Legislative Management members were presented with a legal analysis June 26 on an Attorney General opinion that concluded the governor’s written veto message, rather than pen markings on the returned bill, is the legally operative statement of what was vetoed.

The memo and presentation by Legislative Council staff stressed why the issue matters now: the governor crossed out an entire section of Senate Bill 2014 on the bill face but said in his veto letter he intended to disapprove only a $150,000 passthrough; the AG opinion sided with the veto letter. "The AG concluded that the Governor's veto letter was the legally operative document," Legislative Council staff attorney Emily Thompson told the committee.

Thompson said the opinion does not cite the state Supreme Court’s 2018 decision in Legislative Assembly v. Burgum, which held a governor cannot unilaterally withdraw a veto or rely on an AG agreement to change the effect of a veto. She and other staff flagged two practical concerns: (1) longstanding case law treats an item veto as subtracting the vetoed amount from the larger appropriation (for example, striking $150,000 from a $1,000,000 allocation reduces the appropriation to $850,000), and (2) the AG opinion’s restatement of the remaining language could be read to leave the full appropriation intact despite the governor’s stated objection.

Legislative Council staff outlined possible responses: ask the North Dakota Supreme Court to exercise original jurisdiction and seek declaratory relief and injunctive remedies; request a special session or convene briefly to attempt overrides; or enact clarifying statute in the next legislative session requiring specific procedures for returning vetoed items and marking bills. Staff noted court action could stop disbursement if a court-issued injunction were obtained, but litigation can be slower than a reconvened override vote and carries its own uncertainty.

Members discussed the practical timing: agencies plan to disperse the funds on July 1 and the Legislative Council warned that once funds are paid out to third parties and expended the issue becomes harder for courts to remedy. Several lawmakers said the AG opinion, if left unchallenged, would set an undesirable precedent for future governors and could shift lawmaking power in practice to the executive branch.

After discussion, Legislative Management directed Legislative Council to prepare a memorandum with a list of legal and procedural options, including pros, cons, timing, and likely impacts, and to return with recommendations within about a week to 10 days. The committee voted in favor of that request.