North Dakota Council of School Administrators v. Sinner

VANDE WALLE, Justice,

concurring specially.

I concur in the result reached in the majority opinion and I agree with the rationale contained therein. But I write separately to sound a note of caution concerning the delegation of legislative authority. I am aware that the “modern view” recognizes that in a “complex area” it may be necessary and appropriate to delegate legislative authority in broad and general terms if that delegation is accompanied by adequate standards and procedural safeguards. In our increasingly intricate society, resulting in consistently greater involvement of government, that may be inevitable, particularly in states such as North Dakota which do not desire a full-time professional legislative branch of government. Nevertheless, there appears to me to be some distinction between those regulatory and administrative functions of the Legislature which are freely delegated by that body and the more basic role of appropriating the funds wherewith those delegated functions are to be performed. I suggest those more fundamental roles demand closer review.

There should be little doubt that one of the more basic roles of the legislative branch — if not the most fundamental role because of the repetitiveness with which it must be performed — is that of “the power of the purse,” i.e., the appropriation of funds for the operation of the entire government.1 N.D. Const, art. IV, §§ 35 *287and 36 [specifying the manner and time for appropriation bills] and N.D. Const. art. X, § 12 [public moneys to be disbursed only pursuant to legislative appropriation]. This is particularly true where the object of the appropriation is for a purpose ordained by the Constitution. N.D. Const. art. VIII, § 1 [Legislative Assembly must make provision for establishment and maintenance of a system of public schools]. State ex rel. Walker v. Link, 232 N.W.2d 823 (N.D.1975) [Legislature cannot refuse to fund a constitutionally mandated function].

Section 54-44.1-12, NDCC, which authorizes the director of the budget to exercise control over the execution of the budget affecting the departments and agencies of state government — but not the separate legislative and judicial branches thereof— does, as the majority observes, set forth circumstances for reducing appropriations. Subsection 1 of that section sets forth the first standard, i.e., that the “moneys and estimated revenues in a specific fund from which the appropriation is made are insufficient to meet all legislative appropriations from the fund.” Although this is a reason for reducing the appropriation, I am less convinced that it sets forth an objective standard for the director of the budget to follow. Fluctuations in revenue estimates over the more than two-year period from the time of the appropriation by the Legislative Assembly to the end of the biennium for which the appropriations were made should not be unexpected in, for example, a time of drouth and recession. But § 54-44.1-12 does little more than recognize that possibility. It is important that the Legislative Assembly not delegate to the director of the budget the authority to substitute that officer’s judgment for the judgment of the Assembly. It is equally important not to thwart the Assembly’s intent [see subsection 3 of § 54-44.1-12, NDCC]. Provisions which would, for example, establish the time at which the comparison of income estimates with actual revenues is to be made; describe the procedure to be used in predicting income; require the budget director to restore an allotment or a portion thereof, if the estimates upon which the director relied changed; or prescribe a system whereby the anticipated revenue at a specified date will determine whether or not a reduction is to be made, might provide better objective standards by which to delegate to the director of the budget the authority to reduce appropriations.

I believe the present statute is so broad and vague as to be alarmingly close to the edge of what is a legally acceptable delegation of legislative authority. The director of the budget is authorized to reduce appropriations if the estimated revenues will be insufficient to meet all legislative appropriations from a particular fund [in this case the general fund, which is the source of funds for a substantial portion of the fundamental activities of state government] and in so doing the reductions must be uniform for all departments and agencies that receive moneys from that fund. But other than those restrictions there are no standards by which the director is guided as to the extent of the reductions or the obligation to restore those reductions if revenue estimates improve. Perhaps most importantly, there are few, if any, procedural safeguards whereby the actions of the director may be questioned by those who disagree with the predicate for those actions. I am concerned the majority opinion will be relied upbn to expand the delegation of legislative authority in this troublesome area of appropriations. I suggest that while affirming the denial of the writ of mandamus in this instance, we ought to sound a warning that the current statute contains legal pitfalls which could result in a contrary conclusion in other circumstances.

LEVINE, J., concurs.

. Cases such as State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105 (1930), and Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405 (N.D. 1971), involved the taxing and appropriation authority of the Legislative Assembly, but did not involve an underlying purpose, such as the *287maintenance of elementary and secondary education in the State.