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North Dakota Budget Bill Struck Down as Violation of ‘Single Subject’ Constitutional Rule

The state supreme court relied on a seldom-used state constitutional provision to upend a long-standing state legislative practice.


Though there’s been increased attention on state constitutional law recently, many provisions that have the potential to impact state governance and even day-to-day life of the general public remain understudied.

One such forgotten provision is sowing discord in North Dakota.

Earlier this month, the North Dakota Supreme Court relied on an infrequently cited constitutional provision to invalidate the budget bill for the state’s Office of Management and Budget. The provision, Article IV, Section 13, is known as the “single subject rule.” It holds that “no bill shall contain more than one subject, and the subject shall be clearly expressed in the title.”

The aim of the single subject rule is to prevent “logrolling” — the undemocratic combination of disparate provisions into a single act — as well as the passage of legislation that members of the legislature and public do not fully understand. The good governance motives behind single subject rules explain why 43 states have some version of it. But the commonalities end there. State courts have collectively struggled to precisely define what constitutes a “subject,” leading to differing interpretations and concerns that such provisions conflict with rule-of-law principles such as clarity of the law and predictability in its application. Those concerns have manifested in North Dakota.

The board that oversees North Dakota’s government retirement plans sued the North Dakota Legislative Assembly to block the budget bill, which increased the number of lawmakers who sat on the retirement board. The board made several state constitutional arguments against the bill — including that the appointment of legislators to the board violated separation of powers principles and ran afoul of prohibitions on lawmakers holding other appointments during their terms in office — but the supreme court declined to address the board’s remaining claims after finding the single subject rule dispositive.

In defending the bill before the state supreme court, the North Dakota Legislative Assembly argued, first, that the court’s precedent has tended toward a “loose” interpretation of the rule that affords tremendous deference to the legislature. Next, it said, “an act is not invalidated simply because the title may enumerate a plurality of subjects, when all of these subjects taken together are but one subject.” In other words, a "broad subject” is still a single subject. The assembly also argued that invalidation of a legislative act under the single subject rule is a practice of the past, calling the rule “antiquated and rare.” Finally, it maintained that the presumption of constitutionality afforded to legislative acts supported the validity of the budget bill.

Though the court agreed that all statutes are presumed to be constitutional, the court did not find that presumption dispositive. The court then picked apart each of the assembly’s arguments. First, it made clear that though the single subject limitation may not regularly lead to invalidation of legislative acts it remains a “valid and active part of [the state’s] fundamental law.” In other words, infrequent use is not a bar on judicial enforcement of a constitutional provision.

Next, on the question of the consistency of the court’s enforcement, the state contested the assembly’s characterization of the court’s precedent as “loose.” It acknowledged precedent liberally construing legislation to satisfy the single subject rule but said that did not mean “that no judicially enforceable limits exist for the breadth of a legislative subject or whether a provision is germane to that subject.”

To illustrate those limits, the court looked to decisions by other state supreme courts interpreting similar single subject rules. For example, it quoted a California Supreme Court case that held statutory provisions in a fiscal affairs bill were “too broad in scope” because they encompassed any “measure which has an effect on the budget.”

Finally, the court zeroed in on the length and variety of covered topics in the bill’s title as evidence that it addressed more than one subject. Indeed, the title of the final version of the bill contained 630 words — enough to fill a single-spaced page (which the court reprinted in its opinion). Within the bill itself, the legislature packed 68 sections — some appropriating funds, others setting school funding, another pertaining to transportation, and yet another related to a commission overseeing construction at the state capitol building. So, despite the court granting the legislature “considerable flexibility in defining the subject of legislation” and liberally interpreting the title to assess its compliance with the rule, the court nevertheless concluded that the bill amounted to the “clearest [kind of] violation of the single subject rule because the act embraces multiple subjects, all of which are expressed in the title.” 

The decision has the potential to drastically change legislative work and policymaking in North Dakota. Unsurprisingly, political actors across the state have voiced passionate, conflicting assessments of the court’s action. North Dakota’s attorney general called the ruling “seismic in its impact.” Some state officials lamented the upending of the legislature’s long-running practice of turning this budget bill into a “cleanup bill” at the end of session. Other officials agreed with the court that the budget bill had inappropriately become a major policy package. Gov. Doug Burgum, a Republican candidate for president, demonstrated the seriousness of the decision by leaving the campaign trail and convening an emergency session of the assembly. Tellingly, the assembly successfully passed 14 bills to fill in the appropriation blanks left by the voided bill.

It’s relatively easy to see why the bill violated the single subject rule. The harder question — and the question that requires additional scholarly attention — is what courts should do with a state constitutional provision that is invoked so infrequently advocates label it “a dead letter,” like this one. The reawakening of dormant constitutional provisions will almost always raise concerns about arbitrary enforcement, especially from targeted parties who may question the motives behind its application to their case. Underused, perhaps understudied, provisions are also vulnerable to critiques that the rigor of the legal analysis is lacking in the rare cases they arise.

Advocates of the rule of law, therefore, should encourage good “constitutional hygiene” — pointing out provisions that may need to be refreshed or, in some cases, removed.

Kevin Frazier is an assistant professor of law at the Benjamin L. Crump College of Law at St. Thomas University. He previously served as a clerk on the Montana Supreme Court.

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