concurring specially.
[¶ 16] I agree with the result reached by the majority. I write separately to call for the repudiation of the unconstitutional invasion of the province of the legislative branch by the judicial branch.
[¶ 17] The codified laws of North Dakota specifically provide, “No part of this code is retroactive unless it is expressly declared to be so.” N.D.C.C. § 1-02-10.
[¶ 18] The majority says, at ¶ 10, that this Court has “carved out an exception to the general bar to retroactivity” for “laws which confer benefits,” citing to State v. Cummings, 386 N.W.2d 468 (N.D.1986), and its progeny.
[¶ 19] There is no legal basis for the courts to “amend” the unambiguous enactment of the legislature, absent constitutional infirmity. Judges have no right to substitute their policy preferences for the legitimate policy preferences of the legislature, clearly expressed and properly enacted. “A court is not empowered to substitute its judgment for that of the legislature on matters of policy, nor to strike down a statute which is not manifestly unconstitutional even though the court may consider it unwise.” 1 Norman J. Singer, Sutherland Statutory Construction, § 2:1 (6th ed.2002) (collecting cases); see, e.g., Ferguson v. Skrupa, 372 U.S. 726, 731-32, 83 S.Ct. 1028,10 L.Ed.2d 93 (1963).
[¶ 20] The Constitution of North Dakota establishes separation of functions. “The legislative, executive, and judicial branches are coequal branches of government.” N.D. Const, art. XI, § 26. And “the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives,” with the people reserving rights including initiative and referendum. N.D. Const, art. Ill, § 1.
[¶ 21] “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. There is nothing ambiguous about the words, “No part of this code is retroactive unless it is expressly declared to be so.” As the statutes of North Dakota make clear, the “code establishes the law of this state respecting the subjects to which it relates.” N.D.C.C. § 1-02-01. And words “used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears.” N.D.C.C. § 1-02-02.
[¶ 22] Neither the majority here nor the majorities in Cummings and its progeny have cited any constitutional infirmity with the provision: “No part of this code is retroactive unless it is expressly declared to be so.” There is no legal basis for the courts to graft on an amendment, adding the words, “except for laws which confer benefits.” The legislature has told us that if a new enactment is to be retroactive, the legislature iisei/will expressly declare it to be so. If this rule is to be changed, that too is the function of the legislature. This fundamental principle is as old as the con*614stitution and as enduring as our American democracy.
[¶ 23] Dale V. Sandstrom