Can North Dakota's Ethics Commission grant officials legal immunity through advisory opinions, and can its rules override state statutes passed by the Legislature?
Plain-English summary
Secretary of State Michael Howe asked AG Drew Wrigley whether the North Dakota Ethics Commission's Advisory Opinion 25-01 (AO 25-01) was a valid exercise of the Commission's authority, and whether the Secretary had to follow Commission rules that conflict with statutes the Legislature has enacted. AO 25-01 had told public officials and candidates that, "in some instances," they could use campaign funds to pay for caregiving expenses and certain security expenses, and that good-faith reliance on the opinion would shield them from criminal and civil penalties. Wrigley's answer is direct: AO 25-01 is void, and the immunity it tried to grant does not attach.
Two ideas drive the opinion. First, the statute that authorizes the Commission to issue advisory opinions, N.D.C.C. § 54-66-04.2, allows opinions only on "specified hypothetical facts or prospective conduct." AO 25-01 did the opposite. It used vague terms like "campaign activity" and "officeholder activity," sketched a few illustrative scenarios that did not bind its conclusions, and announced a generally applicable rule. Because the opinion did not stay within the bounds the Legislature drew, it falls outside the Commission's authority, and the statutory immunity in subsection (4) only attaches to opinions issued "under this section."
Second, the Commission cannot make law. The Constitution of North Dakota allocates lawmaking to the Legislative Assembly through bicameralism and presentment, and Article XIV did not displace that allocation when it created the Commission. So when a Commission rule cannot be reconciled with a statute, the statute controls. Public officials are obligated to follow the statute. That conclusion supersedes the earlier AG opinion 2020-L-09, which had reached the opposite result without engaging with the bicameralism-and-presentment issue.
What this means for you
If you are a North Dakota candidate or public official thinking about caregiving or security spending
Do not treat AO 25-01 as a safe harbor. Wrigley's opinion explicitly says the Commission lacked authority to issue it, that AO 25-01 has no legal effect, and that the immunity provision in N.D.C.C. § 54-66-04.2(4) does not apply to opinions that exceed the statutory authority. The personal-use prohibition in N.D.C.C. § 16.1-08.1-04.1 is a class A misdemeanor, and the Secretary of State and prosecutors retain enforcement responsibility. Before charging caregiving or security costs to a campaign account, talk to your own lawyer about the personal-use rule as it stands in statute.
If you are a public official who has Commission rules that conflict with a statute
Follow the statute. Wrigley's bottom line is that "if you are presented with a rule promulgated by the Commission that conflicts with a state statute and cannot be reconciled with that statute, you are obligated to follow the properly enacted state statute." The harder real-world step is identifying when there is an actual conflict that cannot be harmonized. Document the conflict, document the harmonization attempt, and keep your agency counsel involved. Note that the Commission could later challenge any specific call you make, and that the courts (not the AG) have final authority on constitutional questions.
If you advise the Ethics Commission
The opinion is candid that the Commission "has tended to swell" its mission and has at times described itself as outside the three branches of government. Wrigley pushes back on both. Going forward, advisory opinions need to be tied to specified facts (the requester's facts, not facts the Commission invents to broaden the answer), and rules cannot rewrite statutes. The North Dakota Supreme Court could see this differently, but until it does, the Commission operates with less elbow room than 2020-L-09 had assumed.
If you cover campaign finance as a journalist or researcher
This opinion does two things at once. It scuttles a high-profile Ethics Commission opinion that had been read as authorizing creative use of campaign funds, and it sets up a separation-of-powers fight over whether the Commission is part of the executive branch, a constitutional commission, or something else. The Commission can disagree, and it has rulemaking authority of its own. The dispute will likely end up in court if the Commission keeps issuing opinions on the older theory or if a public official is prosecuted after relying on AO 25-01.
Common questions
What is AO 25-01 about, in plain English?
It is a Commission opinion that tried to tell candidates and officials when they can use campaign money for caregiving costs and security costs without facing personal-use penalties. The Commission said that when caregiving or security expenses arise from campaign or officeholder activities and the candidate pays fair market value, those expenses can be paid out of the campaign account, with criminal and civil immunity for good-faith reliance.
Why does Wrigley say AO 25-01 is invalid?
Two reasons. The Commission's advisory-opinion authority is statutory, not constitutional, and the statute, N.D.C.C. § 54-66-04.2(1), only allows opinions on "specified hypothetical facts or prospective conduct." AO 25-01 generalized rather than specifying. And the Commission omitted the word "specified" when it quoted the statute in its own opinion. Wrigley reads that omission as a critical error of statutory interpretation that strips the opinion of statutory authority.
Does this mean candidates can never use campaign funds for caregiving or security?
The opinion does not answer that question on the merits. It only answers whether AO 25-01 is a valid grant of immunity. The substantive question of what the personal-use statute, N.D.C.C. § 16.1-08.1-04.1, actually permits is left to the courts and the prosecutors who enforce it.
What happens to a public official who already relied on AO 25-01?
That is exactly the problem AO 25-01 created. Wrigley says the immunity in N.D.C.C. § 54-66-04.2(4) only applies to opinions "issued under this section," and AO 25-01 was outside the section. A reliance defense in a future prosecution would have to be litigated. There is no clean answer in this opinion for officials who already followed AO 25-01 in good faith.
What is the broader holding about Commission rules versus statutes?
Commission rules cannot supersede statutes. The Constitution of North Dakota gives lawmaking power to the Legislative Assembly through bicameralism and presentment. Article XIV granted the Commission rulemaking authority on certain topics, but it did not authorize the Commission to amend, repeal, or contradict statutes. When a rule and a statute conflict and cannot be harmonized, the statute wins.
Does this opinion bind the Commission?
AG opinions in North Dakota govern the actions of public officials "until such time as the question presented is decided by the courts," per the State ex rel. Johnson v. Baker rule the opinion cites. So in practice yes, executive officials act on it. The Commission could challenge the analysis through litigation. The Supreme Court would have the final word.
What about the earlier opinion, 2020-L-09?
That opinion had concluded that two definitions adopted by the Commission in rule could expand and supersede statutory definitions. Wrigley overrules it because it did not engage with bicameralism and presentment, and because, on reexamination, the constitutional structure does not permit Commission rules to rewrite statutes.
Background and statutory framework
The Ethics Commission was created by Article XIV of the North Dakota Constitution, ratified in 2018. The Commission has rulemaking authority and certain investigative powers, plus a hotline mandate. The advisory-opinion power is not in the Constitution; the Legislative Assembly added it by statute (N.D.C.C. § 54-66-04.2), and that statute defines the boundaries.
Section 54-66-04.2(1) authorizes the Commission to issue written advisory opinions on:
- Article XIV of the North Dakota Constitution; or
- state statutes and Commission rules related to transparency, corruption, elections, and lobbying,
applied to "specified hypothetical facts or prospective conduct."
Section 54-66-04.2(4) provides immunity from criminal and civil penalties for individuals who in good faith take an action whose material facts are substantially the same as the conduct presented in an opinion "issued under this section."
The personal-use prohibition the Commission's AO 25-01 was reading lives in N.D.C.C. § 16.1-08.1-04.1, with enforcement responsibilities allocated to the Secretary of State for filings and audit (§§ 16.1-08.1-05, 16.1-08.1-06, 16.1-08.1-06.2) and to prosecutors for class A misdemeanor enforcement (§ 16.1-08.1-07).
The constitutional backdrop:
- Article IV, § 13 requires bills passed by both houses to make law.
- Article V, § 9 requires presentment to the Governor for signature or veto.
- Article XI, § 26 declares the three branches coequal.
- Article XIV grants the Ethics Commission its rulemaking authority and contains a conflicts-control clause that, by its terms, governs conflicts "between any provision of this article and any other provision contained in this constitution," not between Commission rules and statutes.
The opinion canvasses parallel ethics-commission cases in Rhode Island, Florida, and Oklahoma. The Rhode Island Supreme Court's 1992 advisory opinion is treated as an outlier; subsequent Rhode Island decisions have walked it back. Florida's Sullivan and Oklahoma's Cullison and Keating cases recognize that an ethics commission is not a fourth branch of government and operates within the constitutional allocation of powers.
Citations
The opinion relies on the bicameralism-and-presentment line: INS v. Chadha, Clinton v. City of New York, and on the North Dakota side N.D. Legis. Assembly v. Burgum (2018 ND 189) and Reile v. WSI (2025 ND 6). Statutory-construction principles come from City of West Fargo v. Maring, Peterson v. Heitkamp, Enriquez, Meador, Brown, In re M.W., and N.D.C.C. § 1-02-38. Authority of the AG is anchored in N.D.C.C. § 54-12-01 and State v. Hagerty. Out-of-state ethics-commission cases include In re Advisory Op. to the Governor (R.I. 1992 and 1999), Irons v. R.I. Ethics Comm'n, Doe v. R.I. Ethics Comm'n, Lewiss v. R.I. Ethics Comm'n, Gaschen v. R.I. Ethics Comm'n, Comm'n on Ethics v. Sullivan (Fla.), Cullison and Keating (Okla.). Constitutional construction principles come from Thompson v. Jaeger. The opinion's binding effect on public officials is supported by State ex rel. Johnson v. Baker.
Source
- Landing page: https://attorneygeneral.nd.gov/the-honorable-michael-howe/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-L-03.pdf
Original opinion text
STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210
Drew H. Wrigley
ATTORNEY GENERAL
LETTER OPINION
2025-L-03
The Honorable Michael Howe
Secretary of State
600 E. Boulevard Avenue, Dept. 108
Bismarck, ND 58505-0500
Dear Secretary of State Howe:
Thank you for your letter raising several questions about how the powers granted to the Secretary
of State through the Constitution of North Dakota and applicable state statutes, particularly those
related to elections and campaign finance, interact with advisory opinions and administrative rules
issued by the North Dakota Ethics Commission (Commission). You specifically ask whether the
Commission's Advisory Opinion 25-01 (AO 25-01) complied with N.D.C.C. § 54-66-04.2(4) and,
if the opinion reaches outside of the Commission's scope of authority, what effect that has on the
immunity that may be available under N.D.C.C. § 54-66-04.2(4). You also ask what your
obligation is to follow rules promulgated by the Commission when those rules venture to narrow,
expand, or contradict current statutes.
It is my opinion that AO 25-01 exceeded the Commission's legislatively defined authority in
N.D.C.C. § 54-66-04.2 to issue advisory opinions on specified facts or conduct. Instead of
complying with the requirements of N.D.C.C. § 54-66-04.2, the Commission made unauthorized
and expansive legal conclusions in AO 25-01 without legal authority to do so. The Constitution
and laws of North Dakota do not vest the Commission with authority to issue legal opinions on
general questions of law, as it attempted to do in AO 25-01, nor to provide legal advice. As a result
of the Commission's attempt to exercise authority that the Constitution and laws of North Dakota
have not granted it, AO 25-01 is void.
It is also my opinion that any irreconcilable conflict between a Commission rule and a duly enacted
state statute regarding election administration must be resolved in favor of the state statute. Statutes
are adopted by the people's representatives in the Legislative Assembly and signed by the
Governor pursuant to their respective powers under Articles IV and V of the Constitution of North
Dakota. The Commission's rules do not supersede laws made through this constitutionally
mandated process of bicameralism and presentment. Furthermore, the checks and balances among
the three branches of government in the Constitution of North Dakota prohibit the Commission
from exercising the Legislative Assembly's lawmaking authority. A contrary conclusion would
lead to the absurd result that a simple majority of an unelected, five-person commission could
subvert the robust lawmaking process set forth in Articles IV and V of the Constitution of North
Dakota.
The ethics provisions that were added to the Constitution of North Dakota in 2018 and which are
now codified as Article XIV gave the Legislative Assembly new mandates and specific authority,
prohibited certain actions by public officials and lobbyists, and established the Commission, which
was given some investigative and rulemaking authority as well as a mandate to maintain a hotline.
It is clear that Article XIV did not supplant the people's tripartite system of representative
government that has been firmly rooted in North Dakota since statehood and which exists in every
other state and our federal government. The people amended our state constitution in 2018; they
did not repeal and replace it. The authority of the Commission, therefore, must be understood
within the context of the constitutional checks and balances that exist to protect the rights and
liberties of North Dakotans. By recognizing that statutes supersede conflicting rules, Article XIV
can be seamlessly harmonized with the entirety of the Constitution to which it was amended.
BACKGROUND
On June 25, 2025, the Commission issued AO 25-01 in response to questions from a state senator.
The opinion included a statement that it was issued pursuant to N.D.C.C. § 54-66-04.2. The
questions addressed in AO 25-01 are:
1. Are caregiving expenses, defined as direct care, protection, and supervision of
a child or other person with a disability or a medical condition for which a
candidate has direct caregiving responsibility, incurred as a direct result of
campaign activity or holding public office deemed a permissible campaign
expenditure in the state of North Dakota?
2. Are security expenses, defined as non-structural security devices; structural
security devices; professional security personnel and services; and
cybersecurity software, devices, and services, incurred as a direct result of
campaign activity or holding public office deemed a permissible campaign
expenditure in the state of North Dakota?
The Commission concluded in AO 25-01 that: (1) "in some instances" it is permissible to use
campaign funds to pay for caregiving expenses if the candidate or public official can reasonably show
the expenses resulted from campaign or officeholder activities and pays fair market value for them;
and (2) "[d]ue to the general threat environment," it is permissible to use campaign funds to pay for
non-structural security devices, cybersecurity software, and security personnel when incurred as a
result of campaign activity and holding public office as long as fair market value is paid for them.
The Commission went on to propound in AO 25-01 that "[u]ntil and unless subsequent
developments in the law occur, criminal and civil penalties may not be imposed upon an individual
for an action taken in accordance with this advisory opinion when: (1) the individual acts in good
faith; and (2) the material facts surrounding the action taken are substantially the same as the conduct
presented in the opinion."
The conclusions in AO 25-01 conflict with your interpretation of the statute prohibiting the personal
use of campaign contributions for a personal benefit to the candidate or another person, for a loan to
another person, to knowingly pay for more than the fair market value for goods or services purchased
for the campaign, or to pay a criminal fine or civil penalty. Your Constitutional office and criminal
prosecutors have the legal responsibility to enforce this statute. Specifically, your office has the duty
to provide instructions, conduct training, and "promot[e] uniform application of campaign finance
and disclosure requirements and the uniform filing of statements, registrations, or reports according
to [N.D.C.C. ch. 16.1-08.1]." Campaign finance contributions and expenditure statements are filed
with your office, and it is your responsibility to audit any filed campaign finance statements that have
a substantial irregularity. Additionally, the Legislative Assembly made violations of the law
prohibiting the personal use of campaign funds class A misdemeanors, giving prosecutors the
authority to enforce the statute. If AO 25-01 were a lawfully authorized and valid opinion, it would
place you and your office in the position of having to choose between following the laws of North
Dakota that you are charged with administering or opting instead to recognize the Ethics
Commission's attempted grant of immunity to individuals who violate those laws as you interpret
them.
ANALYSIS
AO 25-01 Exceeded the Commission's Authority to Issue Advisory Opinions.
As the Commission noted in AO 25-01, the authority of the Commission to issue an advisory
opinion originates from statute and not from the Constitution of North Dakota. Article XIV of the
Constitution of North Dakota, which established the Commission, does not mention advisory
opinions. Nor does it authorize the Commission to grant legal immunity, as provided in N.D.C.C. §
54-66-04.2. When issuing advisory opinions, the Commission is bound by the limits set forth by
the Legislative Assembly in N.D.C.C. § 54-66-04.2, which states:
- In response to a request from a public official, candidate for elected office, or
lobbyist, the ethics commission may provide a written advisory
opinion regarding the application of the following to specified hypothetical
facts or prospective conduct:
a. Article XIV of the Constitution of North Dakota; or
b. State statutes and ethics commission rules related to transparency,
corruption, elections, and lobbying. - Within fourteen days after receiving a request for a written advisory opinion,
the ethics commission shall notify the requester whether the commission will
provide an opinion. - Within ninety days after notifying a requester a written advisory opinion will
be provided, the ethics commission shall issue the opinion. - Criminal and civil penalties may not be imposed upon an individual for an
action taken in accordance with an opinion issued under this section if:
a. The individual acts in good faith; and
b. The material facts surrounding the action taken are substantially the same as
the conduct presented in the opinion. - Opinions and requests for opinions under this section are open records, except
names of persons in the opinions and requests are exempt records. - The ethics commission shall publish all written advisory opinions issued under
this section on a website that is accessible to the public.
Under subsection 1, any question addressed by a Commission advisory opinion must be limited to
"specified hypothetical facts or prospective conduct." In AO 25-01, the Commission correctly
cited to N.D.C.C. § 54-66-04.2 for the Commission's authority to issue advisory opinions, but,
when quoting the statute, the Commission inexplicably excluded the language requiring advisory
opinions to be limited to "specified" hypothetical facts or prospective conduct. Instead, the
Commission incorrectly stated that the opinion need only "relate to hypothetical facts or
prospective conduct." This omission is much more than a mere technicality. Rather, it is a critical
error in applying long-standing rules of statutory interpretation set forth by the North Dakota
Supreme Court, and it has the effect of misleading those it seeks to inform.
In defining statutory terms, words are given their plain, ordinary, and commonly understood
meaning, and consideration should be given to the ordinary sense of statutory words, the context
in which they are used, and the purpose which prompted their enactment. Additionally, North
Dakota courts "interpret statutes to give meaning and effect to every word, phrase, and sentence,
and do not adopt a construction which would render part of the statute mere surplusage." Our
courts also assume the Legislative Assembly did not intend "absurd or ludicrous result[s] or unjust
consequences" and will "construe statutes in a practical manner, giving consideration to the
context of the statutes and the purpose for which they were enacted."
The word "specified" in the statute modifies both "hypothetical facts" and "prospective conduct."
The plain, commonly understood meaning of the word "specified" is "to name or state explicitly
or in detail." The questions and opinions set forth in AO 25-01, however, are not related to any
"explicit" or "detailed" facts or conduct. Instead, the underlying questions and resultant
conclusions are open-ended and generally applicable to individuals engaged in an expansive array
of activities.
The Commission uses the undefined, statutory terms "campaign activity" and "officeholder
activity" in its description of when caregiving or security expenses may be covered by campaign
funds. This does not give readers any meaningful understanding of the conduct to be protected
by the advisory opinion. The opinion includes a few examples or "scenarios" created by the
Commission for illustration, but even the scenarios are generalized and incorporate broad
concepts. For example, in one scenario, the Commission concludes that simply needing a regularly
scheduled caregiver after running for, or serving in, office when an individual did not need the
caregiver before, is sufficient to show that the caregiving expenses "resulted from the campaign
and holding public office," and therefore using campaign funds for the caregiver "is permitted."
The scenario addresses only the timing of, not the specific reason for, hiring the caregiver,
leading readers to assume that the timing is sufficient for the grant of immunity normally provided
by an advisory opinion, regardless of any other facts. Another example in AO 25-01 simply states
that an individual who needs to participate in evening and weekend campaign events or public
duties can use campaign funds for caregivers, without providing additional facts or
circumstances. Even if it were appropriate for the Commission, rather than the requester, to pose
the factual scenarios for the advisory opinion, the Commission did not confine the advisory opinion
to the general scenarios it created. Instead, the Commission made its conclusions and its asserted
grant of immunity applicable to an even broader range of actions subject to expansive
interpretation.
The need for specificity in the Commission's advisory opinions is essential to "give meaning and
effect" to the word "specified" in N.D.C.C. § 54-66-04.2 and to ensure the statute as a whole is
given meaning and effect, is applied "in a practical manner," and is read to avoid an "absurd or
ludicrous result." Subsection 4 of the statute provides criminal and civil immunity to "an individual
for an action taken in accordance with an opinion issued under N.D.C.C. § 54-66-04.2 if the
individual acts in good faith and the material facts surrounding the action taken are substantially
the same as the conduct presented in the opinion." When the question and advisory opinion lack
specificity, the "material facts" surrounding an individual's actions cannot be meaningfully
compared to any conduct in the opinion. The conduct is simply not defined well enough to
determine whether the "material facts" are "substantially the same." This scenario undermines
the foresight of the Legislative Assembly when it established a prerequisite for clarity in the
Commission's advisory opinions. Because ignoring the word "specified" leads to an absurd result,
or at the very least, does not give effect to the full statutory text, it violates the well-established
rules of statutory construction. As a result, an advisory opinion issued by the Commission that
lacks specificity is outside of the authority delegated to the Commission by the Legislative
Assembly.
It is my opinion that the Commission exceeded its statutory authority when it issued AO 25-01
because the questions and answers in that advisory opinion do not meet the clearly stated
requirements of N.D.C.C. § 54-66-04.2. The Commission has no authority to issue an opinion
based on general questions of law or to provide legal advice to the Secretary of State. As a result,
AO 25-01 has no legal effect.
Commission Rules Cannot Supersede State Statutes Enacted by the Legislative Assembly
through Bicameralism and Presentment.
You also ask whether you must follow rules promulgated by the Commission that attempt to
narrow, expand, or contradict state statutes. Essentially, this question is whether a simple majority
of the five, unelected members of the Commission, through their rulemaking authority, can
effectively amend or repeal the laws adopted by the Legislative Assembly and signed by the
Governor. It is my opinion that they cannot as there is an insufficient legal basis for them to do so.
Further, it is my opinion that, because the Commission, through its rulemaking authority, cannot
effectively amend or repeal the laws adopted by the Legislative Assembly and signed by the
Governor, a public official does not have to follow rules promulgated by the Commission that
conflict with state statutes. To the extent that conclusion is in tension with prior Attorney General
Opinion 2020-L-09, this opinion replaces and supersedes the analysis and conclusion set forth
there.
The Commission's rulemaking authority stems from Article XIV of the Constitution of North
Dakota and from statutes. It is well-settled law that any rules promulgated pursuant to a statute
cannot exceed the authority delegated by the Legislative Assembly in that statute, and the
Legislative Assembly cannot delegate its lawmaking authority. As a result, rules authorized by
statute cannot supersede statutes. This opinion will therefore address only the Commission's
rulemaking authority under the Constitution: rulemaking authority that is explicit though also
limited.
Article IV of the Constitution provides that "[n]o law may be enacted except by a bill passed by
both houses..." and "[t]he legislative assembly shall enact all laws necessary to carry into effect
the provisions of this constitution." Article V provides that "[e]very bill passed by the legislative
assembly must be presented to the governor for the governor's signature," and "[i]f the governor
signs the bill, it becomes law." Article V also empowers the governor to "veto a bill" or an item
"in an appropriations bill."
"The power to make a law is legislative," and actions are effectively lawmaking when they "alter
the legal rights, duties and relations of persons... outside the legislative branch." Or, as Justice
Clarence Thomas stated, lawmaking is the "formulation of generally applicable rules of
private conduct." Both the United States Supreme Court and the North Dakota Supreme Court
have held that, to be effective, a law must be adopted by both chambers of the legislature
("bicameralism") and presented to the head of the executive branch to sign or veto
("presentment").
The procedures governing the enactment of statutes set forth in the text of Article
I [of the United States Constitution] were the product of the great debates and
compromises that produced the Constitution itself. Familiar historical materials
provide abundant support for the conclusion that the power to enact statutes may
only "be exercised in accord with a single, finely wrought and exhaustively
considered, procedure."
Or, as Justice Alito has stated, "[o]ur Constitution, by careful design, prescribes a process for
making law, and within that process there are many accountability checkpoints." Those
checkpoints, including bicameralism and presentment, "make lawmaking difficult by design."
The "inefficiency" inherent in the lawmaking process "'serves a valuable' liberty-preserving
'function,'" even if it comes at the expense of "righting every wrong." Because the
consequences of bypassing the "single, finely wrought and exhaustively considered, procedure"
for lawmaking can be dire, the Framers of the Constitution zealously protected the power to make
law from the executive branch, which issues rules without bicameralism and presentment.
The North Dakota Supreme Court also has emphasized the importance of the "constitutionally
mandated procedures" for lawmaking "including a recorded vote of a majority of the members
elected to each house followed by presentment to the governor for signature." Failing to follow
these processes when making laws "would violate the separation of powers" under the Constitution
of North Dakota.
Contrast the constitutionally required process for lawmaking with the Commission's rulemaking
process. Before finalizing its rules, the Commission simply provides notice of its proposed rules
and reviews any comments on those proposed rules that are submitted to the Commission. Then,
as long as a simple majority (three members) vote in favor of a proposed rule, it is adopted. This
process is neither "finely wrought" nor "exhaustively considered." It lacks the necessary
"accountability checkpoints" for lawmaking.
If the Commission's rules were allowed to supersede statutes adopted by the legislature and signed
by the Governor, then three, unelected individuals who are not accountable to the public could, in
effect, make laws while bypassing the intentionally difficult, "liberty-preserving" process of
lawmaking. This result would be diametrically opposed to the protections for individuals that
form the basis for the separation of powers.
This analysis does not, and is not intended to, ignore the constitutional authority of the Commission
to make certain rules. Article XIV specifically grants circumscribed rulemaking authority to the
Commission. However, that authority, like all government authority, is limited for the protection
of individual liberties and exists as part of a balance of powers that has been enshrined in
America's and North Dakota's laws from their beginning.
Had the people of North Dakota wished it, the constitutional amendment creating the Commission
could have included language giving Commission rules equal standing to legislatively enacted
laws, but that amendment did not. For example, the Oklahoma Ethics Commission's rules, unlike
the Commission's rules in North Dakota, are subject to the checks and balances of bicameralism
and presentment. Each rule promulgated by the Oklahoma Ethics Commission must be "presented
to each House of the Legislature and to the Governor on the second day of each legislative session,"
and, only "[i]f these rules are not disapproved by joint resolution, subject to veto by the Governor,"
will they become effective. Repeals and modifications of ethics rules in Oklahoma are subject to
the same procedure. Moreover, the Oklahoma legislature may repeal and modify ethics
commission rules, although they may not completely supplant the ethics commission's role in
regulating state government ethics. The Oklahoma Supreme Court has therefore held that the
constitutionally authorized rules of the Oklahoma Ethics Commission have "no less weight" than
statutes adopted by the Oklahoma legislature. Oklahoma's constitutional provision governing
ethics rules was adopted in 1990. Similar processes could have been, but were not, built into
North Dakota's 2018 constitutional amendment that established the Commission. Authority for
the Commission to make laws cannot be read into the Constitution of North Dakota retroactively
when the necessary constitutional language was omitted from the ballot measure considered by the
public.
This office also is aware of nonbinding advisory opinions that were issued by the Rhode Island
Supreme Court to the Rhode Island Governor regarding the authority of that state's ethics
commission. In the 1999 advisory opinion, the Rhode Island ethics commission's prohibition
against legislators serving on public boards was invalidated. However, based on a 1992 advisory
opinion, the judges also stated that, while the Rhode Island legislature has concurrent jurisdiction
to make substantive laws regarding ethical conduct, it could not make laws that contradict the
ethics commission's code of conduct. Since 1992, Rhode Island courts have recognized more
limitations on the ethics commission's powers. Moreover, the 1992 and 1999 advisory opinions
are outliers to the long line of federal and state cases requiring bicameralism and presentment for
lawmaking.
Critically, the Rhode Island court's conclusion is also based on a very different constitutional grant
of authority to an ethics commission from the one in the Constitution of North Dakota. For
example, instead of providing general rulemaking authority, the Rhode Island Constitution
requires the ethics commission to adopt a code of conduct, by a two-thirds vote of its members,
that applies only to public officeholders and public employees. The Rhode Island Constitution
also explicitly grants the ethics commission the power to "impose penalties" and remove officials
from office. The Constitution of North Dakota does not grant these vast powers to the
Commission. Due to the context of the Rhode Island Supreme Court's statements about that state's
code of conduct and the many substantive distinctions between the Constitutions of Rhode Island
and North Dakota, I do not find the Rhode Island advisory opinions to be persuasive authority for
determining whether the Commission can supersede North Dakota's laws.
Also, N.D.A.G. 2020-L-09, a previous opinion from this office that concluded that two definitions
adopted by the Commission in rule expanded and superseded narrower statutory definitions, is
hereby overruled. The previous opinion failed to address the constitutional issue of bicameralism
and presentment and the legal requirement to harmonize constitutional provisions to ensure each
is given full effect. This office has reexamined the questions addressed in the prior opinion more
fully with these legal principles in mind, as set forth herein. The resultant analysis is clear that the
Constitution of North Dakota does not permit the Commission to step into the shoes of the
Legislative Assembly to make law.
Article XIV Does Not Empower the Commission to Ignore Constitutional Checks and
Balances, including Bicameralism and Presentment, and Did Not Create a Fourth Branch
of Government.
In some of its public statements, the Commission has asserted that Article XIV of the Constitution
of North Dakota created the Commission as a fourth branch of government that exists outside or
above the other three branches of government. These statements imply the Commission is not
subject to the separation of powers and to the requirement for bicameralism and presentment when
making laws. However, the Commission does not exist outside the three branches of North
Dakota's government. Nor does it have the authority to discard our tripartite framework for state
government by issuing rules that narrow, expand, or contradict statutes. Even the Rhode Island
Supreme Court, dealing with a much more expansive grant of authority to a state ethics
commission, cautioned that the "[Rhode Island] Constitution in no manner empowers or
authorizes the ethics commission to restructure and reorganize the constitutional framework of our
state government." "The ethics commission simply lacks constitutional authority to modify the
structure of Rhode Island's government.... We are of the opinion that the people of this state in
adopting the 1986 Constitution had no intention of creating a body so limitless in its power as to
constitute a paramount fourth branch of government." The Florida Supreme Court reached the
same conclusion when that state's ethics commission wrongly asserted that "it possesse[d]
constitutional status separate and independent from the other branches of Florida government."
Moreover, the Commission's asserted powers invite exacting scrutiny because, "when an agency
construes its own enabling act, it is subject to increased scrutiny inasmuch as 'government
agencies have a tendency to swell, not shrink, and are likely to have an expansive view of their
mission.'"
In analyzing the authority of the Commission, this office adheres to the time-honored rules of
constitutional construction put forth by the North Dakota Supreme Court:
When interpreting constitutional provisions, we apply general principles of
statutory construction. We must give effect and meaning to every provision and
reconcile, if possible, apparently inconsistent provisions. We presume the
people do not intend absurd or ludicrous results in adopting constitutional provisions,
and we therefore construe such provisions to avoid those results.
Article XI of the Constitution of North Dakota states that the "legislative, executive, and judicial
branches" of government are "coequal." There is no language in Article XIV that alters this
fundamental balance of power among the three branches of state government; that amends the
process for lawmaking in the Constitution; that subtracts from the constitutional powers allocated
to other state entities; or that establishes a fourth branch of government. Nor is this Office aware
of any contemporaneous evidence indicating that the people of North Dakota intended such results
when they ratified Article XIV.
Absent an explicit declaration of intent or clear constitutional language to the contrary, we should
not jettison our longstanding, tripartite system of government and the finely tuned process of
lawmaking with its attendant checks and balances. Such a monumental change to the foundations
of state government would require more than a tacit inference.
Article XIV does include a statement that "[i]n any case of a conflict between any provision of this
article and any other provision contained in this constitution, the provisions of this article shall
control." However, under that provision's plain language, there must be an actual conflict
between Article XIV and another part of the Constitution before it would have any effect. And
under the standard rules of constitutional construction all attempts to reconcile even seemingly
inconsistent provisions must be made, as conflicts are disfavored. So it is reasonable to assume
that this provision will be used sparingly.
Further, it is imperative to keep in mind that the provision in Article XIV regarding conflicts is
limited on its face to conflicts that are deemed to exist between the language of Article XIV and
other parts of the Constitution. It does not apply to conflicts between the Commission's rules and
the Constitution or to conflicts between the Commission's rules and a statute. References to Article
XIV in the Constitution are not synonymous with references to the Commission's rules.
Fortunately, Article XIV's grant of rulemaking authority to the Commission can be readily
harmonized with the many other parts of the Constitution that address the lawmaking authority of
the legislative branch and the need for bicameralism and presentment in the lawmaking process.
Mindful that our system of government does not permit rules to supplant statutes, we must uphold
the constitutional process of bicameralism and presentment for lawmaking while still giving effect
to the Commission's rulemaking provisions in Article XIV. The harmonization in this opinion is
consistent with the many provisions in Article XIV that mandate or authorize the Legislative
Assembly to make laws on specified topics and to otherwise "facilitate, safeguard, and expand"
Article XIV. To the extent the Legislative Assembly may someday encroach against the
prohibition on enacting laws that "hamper, restrict, or impair" Article XIV, the judicial branch
is authorized to make that determination and hold the law invalid in accordance with the
Constitution.
To interpret the rulemaking language in Article XIV otherwise would make three of the five
unelected members of the Commission the ultimate law-making body for the state. They would
effectively be able to make and amend laws without the open, public debates to which legislation
is subjected, without the votes of the people's elected representatives, and without the opportunity
for the Governor to sign or veto their pronouncements. Such would be a power greater than any
other government entity, including the judicial branch, which is unable to amend statutes and
ultimately can declare statutes invalid only if four of the five Supreme Court justices hold that they
violate the constitution. Accordingly, it is my opinion that if you are presented with a rule
promulgated by the Commission that conflicts with a state statute and cannot be reconciled with
that statute, you are obligated to follow the properly enacted state statute.
Sincerely,
Drew H. Wrigley
Attorney General
CJN/mjh
This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until
such time as the question presented is decided by the courts.