 82-74 Date Issued: November 12, 1982 Requested by: John M. Olson Burleigh County State's Attorney --QUESTION PRESENTED-- Whether a foster family home, licensed under Chapter 50-11 of the North Dakota Century Code, may accept placements from agencies other than the county social service board in the county in which the home is located. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a foster family home, licensed under Chapter 50-11, N.D.C.C., may accept placements from agencies other than the county social service board

Office of the Attorney General State of North Dakota Opinion No. 82-73 Date Issued: October 21, 1982 Requested by: John A. Richardson Commissioner of Higher Education --QUESTION PRESENTED-- Whether Section 39-01-09 of the North Dakota Century Code prohibits an institution of higher education from installing parking meters on a publicly owned parking lot located on campus. --ATTORNEY GENERAL'S OPINION-- It is my opinion that Section 39-01-09, N.D.C.C., does not prohibit an institution of higher education from installing parking meters on a publicly owned parking lot lo

Office of the Attorney General State of North Dakota Opinion No. 82-72 Date Issued: October 18, 1982 Requested by: Stark County State's Attorney Owen Mehrer --QUESTION PRESENTED-- Whether the method for the cancellation of mechanic's liens set forth in Section 35-27-25 of the North Dakota Century Code applies to those mechanic's liens filed prior to July 1, 1981. --ATTORNEY GENERAL'S OPINION-- It is my opinion that the method for the cancellation of mechanic's liens set forth in Section 35-27-25, N.D.C.C., does not apply to those mechanic's liens filed prior to July 1, 1981. --ANALYSIS--

Office of the Attorney General State of North Dakota Opinion No. 82-71 Date Issued: October 15, 1982 Requested by: Bruce E. Bohlman Attorney for the City of Grand Forks Park District --QUESTION PRESENTED-- Whether Section 40-24-10 of the North Dakota Century Code prohibits a city park district from levying one hundred percent of the cost of a special assessment against land within the park district is to be benefited by the improvement. --ATTORNEY GENERAL'S OPINION-- It is my opinion that Section 40-24-10, N.D.C.C., does not prohibit a city park district from levying one hundred percen

Office of the Attorney General State of North Dakota Opinion No. 82-70 Date Issued: October 15, 1982 Requested by: Margy Bonner City of Williston Assistant City Attorney --QUESTION PRESENTED-- Whether a motor vehicle accident occurring on private property must be reported to the highway commissioner. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a motor vehicle accident occurring on private property must be reported to the highway commissioner to the extent required by law. --ANALYSIS-- Section 39-08-09 of the North Dakota Century Code provides in relevant part as follows: The drive

Office of the Attorney General State of North Dakota Opinion No. 82-69 Date Issued: October 15, 1982 Requested by: Jeffrey J. Peterson Burke County State's Attorney --QUESTION PRESENTED-- Whether a county is entitled to payments made for the right to conduct seismograph operations on county rights-of-way acquired for highway purposes. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a county is entitled to all payments made for the right to conduct seismograph operations on county rights-of-way. --ANALYSIS-- Section 24-01-32 of the North Dakota Century Code provides that all property a

Office of the Attorney General State of North Dakota Opinion No. 82-68 Date Issued: September 28, 1982 Requested by: Robert W. Peterson State Auditor --QUESTION PRESENTED-- Whether a vacant lot located in a zoned residential area of a city must be assessed as commercial property for ad valorem taxation purposes. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a vacant lot located in a zoned residential area of a city must be assessed as commercial property for ad valorem taxation purposes. --ANALYSIS-- Section 57-02-27 of the North Dakota Century Code classifies real property for ad v

MEMORANDUM TO: Orville W. “Ike” Hagen FROM: Robert O. Wefald SUBJECT: Relationship of the Attorney General’s Office to the Department of Labor with respect to wage claim assignments referred for legal action DATE: September 20, 1982 This memorandum is intended to help clarify the relationship of the Attorney General’s office to the Department of Labor with respect to wage claim assignments referred to this office for legal action. Section 34-14-08, N.D.C.C., grants the Commissioner of Labor the discretionary authority to accept assignments of employees’ wage claims. Since Chap

MEMORANDUM TO: Orville W. “Ike” Hagen FROM: Robert O. Wefald SUBJECT: Relationship of the Attorney General’s Office to the Department of Labor with respect to wage claim assignments referred for legal action DATE: September 20, 1982 This memorandum is intended to help clarify the relationship of the Attorney General’s office to the Department of Labor with respect to wage claim assignments referred to this office for legal action. Section 34-14-08, N.D.C.C., grants the Commissioner of Labor the discretionary authority to accept assignments of employees’ wage claims. Since Chap

Office of the Attorney General State of North Dakota Opinion No. 82-67 Date Issued: September 13, 1982 Requested by: Robert W. Martinson State Representative --QUESTION PRESENTED-- Whether a home rule city ordinance which establishes liquor licensing fees supersedes state law regarding the limitation placed on liquor licensing fees. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a home rule city ordinance which establishes liquor licensing fees supersedes state law regarding the limitation placed on liquor licensing fees. --ANALYSIS-- The North Dakota Supreme Cour

Office of the Attorney General State of North Dakota Opinion No. 82-66 Date Issued: August 31, 1982 Requested by: Wes Argue Pembina City Attorney --QUESTION PRESENTED-- Whether a city has the authority to enact an ordinance providing for the impoundment of an unregistered motor vehicle which has been operated upon the city streets or city-owned property. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a city does not have the authority to impound an unregistered motor vehicle which has been operated upon the city streets or city-owned property. --ANALYSIS-- Mun

Office of the Attorney General State of North Dakota Opinion No. 82-65 Date Issued: August 20, 1982 Requested by: R. E. Lommen State Land Commissioner --QUESTION PRESENTED-- Whether oil and gas bonus payments from the leasing of common school trust lands received prior to the passage of Measure No. 3, but that have not yet been distributed to the school districts, should be deposited in the permanent school trust fund or distributed to the school districts. --ATTORNEY GENERAL'S OPINION-- It is my opinion that fifty percent of the oil and gas bonus payments received prior to the passage of

Office of the Attorney General State of North Dakota Opinion No. 82-64 Date Issued: August 20, 1982 Requested by: Dale Moug Director of Human Services --QUESTION PRESENTED-- Whether a county social service board can charge a fee for the investigation and inspection required by Section 50-11.1-04 of the North Dakota Century Code, when the license applied for is not required by the applicant to conduct a family child care home as defined in Section 50-11.1-02(5), N.D.C.C. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a county social service board may not charge a fee for the investi

Overruled in part by Sauby v. City of Fargo, 747 NW2d 65 (N.D. 2008) Office of the Attorney General State of North Dakota Opinion No. 82-62 Date Issued: August 19, 1982 Requested by: Richard W. Olson Larimore City Attorney --QUESTIONS PRESENTED-- I. Whether a non-home rule city may establish a fee for violations of speed limit ordinances where the fee exceeds the amount set forth in Section 39-06.1-06 of the North Dakota Century Code. II. Whether a home rule city may establish a fee for violations of speed limit ordinances where the fee exceeds the amount set forth in

Office of the Attorney General State of North Dakota Opinion No. 82-61 Date Issued: August 13, 1982 Requested by: Ronald G. Splitt LaMoure County State's Attorney --QUESTION PRESENTED-- Whether a board of county commissioners may levy a tax in support of the operation and maintenance of a regional human service center in 1982. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a board of county commissioners may levy a tax in support of a regional human service center in 1982. --ANALYSIS-- Section 25-12-02 of the North Dakota Century Code provides for the levy of a tax not in excess of t

Office of the Attorney General State of North Dakota Opinion No. 82-60 Date Issued: August 12, 1982 Requested by: Hal Christensen State Senator --QUESTION PRESENTED-- Whether an incorrect statement of the number of signatures on the circulator's affidavit on an initiative petition invalidates the petition or any of its signatures. --ATTORNEY GENERAL'S OPINION-- It is my opinion that an incorrect statement of the number of signatures on the circulator's affidavit on an initiative petition does not invalidate the petition or any of its signatures. --ANALYSIS-- Article III, Section 3 of the C

Office of the Attorney General State of North Dakota Opinion No. 82-59 Date Issued: August 12, 1982 Requested by: Ben Meier Secretary of State --QUESTION PRESENTED-- I. Whether a corporation my register its corporation name as a trade name with the Secretary of State. II. Whether the Secretary of State may refuse to register a trade named where the trade name is the same as, or deceptively similar to, an existing corporate name. --ATTORNEY GENERAL'S OPINION-- I. It is my opinion that a corporation may register its corporate name as a trade name with the Secretary of State. II. It is my fur

Office of the Attorney General State of North Dakota Opinion No. 82-58 Date Issued: August 2, 1982 Requested by: Charles D. Orvik Pierce County State's Attorney --QUESTIONS PRESENTED-- I. Whether, upon the death of a joint tenancy owner of real estate, a death certificate can be recorded by a registrar of deeds if no certified copy of an order of a county court or a statement of the state tax commissioner relating to the estate tax determination of the decedent's estate has been recorded. II. Whether, upon the death of a joint tenancy owner of real estate, the recording of a certified copy

Date Issued: July 6, 1982 (AGO 82-57) Requested by: A. S. Benson Bottineau County State's Attorney - QUESTIONS PRESENTED - I. Whether a county may use general fund moneys to construct a county shop, estimated to cost in excess of $100,000.00, without a vote of the people. II. Whether a county may use general fund moneys to construct a county shop, estimated to cost in excess of $100,000.00, without an architect. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that a county may use general fund moneys to construct a shop, estimated to cost in excess of $100,000.00, without a vote of th

Date Issued: July 6, 1982 (AGO 82-56) Requested by: Robert W. Peterson, State Auditor - QUESTION PRESENTED - Whether the State Auditor has the authority to require counties to change their accounting and budgeting fiscal year to coincide with the calendar year. - ATTORNEY GENERAL'S OPINION - It is my opinion that the State Auditor has the authority to require counties to change their accounting and budgeting fiscal year to coincide with the calendar year. - ANALYSIS - Section 54-10-17 of the North Dakota Century Code reads in part: The state auditor shall prepare and furnish for the use an

Date Issued: July 2, 1982 (AGO 82-55) Requested by: Kent Conrad, State Tax Commissioner - QUESTIONS PRESENTED - I. Whether a retail sales tax must be paid on that part of the refined gas consumed in the operation of the refinery if the gas is owned by the refiner from extraction from the earth through the completion of the refining process. II. Whether a retail sales tax must be paid on that part of the refined gas consumed in the operation of the refinery if the raw gas is purchased from another person who extracts it from the earth for processing by the refiner. III. Whether a retail s

Superseded by 94-F-26 Date Issued: July 2, 1982 (AGO 82-54) Requested by: Richard A. Elkin, President Public Service Commission - QUESTIONS PRESENTED - I. Whether chapter 16.1-10 of the North Dakota Century Code applies to an elected public official who is a candidate for office and who offers to return or returns all or any part of the salary for the office held. II. Whether any law applies to an elected public official who is not a candidate for office and who offers to return or returns all or any party of the salary for the office held. - ATTORNEY GENERAL'S OPINION - I. It is my opi

Date Issued: June 29, 1982 (AGO 82-53) Requested by: Robert W. Holte, Mountrail County State's Attorney - QUESTION PRESENTED - Whether a county may require a transient merchant to obtains county license and surety bond when a transient merchant's license has been obtained from the office of the Attorney General. - ATTORNEY GENERAL'S OPINION - It is my opinion that if a transient merchant's license is obtained from the Attorney General, a county is precluded from also requiring that transient merchant to obtain a county license and surety bond for the transaction of such business. - ANALYSI

Overruled by N.D.A.G. 96-L-219 Date Issued: June 28, 1982 (AGO 82-52) Requested by: Bruce E. Kretschmar, McIntosh County State's Attorney - QUESTION PRESENTED - Whether a board of county commissioners, pursuant to section 57-15-06.3(2) of the North Dakota Century Code may increase the mill levy for a county road program without holding an election on the proposed mill levy increase. - ATTORNEY GENERAL'S OPINION - It is my opinion that a board of county commissioners, pursuant to section 57-15-06.3(2), N.D.C.C., may not increase the mill levy for a county road without holding an election

Date Issued: June 28, 1982 (AGO 82-51) Requested by: Tom P. Slorby, Ward County State's Attorney - QUESTION PRESENTED - Whether a county social service board may properly designate poor relief funds for eligibility determination by a private, no nprofit organization which operates a spouse abuse program. - ATTORNEY GENERAL'S OPINION - It is my opinion that, in certain circumstances, a county social service board may properly designate poor relief funds for eligibility determination by a private, nonprofit organization which operates a spouse abuse program. - ANALYSIS - Chapter 14-07.2 of

Date Issued: June 28, 1982 (AGO 82-50) Requested by: A. S. Benson, Bottineau County State's Attorney - QUESTIONS PRESENTED - I. Whether roads dedicated to the public by a plat of a rural subdivision become the responsibility of a township for purposes of road maintenance. II. Whether the county or township has the authority to grant an easement for the construction of a sewer facility on the rights-of-way of the roads dedicated to the public by a plat of a rural subdivision. III. Whether the county and township are responsible for the maintenance of their respec

Date Issued: June 24, 1982 (AGO 82-49) Requested by: Richard A. Elkin, President and Bruce Hagen, Commissioner, Public Service Commission - QUESTION PRESENTED - Whether the Director of the Budget may withhold payment of a portion of the unvouchered expenses set by law for any elected state official unless that elected state official directs otherwise in a written statement signed by him. - ATTORNEY GENERAL'S OPINION - It is my opinion that the Director of the Budget may not withhold a portion of the unvouchered expenses set by law for any elected state official unless that elected state

Date Issued: June 22, 1982 (AGO 82-48) Requested by: Robert W. Holte, Mountrail County State's Attorney - QUESTION PRESENTED - Whether an owner of record of a severed mineral interest is entitled to notice of the expiration of period of redemption for surface real estate sold to the county for taxes when the mineral interest was severed prior to the year for which the tax deed proceedings were taken. - ATTORNEY GENERAL'S OPINION - It is my opinion that an owner of record of a severed mineral interest is not entitled to notice of the expiration of the period of redemption for surface real e

Date Issued: June 22, 1982 (AGO 82-47) Requested by: Roger D. Schell, City Attorney Bottineau, North Dakota - QUESTION PRESENTED - Whether a city that has been making an annual tax levy pursuant to section 57-15-56 of the North Dakota Century Code for programs and activities for senior citizens may continue to make the levy if the county in which the city is located begins making a tax levy pursuant to that section for programs and activities of senior citizens. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city that has been making an annual tax levy pursuant to section 57- 1

Date Issued: June 15, 1982 (AGO 82-46) Requested by: Duane R. Liffrig, Commissioner State Highway Department - QUESTION PRESENTED - Whether the memoranda of working rules and regulations between the American Federation of State, County and Municipal Employees Council 95 (AFSCME) and a former commissioner of the State Highway Department are agreements which contractually bind the commissioner of the State Highway Department to their provisions. - ATTORNEY GENERAL'S OPINION - It is my opinion that the memoranda of working rules and regulations between the American Fed

Date Issued: June 15, 1982 (AGO 82-45) Requested by: Ben Meier, Secretary of State - QUESTION PRESENTED - Whether the chairman of a board of county commissioners who is disqualified from acting as a member of the canvassing board may appoint as his alternate a disinterested elector of the county. - ATTORNEY GENERAL'S OPINION - It is my opinion that the chairman of a board of county commissioners who is disqualified from acting as a member of the canvassing board may appoint as his alternate a disinterested elector of the county. - ANALYSIS - Section 16.1-15-15 of the North Dakota Century C

Date Issued: June 14, 1982 (AGO 82-44) Requested by: State Senator Bryce Streibel - QUESTION PRESENTED - Whether the waiver of tuition and fees of dependents of certain veterans provided for in section 15-10-18.3 of the North Dakota Century Code includes flying "fees" charged by the Aviation Department at the University of North Dakota. - ATTORNEY GENERAL'S OPINION - It is my opinion that the waiver of tuition and fees for dependents of certain veterans provided for in section 15-10-18.3, N.D.C.C., does not include flying "fees" charged by the Aviation Department at the University of North

Date Issued: June 9, 1982 (AGO 82-43) Requested by: Richard W. Olson, City Attorney for the City of Larimore - QUESTION PRESENTED - Whether a city or a newly created street improvement association may sponsor games of chance with the net proceeds being used to assist in the funding of street improvements for such city. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city or a newly created street improvement association may not sponsor games of chance with the net proceeds being used to assist in the funding of street improvements for such city. - ANALYSIS - In order to lawfully con

Date Issued: June 4, 1982 (AGO 82-42) Requested by: North Dakota Industrial Commission - QUESTIONS PRESENTED - I. Whether the Industrial Commission may expend more than the amount appropriated by the Legislative Assembly from the administrative fees received by the Commission from the Department of Housing and Urban Development, a federal agency, in connection with the Housing Assistance Program (HAP) in order to administer the Housing Finance Agency. II. Whether the Industrial Commission acting in its capacity as the Housing Finance Agency may use HAP administrative fees for the admin

Date Issued: May 17, 1982 (AGO 82-41) Requested by: Representative Francis J. Wald - QUESTION PRESENTED - Whether "fun casinos" are legal if operated by giving free chips every hour on request to patrons and additional chips to patrons with each purchase, the chips being used to play bingo, tip jars, raffles or other prize games. - ATTORNEY GENERAL'S OPINION - It is my opinion that the "fun casinos" are legal only if no consideration is given by any of the patrons to participate in any of the games. - ANALYSIS - The terms "gambling" and "lottery" are defined in section12.1-28-01(1), (2) of

" May 14, 1982 21, 1982, regarding whether ° rve asa menber of the city's 7 :Liand'3 of section 40= - thority reseite ‘oonpanaation > a é e: ho’ nsation ’ jection: 2-06-06, N.D.c.C ee whethe> the municipal tee ares ee rt authority | 1 Se 4 . 4 Pasha eae TS aa so, : . { 0sC,C.,' provides: for the creation of a munj- H ‘ty, Section i+06-02, N.D.c.c., states th : 2 to be shall be appoint— i first commissioners (mphasis supplied, ).

Date Issued: May 14, 1982 (AGO 82-40) Requested by: Vincent A. LaQua, State's Attorney for Wells County - QUESTION PRESENTED - Whether it is necessary for a county with a population of more than six thousand but less than fifteen thousand to elect a clerk of district court. - ATTORNEY GENERAL'S OPINION - It is my opinion that it is necessary for a county of a population of more than six thousand and less than fifteen thousand to elect a clerk of district court. - ANALYSIS - Section 8 of Article VII of the North Dakota Constitution states: There shall be elected in each county, organized

Superseded by N.D.A.G. 86-20 Date Issued: May 14, 1982 (AGO 82-39) (AMENDED OPINION) Requested by: Ben Meier, Secretary of State - QUESTION PRESENTED - Whether a candidate for judge of a county court in those counties which have agreed to share the services of a county judge must satisfy the residency requirement in one of the counties to the agreement. - ATTORNEY GENERAL'S OPINION - It is my opinion that a candidate for judge of a county court in those counties which have agreed to share the services of a county judge must satisfy the residency requirement in one of the counties to the

Date Issued: May 5, 1982 (AGO 82-38) Requested by: Jay V. Brovold, Billings County State's Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners has the power to refuse promotions and accompanying salary raises in a sheriff's department once those positions and salaries have been provided for in a departmental budget approved by the board of county commissioners. II. Whether a sheriff has the authority to hire or discharge a deputy, for just cause, without the approval of the board of county commissioners. III. Whether there is any formal procedure to be followed by

Date Issued: May 4, 1982 (AGO 82-37) Requested by: Richard L. Schnell, Morton County State's Attorney - QUESTIONS PRESENTED - I. Whether a tract of land which was platted and assessed as nonagricultural property prior to March 30, 1981, for the purpose of ad valorem taxation should be classified as agricultural land for that purpose after March 30, 1981. II. Whether zoning a tract of land for nonagricultural purposes changes the classification of that tract of land for the purpose of ad valorem taxation if the use of that tract continues to be an agricultural use. III. Whether the making

Date Issued: May 3, 1982 (AGO 82-36) Requested by: Richard L. Schnell Morton County State's Attorney - QUESTION PRESENTED - Whether that county judge candidate who receives a majority of the total combined votes in those counties which have entered into a multicounty agreement to share the services of one or more county judges is the elected county judge for such counties. - ATTORNEY GENERAL'S OPINION - It is my opinion that the county judge candidate who receives a majority of the total combined votes in those counties which have entered into a multicounty agreement to share the service

Date Issued: April 30, 1982 (AGO 82-35) Requested by: James T. Odegard, Grand Forks County States Attorney - QUESTIONS PRESENTED - I. Whether deputies or special officers are acting in the course and scope of their employment with the county when policing public dances, music festivals, or concerts pursuant to section 53-02-08 of the North Dakota Century Code. II. Whether deputies or special officers are acting in the course and scope of their employment with the county when they are paid directly by the person conducting such dance, fe

Date Issued: April 30, 1982 (AGO 82-34) Requested by: Carol S. Nelson, Oriska City Attorney - QUESTION PRESENTED - Whether a person who owns real estate in a city against which there are unpaid, delinquent real estate taxes is eligible to hold a city office. - ATTORNEY GENERAL'S OPINION - It is my opinion that an individual who owns real estate in a city against which there are unpaid, delinquent real estate taxes is not ineligible to hold a city office. - ANALYSIS - Section 40-13-01 of the North Dakota Century Code, provides as follows: 40-13-01. QUALIFICATIONS OF ELECTIVE AND APPOI

Date Issued: April 22, 1982 (AGO 82-33) Requested by: Tom P. Slorby, Ward County State's Attorney - QUESTIONS PRESENTED - I. Whether section 11-17-04(14) of the North Dakota Century Code requires a clerk of district court to charge a fee for certifying the record to the district court of another county pursuant to an order for a change of venue. II. Whether the party requesting a change of venue is responsible for payment of the fees required by section 11-17-04(1) and (14), N.D.C.C. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that section 11-17-04(14), N.D.C.C., requires a clerk