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    "primary_text": "FILED\n IN THE OFFICE OF THE\n CLERK OF SUPREME COURT\n SEPTEMBER 28, 2023\n STATE OF NORTH DAKOTA\n\n IN THE SUPREME COURT\n STATE OF NORTH DAKOTA\n\n 2023 ND 185\n\nBoard of Trustees of The North Dakota Public\nEmployees Retirement System, Petitioner\n v.\nNorth Dakota Legislative Assembly, Respondent\n\n No. 20230158\n\nPetition for Declaratory Relief and Writ of Injunction.\n\nDECLARATORY JUDGMENT AND WRIT OF INJUNCTION GRANTED,\nAND MOTION TO SUPPLEMENT THE RECORD DENIED.\n\nOpinion of the Court by Justice Crothers, in which Justice Tufte joined. Chief\nJustice Jensen filed an opinion concurring specially. Justice McEvers filed an\nopinion concurring specially in which District Judge Lee joined.\n\nRobert D. Klausner (argued), Plantation, FL, Christopher Rausch (appeared)\nand Elizabeth A. Elsberry (appeared), Bismarck, ND, Lindsey M. Garber (on\nbrief) and Sean M. Sendra (on brief), Plantation, FL, Special Assistant\nAttorneys General, for Petitioner.\n\nPhilip J. Axt, Solicitor General, Bismarck, ND, for Respondent.\n Bd. of. Trustees of The N.D. Public Employees Retirement System v.\n N.D. Legislative Assembly\n No. 20230158\n\nCrothers, Justice.\n\n[¶1] The Board of Trustees of the North Dakota Public Employees Retirement\nSystem petitions this Court seeking declaratory relief and a writ of injunction,\nchallenging N.D.C.C. § 54-52-03 and section 41 of S.B. 2015 (2023), enacted by\nthe 68th Legislative Assembly, both of which provide for the appointment of\nsitting legislators to the Board. The Board claims the law placing legislators\non the Board violates N.D. Const. art. IV, § 6; violates the separation of powers\nbetween branches of government and encroaches on the powers of the\nexecutive branch in violation of articles IV, V and XI of the Constitution;\nviolates the common-law rule against incompatibility of office; and violates the\nsingle subject rule of N.D. Const. art. IV, § 13. We grant the requested review,\nconclude section 41 of S.B. 2015 violated article IV, § 13 of the North Dakota\nConstitution, and invalidate S.B. 2015. Because the constitutional \"single\nsubject\" rule is dispositive, it is unnecessary to address the Board's remaining\nclaims.\n\n[¶2] Subsequent to oral argument, the Board requested leave to supplement\nthe record with information arising after the initiation of the petition for\ndeclaratory relief and the request for a writ of injunction. The additional\ninformation is not relevant to the dispositive issue and the motion is denied.\n\n I\n\n[¶3] On June 1, 2023, the Board petitioned this Court to exercise its original\njurisdiction under N.D.C.C. § 27-02-04, seeking declaratory relief under\nN.D.C.C. § 32-23-01 and a writ of injunction under N.D.C.C. § 32-06-01. The\nBoard filed a motion for a preliminary injunction before the hearing, which this\nCourt denied.\n\n[¶4] The Board seeks a declaration that section 41 of S.B. 2015 is void ab\ninitio and N.D.C.C. § 54-52-03 is invalid, both of which provide for appointment\n\n 1\n of sitting legislators to the Board, because they violate article IV, § 6 of the\nNorth Dakota Constitution, the separation of powers requirement under\narticles IV, V and XI of the Constitution, and the common-law doctrine of\nincompatibility of office. The Board also seeks a declaration that S.B. 2015 is\ninvalid because the joinder of an appropriation bill with an amendment to the\nBoard's structure is not germane, constitutes \"logrolling,\" and is in violation of\narticle IV, § 13 of the Constitution. The Board requests a writ of injunction\npreventing the appointment of additional legislators and the continued service\nof sitting legislators on the Board.\n\n[¶5] Section 54-52-03, N.D.C.C., after the recent amendments, provides:\n\n \"1. A state agency is hereby created to constitute the governing\n authority of the system to consist of a board of eleven individuals\n known as the retirement board. No more than one elected member\n of the board may be in the employ of a single department,\n institution, or agency of the state or in the employ of a political\n subdivision. An employee of the public employees retirement\n system or the state retirement and investment office may not serve\n on the board.\n\n 2. Four members of the legislative assembly must be appointed to\n serve on the board. The majority leader of the house of\n representatives shall appoint two members of the house of\n representatives and the majority leader of the senate shall appoint\n two members of the senate. The members appointed under this\n subsection shall serve a term of two years.\n\n 3. Four members of the board must be appointed by the governor\n to serve a term of five years. Each appointee under this subsection\n must be a North Dakota citizen who is not a state or political\n subdivision employee and who is familiar with retirement and\n employee benefit plans. The governor shall appoint one citizen\n member to serve as chairman of the board.\n\n 4. Three board members must be elected by and from among the\n active participating members, members of the retirement plan\n established under chapter 54-52.6, members of the retirement plan\n\n 2\n established under chapter 39-03.1, and members of the job service\n North Dakota retirement plan. Employees who have terminated\n their employment for whatever reason are not eligible to serve as\n elected members of the board under this subsection. Board\n members must be elected to a five-year term pursuant to an\n election called by the board. Notice of board elections must be given\n to all active participating members. The time spent in performing\n duties as a board member may not be charged against any\n employee's accumulated annual or any other type of leave.\n\n 5. The members of the board are entitled to receive one hundred\n forty-eight dollars per day compensation and necessary mileage\n and travel expenses as provided in sections 44-08-04 and 54-06-09.\n This is in addition to any other pay or allowance due the chairman\n or a member, plus an allowance for expenses they may incur\n through service on the board.\n\n 6. A board member shall serve until the board member's successor\n qualifies. Each board member is entitled to one vote, and six of the\n eleven board members constitute a quorum. Six votes are\n necessary for resolution or action by the board at any meeting.\"\n\n(Emphasis added.) Section 41 of S.B. 2015 amended N.D.C.C. § 54-52-03 by\nincreasing the number of Board members from nine to eleven and changing\nthe number of appointed legislators from two to four. See N.D.C.C. § 54-52-\n03(1), (2) and (6); 2023 N.D. Sess. Laws ch. 47, § 41.\n\n II\n\n[¶6] The Board argues this Court should exercise original jurisdiction\nbecause its petition raises issues of \"paramount importance to the interests of\nthe State and the citizens of North Dakota[.]\" The Legislative Assembly agrees.\nArticle VI, § 2 of the North Dakota Constitution and N.D.C.C. § 27-02-04\nprovide original jurisdiction to the Court for writs of habeas corpus,\nmandamus, quo warranto, certiorari, and injunction. \"This authority is\ndiscretionary and cannot be invoked as a matter of right.\" State ex rel. Peterson\nv. Olson, 307 N.W.2d 528, 531 (N.D. 1981). \"The Supreme Court will determine\nfor itself, on an ad hoc basis, whether or not a particular case is within its\n\n 3\n original jurisdiction.\" Id. (citing State ex rel. Link v. Olson, 286 N.W.2d 262\n(N.D. 1979); State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D. 1978)).\n\n[¶7] \"It is well-settled that [this Court] invoke[s] our original jurisdiction only\nin cases publici juris and those affecting the sovereignty of the state, its\nfranchises and prerogatives, or the liberties of its people.\" N.D. Legis. Assembly\nv. Burgum, 2018 ND 189, ¶ 4, 916 N.W.2d 83 (cleaned up). \"The interests of the\nState must not be merely incidental but must be of primary importance, and\nthe public must have an interest or right which may be affected.\" Peterson, 307\nN.W.2d at 531. We have exercised original jurisdiction in cases where the\nseparation of coequal branches of government and their respective authority\nhave been challenged. See, e.g., Burgum, at ¶ 10; N.D. State Bd. of Higher\nEduc. v. Jaeger, 2012 ND 64, ¶ 13, 815 N.W.2d 215; Peterson, 307 N.W.2d at\n531; Link, 286 N.W.2d at 266-67.\n\n[¶8] In Burgum, we addressed the vetoing power of the governor and limits\nof the legislature's power over exercise of executive authority. 2018 ND 189,\n¶ 10. In exercising original jurisdiction, this Court determined, \"[t]hese issues\nconcern the balance of powers between the legislative and executive branches\n. . . . Because our constitution provides for a separation of legislative, executive,\nand judicial powers, actions which tend to undermine this separation are of\ngreat public concern.\" Id. In Peterson, this Court examined powers of certain\nexecutive branch agency heads, and the legislature's ability to appropriate\nfunds to pay for expanded duties imposed on the lieutenant governor. 307\nN.W.2d at 530-31. The primary reason for exercising original jurisdiction in\nPeterson was \"[b]ecause these challenges relate to the very foundation upon\nwhich the executive and legislative branches of government rest[.]\" Id. at 531.\n\n[¶9] Similar to Burgum and Peterson, the issues in this case involve the\nconstitutionality of the legislative branch's decision to place legislators on an\nexecutive agency governing board. These issues concern the balance of powers\nbetween the legislative and executive branches of government. Because the\nlegislature's actions could undermine that balance, the petition presents a\ncontroversy of \"significant public interest that justif[ies] exercise of our original\n\n 4\n jurisdiction.\" Burgum, 2018 ND 189, ¶ 10. We choose to exercise original\njurisdiction in this case.\n\n III\n\n[¶10] The Board argues S.B. 2015 violates N.D. Const. art. IV, § 13, by\nembracing more than one subject. The Board asserts S.B. 2015 is an\n\"appropriation bill,\" and S.B. 2015, § 41, which also reenacts N.D.C.C. § 54-52-\n03 by changing the NDPERS Board's composition, is not germane to the subject\nexpressed in the title of the bill. The Board argues section 41 should be declared\ninvalid. The Legislative Assembly disagrees with the Board's characterization\nof S.B. 2015. It argues S.B. 2015 is \"not merely an appropriations bill\" and is\ninstead a \"more comprehensive bill pertaining to State government\noperations.\" We agree with the Board and conclude S.B. 2015 was\nunconstitutionally enacted and is void.\n\n A\n\n[¶11] Whether legislation is unconstitutional is a question of law that is fully\nreviewable by this Court. Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505. We\ninterpret legislative enactments and constitutional provisions according to the\nsame principles of statutory construction. Sorum v. State, 2020 ND 175, ¶ 19,\n947 N.W.2d 382 (citing State ex rel. Heitkamp v. Hagerty, 1998 ND 122, ¶ 13,\n580 N.W.2d 139). Our framework for construing constitutional provisions is\nwell established:\n\n \"We aim to give effect to the intent and purpose of the people who\n adopted the constitutional provision. [Heitkamp, at ¶ 13]. We\n determine the intent and purpose of a constitutional provision, ‘if\n possible, from the language itself.' Kelsh v. Jaeger, 2002 ND 53,\n ¶ 7, 641 N.W.2d 100. ‘In interpreting clauses in a constitution we\n must presume that words have been employed in their natural and\n ordinary meaning.' Cardiff v. Bismarck Pub. Sch. Dist., 263\n N.W.2d 105, 107 (N.D. 1978).\n \"A constitution ‘must be construed in the light of\n contemporaneous history—of conditions existing at and prior to its\n adoption. By no other mode of construction can the intent of its\n\n 5\n framers be determined and their purpose given force and effect.'\n [Heitkamp, at ¶ 17] (quoting Ex parte Corliss, 16 N.D. 470, 481,\n 114 N.W. 962, 967 (1907)). Ultimately, our duty is to ‘reconcile\n statutes with the constitution when that can be done without doing\n violence to the language of either.' State ex rel. Rausch v. Amerada\n Petroleum Corp., 78 N.D. 247, 256, 49 N.W.2d 14, 20 (1951). Under\n N.D. Const. art. VI, § 4, we ‘shall not declare a legislative\n enactment unconstitutional unless at least four of the members of\n the court so decide.'\"\n\nSorum, at ¶¶ 19-20. When North Dakota adopts a statutory or constitutional\nprovision from another jurisdiction, we presume the language was adopted\nwith knowledge of the interpretation given to it by the source jurisdiction. Id.\nat ¶ 30 (citing State ex rel. McCue v. Blaisdell, 119 N.W. 360, 365 (N.D. 1909)).\n\n B\n\n[¶12] North Dakota Constitution art. IV, § 13 provides in relevant part:\n\n \"No law may be enacted except by a bill passed by both\n houses, and no bill may be amended on its passage through either\n house in a manner which changes its general subject matter. No\n bill may embrace more than one subject, which must be expressed\n in its title; but a law violating this provision is invalid only to the\n extent the subject is not so expressed.\"\n\nThis single subject requirement initially was adopted as section 61 of the 1889\nConstitution, which provided: \"No bill shall embrace more than one subject,\nwhich shall be expressed in its title, but a bill which violates this provision\nshall be invalidated thereby only as to so much thereof as shall not be so\nexpressed.\" The original \"one subject\" rule was renumbered in 1981 as section\n33, and the language was modernized to its current form by an amendment\napproved on November 6, 1984, effective December 1, 1986. See N.D.C.C. § 46-\n03-11.1; 1985 N.D. Sess. Laws ch. 707, § 2; 1983 N.D. Sess. Laws ch. 730, § 2.\nWe have found no authority suggesting the modifications from 1889 to the\npresent were intended to substantively change the single subject provision.\nNor have the parties to this proceeding cited us to authority or suggested the\n1980s modifications to the \"one-subject\" restriction were substantive.\n\n 6\n [¶13] When North Dakota adopted its original constitution in 1889, a large\nmajority of states had constitutional provisions limiting legislation to one\nsubject. See State ex rel. Goodsill v. Woodmanse, 46 N.W. 970, 971 (N.D. 1890);\nsee also State ex rel. Standish v. Nomland, 57 N.W. 85, 86 (N.D. 1893) (\"The\nequivalent of this provision is found in the constitution of nearly every state in\nthe Union, and few provisions have been oftener before the courts for\nconstruction.\"); J.G. Sutherland, Statutes and Statutory Construction 83-85\n(1891) (listing provisions). Beginning with our earliest decisions interpreting\nthe single subject rule, we have cited leading treatises and prominent decisions\nof other states to explain the purpose of the rule and its appropriate\napplication. See, e.g., Goodsill, at 971-72 (citing Thomas M. Cooley,\nConstitutional Limitations 176 (5th ed. 1883) to explain the purpose of the one-\nsubject rule is to prevent \"log-rolling\" and legislation not fully understood by\nmembers of the legislature or surprises to the public). In the early years\nfollowing statehood, we expressed agreement with the leading treatises by\nCooley and Sutherland, and the decisions of several states, that our\ninterpretation of this provision should not be rigid, but we should \"construe the\nconstitutional provision liberally.\" Standish, at 86 (invalidating act creating\nthe State Board of Auditors as violative of the single subject rule).\n\n[¶14] The two requirements in N.D. Const. art. IV, § 13 pertinent to this case\nare that \"[n]o bill may embrace more than one subject\" and that the subject of\nthe bill \"must be expressed in its title.\" The title and one subject requirements\nof section 13 are distinct, and they serve different purposes. See S.D. Educ.\nAssoc. v. Barnett, 582 N.W.2d 386, 393 (S.D. 1998) (interpreting South Dakota's\nnearly identical constitutional provision to \"contain two requirements\"); see\nalso Porten Sullivan Corp. v. State, 568 A.2d 1111, 1118 (Md. 1990) (explaining\nMaryland's similar provision has two objectives). Transparency is the reason\nfor requiring the subject of a bill to be expressed in its title. The title\nrequirement ensures the public is informed of the matters within a bill, and it\nprevents legislators from unknowingly passing legislation \"inserted in a bill of\nwhich the title gives no intimation.\" S.D. Educ. Assoc., at 393. \"It was designed\nto give all parties general notice of what the act contained so that the\nlegislators might protest against unsatisfactory measures and clauses, and the\n\n 7\n public could in turn protest to their representatives.\" State ex rel. Gaulke v.\nTurner, 164 N.W. 924, 928 (N.D. 1917).\n\n[¶15] The purpose of prohibiting multiple subjects is to curtail logrolling—\"[t]o\nprevent the combining into one bill of several diverse measures which have no\ncommon basis except, perhaps, their separate inability to receive a favorable\nvote on their own merits[.] S.D. Educ. Assoc., 582 N.W.2d at 393. The rule also\nfacilitates the balance of power between the executive and legislative branches\nby enabling \"the governor to consider each piece of legislation separately in\ndetermining whether to exercise veto power.\" Parrish v. Lamm, 758 P.2d 1356,\n1362 (Colo. 1988); see also N.D. Const. art. V, § 9 (limiting the governor's item\nveto power to appropriation bills); Link, 286 N.W.2d at 268 (stating bills not\nconcerning appropriation \"must be approved or disapproved in total\"). Under\nthe single subject rule, a bill may include matters \"naturally and reasonably\nconnected with the subject of the act as expressed in the title.\" Lapland v.\nStearns, 54 N.W.2d 748, 752, (N.D. 1952). We apply the single subject rule\nliberally to uphold legislation when its parts are reasonably germane to a\ncentral object or purpose. Great N. Ry. Co. v. Duncan, 176 N.W. 992, 996 (N.D.\n1919).\n\n[¶16] This Court has interpreted the constitution's single subject language as\nproviding the Legislative Assembly with considerable flexibility in defining the\nsubject of legislation and in determining what provisions are germane to that\none subject such that they may be included in a single bill. See, e.g., Eaton v.\nGuarantee Co. of N.D., 88 N.W. 1029 (N.D. 1902) (\"The section of the\nconstitution relied upon by counsel has uniformly and very properly received a\nliberal construction at the hands of the courts; and this court quite recently, as\nwell as in its earlier decisions, has applied this rule of construction.\"). When\ndetermining whether the subject of a bill is expressed in its title, we avoid strict\nand technical interpretation and construe the title liberally. Lapland, 54\nN.W.2d at 752. The title should be read considering the \"evident object and\npurpose\" of the legislation. State ex rel. Poole v. Peake, 120 N.W. 47, 49 (N.D.\n1909). \"It is sufficient if the title, either by express words or by necessary or\nreasonable implication from the meaning of its terms, includes the subject and\n\n 8\n purposes of the act . . . .\" Id. at 50. This Court has analyzed whether a person\nreading the words in a title \"will be apprised of and will naturally look for\nprovisions of the act\" relating to those words. Id. at 49. \"If the Legislature is\nfairly appraised of the general character of an enactment by the subject as\nexpressed in its title . . . then the requirement of the Constitution is complied\nwith.\" Gaulke, 164 N.W. at 928 (quoting State v. Cassidy, 22 Minn. 312, 324\n(1875)). \"The title of an act may and does limit and confine the content of the\nact itself, but the terms of the act cannot amplify and broaden the title.\"\nDornacker v. Strutz, 1 N.W.2d 614, 616 (N.D. 1941) (citing Olson v. Erickson,\n217 N.W. 841 (N.D. 1928); 1 Lewis Sutherland, Statutory Construction § 120\n(2d ed. 1904)). \"If this were not so the constitutional requirement would be\nwholly futile.\" Dornacker, at 616.\n\n[¶17] This Court has recognized five guides applicable to single subject\nchallenges to legislation:\n\n \"This section of the Constitution has been construed by this court\n in several cases. In those cases several principles have been laid\n down as guides in the construction of the section that should be\n applied in this case: (1) The law will not be declared\n unconstitutional on account of the defect unless it is clearly so. (2)\n The title should be liberally construed, and not in a strict or\n technical manner. (3) If the provisions of the act are germane to\n the expressions of the title, the law will be upheld. (4) The object\n to be gained by the enactment and enforcement of the\n constitutional provision is to advise the Legislature and the public\n of the substance of the act and to prevent surprise, fraud, and the\n enactment of laws upon incongruous and independent matters\n under one title. (5) The section of the Constitution is mandatory\n upon the Legislature and upon the courts.\"\n\nPowers Elevator Co. v. Pottner, 113 N.W. 703, 704 (N.D. 1907).\n\n[¶18] We have applied these guides in a manner that demonstrates legislation\nmay violate the single subject rule in more than one way. \"If it embrace two\nsubjects, and both are fully expressed in the title, still the provision is clearly\nviolated.\" Richards v. Stark County, 79 N.W. 863, 864 (N.D. 1899). If a bill\n\n 9\n embraces more than one subject and only one subject is expressed in the title,\nthe provisions not germane to the subject expressed in the title are invalid.\nDivet v. Richland County, 76 N.W. 993, 995 (N.D. 1898) (\"In the case at bar the\nbody of the act is broader than its title, and hence it must be annulled in so far\nas it transcends the title and is inconsistent therewith.\"). If an act \"embraces\nbut one subject, and that subject be not expressed in the title, the provision is\nequally violated.\" Richards, at 864. The provision expressly provides the\nremedy for a bill embracing multiple subjects, only one of which is expressed\nin the title: the provisions relating to the subject expressed in the title are\nvalid, and the unrelated matters are invalid and severed. Id.; People ex rel. City\nof Rochester v. Briggs, 50 N.Y. 553 (1872). The limits of the rule are illustrated\nwhere a bill embraces only one subject but has a title referencing that one\nsubject as well as one or more other subjects. Eaton, 88 N.W. at 1029.\n\n C\n\n[¶19] The Legislative Assembly argues: (1) \"this Court has construed the\nsingle subject rule loosely,\" citing cases reflecting a broad approach to what\nprovisions are \"reasonably germane\" to the subject of the legislation; (2) the\n\"broad subject\" of S.B. 2015 is \"a more comprehensive bill pertaining to State\ngovernment operations, and of NDPERS particularly;\" (3) the decisions of this\nCourt invalidating legislation as violative of the one-subject rule are\n\"antiquated and rare;\" and (4) the law has a \"presumption of constitutionality\"\nthat would require us to resolve any doubt as to the constitutionality of\nlegislation in favor of validity.\n\n 1\n\n[¶20] We agree with the Legislative Assembly that all statutes enjoy a\npresumption of constitutionality. State v. Holbach, 2009 ND 37, ¶ 23, 763\nN.W.2d 761. However, that begins rather than resolves the question before us.\n\n[¶21] Many of the Legislative Assembly's arguments can be read to claim the\nsingle subject limitation has no current viability as a constitutional doctrine or\nas a basis for the judiciary acting as a check on the legislative branch. We reject\nthose arguments as incomplete. First, N.D. Const. art. IV, § 13 is a valid and\n\n 10\n active part of our fundamental law, the Constitution. Second, construing S.B.\n2015 consistent with the guiding principles first announced in Powers Elevator\nCo. as described above, and acting within the judicial constraints described by\nour sister states, does not mean no judicially enforceable limits exist for the\nbreadth of a legislative subject or whether a provision is germane to that\nsubject. As explained by the California Supreme Court:\n\n \"For example, the rule obviously forbids joining disparate\n provisions which appear germane only to topics of excessive\n generality such as ‘government' or ‘public welfare.' . . . subjects of\n ‘excessive generality' would violate the purpose and intent of the\n single subject rule.\n\n ....\n\n \"‘Fiscal affairs' as the subject of Bill 1379 and ‘statutory\n adjustments' to the budget as its object suffer from the same defect.\n They are too broad in scope if, as petitioners appear to claim, they\n encompass any substantive measure which has an effect on the\n budget. The number and scope of topics germane to ‘fiscal affairs'\n in this sense is virtually unlimited. If petitioners' position were\n accepted, a substantial portion of the many thousand statutes\n adopted during each legislative session could be included in a\n single measure even though their provisions had no relationship\n to one another or to any single object except that they would have\n some effect on the state's expenditures as reflected in the budget\n bill. This would effectively read the single subject rule out of the\n Constitution.\"\n\nHarbor v. Deukmejian, 742 P.2d 1290, 1303-04 (Cal. 1987).\n\n[¶22] The Legislative Assembly cites various cases where this Court has\nrejected challenges to legislation under the single subject rule, and it asserts\nthe cases where we have invalidated legislation \"appear to be antiquated and\nrare.\" It may be true we have not had recent occasion to address N.D. Const.\nart. IV, § 13, but that is no justification for us not following its mandate. See\nPorten Sullivan Corp., 568 A.2d at 1118 (stating that despite history of\ndeference to legislative branch, the single subject provision is \"still a part of\n\n 11\n our Constitution\" and as such \"it is not to be treated as a dead letter\"). Many\njurisdictions have similar if not identical provisions in their constitutions that\nhave \"resulted in the invalidation of substantial and important legislation.\"\nMichael D. Gilbert, Single Subject Rules & the Legislative Process, 67 U. Pitt.\nL. Rev. 803, 806 (2006). This issue is not a matter of antiquity. See, e.g., Douglas\nv. Cox Retirement Props., Inc., 302 P.3d 789, 794 (Okla. 2013) (holding\nlegislation violated single subject rule of state constitution); People v. Olender,\n854 N.E.2d 593, 605 (Ill. 2005) (same); St. Louis Health Care Network v. State,\n968 S.W.2d 145, 149 (Mo. 1998) (same).\n\n 2\n\n[¶23] The remaining question is whether the title or the body of S.B. 2015\nembraces more than \"one subject.\" The Legislative Assembly argues that over\n20 of S.B. 2015's 68 sections relate to NDPERS, and asserts that the subject of\nthe bill as expressed by its title is \"State government operations, and of\nNDPERS particularly.\"\n\n[¶24] Senate Bill 2015 in its original form was introduced on January 3, 2023,\nhad a title containing 35 words, and related only to the Office of Management\nand Budget:\n\n[¶25] The Senate amended S.B. 2015 on February 21, 2023, expanding its title\nto 113 words addressing a number of subjects.\n\n 12\n The first engrossment with House amendments passed the House on April 21,\n2023, when the title contained 134 words addressing a number of subjects:\n\nThe title of the first engrossment with conference committee amendments\ncontained 675 words and included substantially more appropriations and areas\nof coverage than any of the prior versions.\n\n[¶26] The final version of S.B. 2015 was passed by both bodies on April 29,\n2023. The title of the bill consists of one sentence comprised of 630 words filling\na single-spaced page:\n\n 13\n The length or difficulty in reading the title does not alone tell us whether more\nthan one subject is expressed. But the length and variety of covered topics\nnecessarily informs us whether the title or the bill embraces more than one\nsubject.\n\n[¶27] Inspection of other legislation during the same session included S.B.\n2164 and H.B. 1321. Those were stand-alone bills directly addressing the\nNDPERS Board related topics in this proceeding. The title of S.B. 2164 was, \"A\nBILL for an Act to amend and reenact section 54-52-03 of the North Dakota\nCentury Code, relating to retirement board membership; to provide an\neffective date; and to declare an emergency.\" That single subject legislation was\n\n 14\n defeated by the Senate on April 24, 2023. The original title of H.B. 1321 was,\n\"A BILL for an Act to create and enact section 54-52.1-05.2 of the North Dakota\nCentury Code, relating to public employees retirement system contracts for\nhealth benefits coverage; and to amend and reenact sections 54-52-03, 54-52.1-\n04, and 54-52.1-05 of the North Dakota Century Code, relating to retirement\nboard membership and public employees retirement system contracts for\nhealth benefits coverage.\" That bill was defeated by the Senate on March 28,\n2023.\n\n 3\n\n[¶28] The Legislative Assembly argues we should construe the title liberally\nas expressing the subject of \"state government operations.\" Doing so would\neviscerate our single subject rule. The topic of state government operations is\na subject of \"excessive generality\" that \"would violate the purpose and intent\nof the single subject rule.\" Harbor, 742 P.2d at 1303. Nor are we even convinced\na liberal reading of the title describes that impermissibly broad topic. After\nreading the bill's title, we conclude it does not fairly apprise a reader of\nanything other than the fact it is a general appropriations bill that also deals\nwith an assortment of unrelated laws. Contrary to assertions by the Legislative\nAssembly, the title of S.B. 2015 as passed begins by stating it is an act to\n\"provide an appropriation for defraying the expenses\" of various state\ngovernment branches, divisions, departments, and agencies. The title explains\nthe bill includes a series of appropriations to the governor, the legislative\nassembly, the judicial branch, and several executive agencies. It then lists a\nlong series of statutory amendments by reference to the North Dakota Century\nCode sections amended. The title also covers \"loans from the coal development\ntrust fund, evidence of indebtedness, distribution of illegal drugs, legacy fund\nearnings, the flexible transportation fund, the capitol grounds planning\ncommission spending limit, the state leave sharing program, capitol grounds\nrent collections, the retirement board, the public employees retirement system\nretirement plan, the public employees retirement system plan for state peace\nofficers, the clean sustainable energy authority duties, and joint water resource\nboards.\"\n\n 15\n [¶29] Like its title, the body of S.B. 2015 embraces multiple distinct subjects\nextraneous and not germane to even the impermissibly broad topic of \"state\ngovernment operations.\" Senate Bill 2015 contains some provisions that might\nbroadly be described as relating to \"state government operations.\" It\nappropriates funds and also contains provisions concerning, for example,\nbaseline school funding and aid. One provision deals with projects under the\nflexible transportation fund and another concerns projects undertaken by the\nCapitol Grounds Planning Commission. The connection to \"state government\noperations\" of other provisions ranges from attenuated to nonexistent. The bill\nappropriates $1,792,450 for \"Prairie public broadcasting grants.\" It also\ncontains a section to create a \"fertilizer development incentive program,\" and\nit provides requirements for a fertilizer production facility, including\nownership of the facility, its development, and specifically that operations in\nthe facility must be by \"hydrogen produced by the electrolysis of water.\" S.B.\n2015, § 51. Another provides \"a rural senior center infrastructure grant to an\norganization in Wells County located in a city with a population between 1,500\nand 1,800 according to the 2020 census.\" Id. at § 18. Section 26 relates to coal\ndevelopment trust fund loans. Section 65 requires a legislative study of \"the\nstate's guardianship programs.\" Another section with no conceivable relation\nto \"state government operations\" amends the Uniform Controlled Substances\nAct, N.D.C.C. ch. 19-03.1, by changing language relating to delivery of\ncontrolled substances resulting in death. S.B. 2015, § 29.\n\n[¶30] Other jurisdictions have struck down substantive legislation attached to\ngeneral appropriations bills as violating constitutional one-subject provisions.\nIn South Dakota Education Association, the South Dakota Supreme Court\nstruck down legislation included in an appropriations bill that attempted to\nchange educators' collective bargaining rights. 582 N.W.2d at 393. The court\nreasoned bargaining rights do not \"relate directly\" to the subject of\nappropriations or \"have a natural connection to that subject.\" Id. In Planned\nParenthood of St. Louis Region v. Department of Social Services, the Missouri\nSupreme Court invalidated a provision in an appropriations bill that\nprohibited the expenditure of funds on abortion facilities. 602 S.W.3d 201, 211\n(Mo. 2020). The court explained \"any bill that purports to combine\n\n 16\n appropriations with the enactment or amendment of general or substantive\nlaw necessarily contains more than one subject\" in violation of Missouri's\nconstitutional single subject provision. Id. at 207. The Washington Supreme\nCourt struck down \"a law which could not pass on its own merit\" that was\n\"slipped\" into an appropriations bill. Flanders v. Morris, 558 P.2d 769, 772\n(Wash. 1977). That court explained: \"It is obvious why a legislator would\nhesitate to hold up the funding of the entire state government in order to\nprevent the enactment of a certain provision, even though he would have voted\nagainst it if it had been presented as independent legislation.\" Id.\n\n[¶31] Senate Bill 2015 was introduced by the Appropriations Committee and\noriginally contained only provisions directly related to the Office of\nManagement and Budget. After amendments by each legislative body, a\nconference committee suggested additional amendments to the bill by adding\nvarious provisions, including section 41 dealing with the NDPERS board. The\nNDPERS related amendments were essentially the provisions that failed to\npass as standalone legislation. See H.B. 1321 and S.B. 2164, 68th Leg.\nAssembly (N.D. 2023). During the Senate floor debate on final adoption of S.B.\n2015, one legislator lamented the resurrection of the NDPERS Board bills as\npart of the OMB bill. He said the combined bill went against everything he\nbelieved relating to separation of powers, and that the final bill was \"a large\nmistake.\" Statement of Senator Dever, Senate Floor Session on S.B. 2015, 68th\nLeg. Assembly, April 29, 2023.\n\n 4\n\n[¶32] We hold both the title and substance of S.B. 2015 violate N.D. Const. art.\nIV, § 13. The title of S.B. 2015 does not contain language suggesting it is\nanything other than an appropriations bill with other miscellaneous\nprovisions. The title of S.B. 2015 violates N.D. Const. art. IV, § 13 because it\nexpressed more than one subject. As to the bill's substance, S.B. 2015, § 41\namends a law concerning the number of individuals who may sit on the\nNDPERS Board, their qualifications, and how they are appointed. Section 41\ndoes not relate to the many other provisions in the bill. The process for\nappointing members to the NDPERS Board and the Board's specific\n\n 17\n composition is not germane to appropriating funds for state government\noperations. Like its title, the body of S.B. 2015 embraces more than one subject\nin contravention of N.D. Const. art. IV, § 13. This legislation was originally an\nappropriations bill. The non-appropriations additions later added to the bill by\nthe House may well violate our constitutional mandate that \"no bill may be\namended on its passage through either house a manner which changes its\ngeneral subject matter.\" See N.D. Const. art. IV, § 13. That potential violation\naside, the non-germane changes made by both legislative bodies require the\nconclusion S.B. 2015 is unconstitutional.\n\n IV\n\n[¶33] Because S.B. 2015 was adopted in violation of N.D. Const. art. IV, § 13,\nwe must consider the effect of the violation.\n\n[¶34] Article IV, § 13 provides: \"No bill may embrace more than one subject,\nwhich must be expressed in its title; but a law violating this provision is invalid\nonly to the extent the subject is not so expressed.\" See also Fitzmaurice v.\nWillis, 127 N.W. 95, 98 (N.D. 1910) (invaliding a portion of a bill under the\nsingle subject clause and leaving the remainder \"still in force and effect\").\n\n[¶35] In this case, the title and the substance of the bill's body match. Both\nembrace more than one subject. Therefore, N.D. Const. art. IV, § 13, does not\napply to limit invalidity \"only to the extent the subject is not so expressed.\"\nRather, S.B. 2015 represents the clearest violation of the single subject rule\nbecause the act embraces multiple subjects, all of which are expressed in the\ntitle. In such a situation, \"the whole act is void.\" J.G. Sutherland, Statutory\nConstruction 121 (1891). When legislation includes multiple subjects in both\nthe body and the title, the whole act is invalid because its formation was\ncontrary to the constitutional single subject prohibition.\n\n[¶36] Even if this Court was inclined to attempt to determine what legislation\nwould have resulted without the violation of the constitutional single subject\nlimitation, our mere attempt would inject the Court into the legislature's\ndomain. Cooley's Treatise emphatically stated: \"All the cases recognize this\n\n 18\n doctrine.\" Thomas M. Cooley, Constitutional Limitations 177 n.2 (6th ed. 1890).\nThe reason derives from the distinct role of the court: \"if the title to the act\nactually indicates, and the act itself actually embraces, two distinct objects,\nwhen the constitution says it shall embrace but one, the whole act must be\ntreated as void, from the manifest impossibility in the court choosing between\nthe two, and holding the act valid as to the one and void as to the other. Id.\n(citing City of Antonio v. Gould, 34 Tex. 49 (1870); State v. McCracken, 42 Tex.\n383 (1874)).\n\n[¶37] Article IV, § 13, N.D. Const., limits the Legislative Assembly's power to\ncraft legislation. The provision also directs this Court's disposition when a\nviolation of the section occurs. Standish, 57 N.W. at 86 (\"This court should be\ncareful to destroy no legislation sanctioned by the lawmaking branch of the\nstate government unless such legislation be a clear violation of the\nconstitutional requirement. But we have no duty higher or more sacred than\nis the duty to preserve in all its integrity every provision in the fundamental\nlaw of the state.\"). Declaring all of S.B. 2015 invalid is necessary because\ncreation of the act violated a requirement imposed by the Constitution. It is\nthe Court's duty to uphold the clear requirements of the Constitution when\nthey are violated, whether inadvertently or not. As discussed above and below,\nthis is in accord with our decisions since 1889, and with decisions of other\njurisdictions applying a single subject rule to legislation similar to S.B. 2015.\n\n[¶38] In Arizona School Boards Association v. State, the Association\nchallenged a bill entitled \"An Act Amending [Statutes Listed by Number];\nAppropriating Monies; Relating to State Budget Procedures.\" 501 P.3d 731, 735\n(Ariz. 2022). The act included sections relating to election procedures, COVID-\n19 mitigation, dog racing permits, the definition of a \"newspaper,\" and\ninvestigation of social media platforms. Id. The Arizona single subject rule 1 has\nbeen interpreted to prevent \"log-rolling\" and is \"read liberally so as not to\n\n1 \"Every act shall embrace but one subject and matters properly connected therewith, which subject\n\nshall be expressed in the title; but if any subject shall be embraced in an act which shall not be\nexpressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the\ntitle.\" Ariz. Const. art. IV, pt. 2, § 13.\n\n 19\n impede or embarrass the legislature but not so ‘foolishly liberal' as to render\nthe constitutional requirements nugatory.\" Id. at 739. \"[C]ompliance with the\nrule requires that all matters treated should fall under some one general idea,\nbe so connected with or related to each other, either logically or in popular\nunderstanding, as to be parts of, or germane to, one general subject.\" Id.\n(cleaned up). The State argued the bill's various topics were all within a broad\nconception of the title's reference to \"budget procedures.\" Id. at 740. The court\nconcluded the bill's various sections did not fall under \"one general idea\" and\nwere not germane to one general subject. Id. \"An act that violates the single\nsubject rule is entirely void because no mechanism is available for courts to\ndiscern the primary subject of the act.\" Id.\n\n[¶39] In the course of upholding a capital projects bill against a single subject\nchallenge, the Illinois Supreme Court explained why a single subject challenge\nis directed toward the legislation as a whole: \"It is generally held that when an\nact contains two or more subjects in violation of the single subject rule, the\nreviewing court cannot choose which subject is the ‘right' one and eliminate the\nother. Such a determination would ‘inject[] the courts more deeply than they\nshould be into the legislative process.'\" Wirtz v. Quinn, 953 N.E.2d 899, 920\n(Ill. 2011) (quoting Litchfield Elementary Sch. Dist. No. 79 v. Babbitt, 608 P.2d\n792, 804 (Ariz. Ct. App. 1980)). The court in Wirtz concluded no violation of the\nsingle subject rule occurred because all provisions of the challenged legislation\nrelated to capital projects and financing for those projects. Id. at 913. The court\ndistinguished three recent decisions where it nullified entire bills for violating\nthe single subject rule. In the first case, the challenged legislation amended\nthree criminal statutes, several tax acts, a forest preserve act, a charitable\ngaming act, and a communicable disease prevention act. Id. at 909. The court\nrejected the State's argument that the single subject of that legislation was\n\"governmental regulation\" or \"revenue,\" reasoning the strained connection\nbetween the bill and those broad categories would \"render the single subject\nclause a nullity.\" Id. (quoting Olender, 854 N.E.2d at 604). The court\ndistinguished a second case where it rejected the State's argument that the\nsingle subject of \"governmental matters\" encompassed a bill containing \"at\nleast two unrelated subjects\" of criminal justice and hospital liens. Wirtz, at\n\n 20\n 909 (quoting People v. Reedy, 708 N.E.2d 1114, 1118 (Ill. 1999)). The court\ndistinguished a third case where it declared unconstitutional a 200-page bill\n\"encompassing such diverse topics as child sex offenders, employer\neavesdropping, and environmental impact fees imposed on the sale of fuel.\"\nWirtz, at 909. In that case, the court again rejected the State's assertion that\nthe broad subject of the bill was \"public safety,\" concluding that permitting\nreliance on \"a tortured connection to a vague notion of public safety\" would\n\"eliminat[e] the single subject rule as a meaningful constitutional check.\" Id.\n(quoting Johnson v. Edgar, 680 N.E.2d 1372, 1381 (Ill. 1997)); see also Cottrell\nv. Faubus, 347 S.W.2d 52, 54 (Ark. 1961) (declaring unconstitutional in its\nentirety an act containing \"more than a score of distinct appropriations for\nmiscellaneous and disconnected subjects\").\n\n[¶40] In LS Power Midcontinent, LLC v. State, 988 N.W.2d 316, 325 (Iowa\n2023), the court considered a single subject 2 challenge to the final\nappropriations bill of the 2020 session. The issue before the court was the\nlikelihood of success on the merits of the single subject challenge for purposes\nof a temporary injunction. Id. at 334. In analyzing the likelihood of success on\nthe single subject challenge, the court noted the provision \"primarily prevents\nlogrolling\" and explained:\n\n \"We are skeptical that any single subject could encompass the\n breathtaking sweep of matters included in H.F. 2643. The title\n itself gives us pause on single-subject grounds: ‘An Act relating to\n state and local finances by making appropriations, providing for\n legal and regulatory responsibilities, providing for other properly\n related matters, and including effective date and retroactive\n applicability provisions.'\n \"LSP argues the subjects are so unrelated the only way to fit\n them within a single, common subject is to assert they are all\n ‘laws.' It observes the bill contained a medley of appropriations\n\n2 \"Every act shall embrace but one subject, and matters properly connected therewith; which subject\n\nshall be expressed in the title. But if any subject shall be embraced in an act which shall not be\nexpressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the\ntitle.\" Iowa Const., art. III, § 29.\n\n 21\n provisions . . . corrective provisions . . . and grants of substantive\n rights . . . .\"\n\nId. at 336. The court granted a temporary injunction staying enforcement of\nthe provision of the act challenged by LS Power Midcontinent.\n\n[¶41] In reaching the conclusion that all of S.B. 2015 must be invalidated, we\nare mindful of some decisions by other state courts that have not invalidated\nan entire bill following a conclusion there was a single subject violation. The\nOklahoma Supreme Court has more than once issued prospective-only\ndecisions. See Fent v. State ex rel. Office of State Fin., 184 P.3d 467, 477 (Okla.\n2008) (prospective only); Campbell v. White, 856 P.2d 255, 260 (Okla. 1993)\n(prospective ruling only).\n\n[¶42] The Iowa Supreme Court holds a single subject rule violation \"generally\nrequires that an act incorporating more than one subject must be wholly\ninvalidated,\" but explains the \"rule is inapplicable where one of the subjects of\nthe act is its main focus, while another is only secondary.\" W. Int'l v.\nKirkpatrick, 396 N.W.2d 359, 366 (Iowa 1986). \"When we can ascertain which\nof the two provisions the legislature would have enacted, we can uphold the\nlegislative intent by striking only the secondary subject.\" Id. (concluding only\nfour sections of a bill not related to \"the focus of the Act\" were invalid under\nthe single subject rule); see also S.D. Educ. Assoc., 582 N.W.2d at 394 (severing\nonly the challenged provision after determining \"the Legislature would have\nintended the appropriation for salary increases for Regents' employees to take\neffect even without the unconstitutional clause in section 31 on collective\nbargaining\").\n\n[¶43] The Pennsylvania Supreme Court has declared legislation invalid due to\na single subject rule violation, but ordered a delayed effective date for its\ndecision:\n\n \"[O]ur Court must examine the various subjects contained within\n a legislative enactment and determine whether they have a nexus\n to a common purpose. Stated another way, our task is to ascertain\n\n 22\n whether the various components of the enactment are part of ‘a\n unifying scheme to accomplish a single purpose.'\n\n ....\n\n \"[U]pon considered reflection, we cannot discern any other\n common nexus for the myriad disparate provisions of Act 152,\n inasmuch as we can see no reasonable basis under which\n deficiency judgment procedures, asbestos statutes of limitations,\n county police jurisdiction, and sexual offender registration\n requirements act together as ‘a unifying scheme to accomplish a\n single purpose.'\n\n ....\n\n \"However, since we find merit in the General Assembly's\n suggestion that our decision abrogating the entirety of Act 152 will\n have a significant impact on a wide variety of individuals and\n entities which have ordered their affairs in reliance on its\n provisions, we will stay our decision, as we have done under\n similar circumstances, in order to provide a reasonable amount of\n time for the General Assembly to consider appropriate remedial\n measures, or to allow for a smooth transition period.\"\n\nCommonwealth v. Neiman, 84 A.3d 603, 612-13, 616 (Pa. 2013).\n\n[¶44] Invalidation of S.B. 2015 as a whole is required here because we do not\nknow which provisions were primary and which were secondary, or whether\nthe bill would have been enacted absent the presence of any of the many\nsections. Therefore, we cannot follow the Iowa Supreme Court's path in\nWestern International, 396 N.W.2d at 366. While procedural steps may be\navailable for use by a party to delay the effective date or our ruling, see\nN.D.R.App.P. 41(d) (staying the mandate), we have not been asked by a party\nto forestall the impact of our decision, as was done by the Pennsylvania\nSupreme Court in Neiman, 84 A.3d at 616. Rather, like Iowa's \"general rule,\"\nand like the results in Arizona and the three Illinois cases discussed above,\nthis Court's duty is to pass on the constitutional question of S.B. 2015's validity\n\n 23\n without intrusion on the legislative process beyond determining its\nconstitutionality.\n\n V\n\n[¶45] We conclude S.B. 2015 violates N.D. Const. art. IV, § 13 and is void. The\nBoard's petition seeking declaratory relief and a writ of injunction prohibiting\nexecution or enforcement of S.B. 2015 is granted. The Board's motion to\nsupplement the record is denied. Because the constitutional \"single subject\"\nrule is dispositive, it is unnecessary to address the Board's remaining claims.\n\n[¶46] Daniel J. Crothers\n Jerod E. Tufte\n\nJensen, Chief Justice, concurring specially.\n\n[¶47] I concur in the majority opinion concluding the legislation was enacted\nin violation of the single subject rule of article IV, § 13 of the North Dakota\nConstitution. The majority reaches this conclusion without reaching an opinion\non whether the legislation, but for being enacted in violation of the single\nsubject rule, would otherwise have been a permissible action of the legislature.\nBecause I believe the action would otherwise have been permissible, the\ninvalidation of the legislation has far-reaching consequences, and in light of\nour prior expressed deference to legislative action, I write separately to express\nmy opinion that our judgment in this case should be stayed for a period of thirty\ndays. Ordinarily, a mandate must be issued twenty-one days after the entry of\njudgment, which is issued simultaneously with this Court's opinion.\nN.D.R.App.P. 41(b). Rule 41(b) provides this Court with discretion to stay its\nmandate following the issuance of an opinion. A stay of thirty days would allow\nthe legislature an opportunity to call a special session and enact all of the\neffected legislation in a manner consistent with the single subject rule of article\nIV, § 13 of the Constitution.\n\n[¶48] The Board of Trustees of the North Dakota Public Employees Retirement\nSystem (\"Board\") petitions this Court seeking declaratory relief and a writ of\n\n 24\n injunction, challenging N.D.C.C. § 54-52-03 and section 41 of S.B. 2015 (2023),\nenacted by the 68th Legislative Assembly, both of which provide for the\nappointment of sitting legislators to the Board. The Board asserts legislators\nholding office on the Board violates article IV, § 6 of the North Dakota\nConstitution; violates the separation of powers between coequal branches of\ngovernment and encroaches upon the powers of the executive branch in\nviolation of articles IV, V, and XI of the Constitution; violates the common-law\nrule against incompatibility of office; and violates the single subject rule of\narticle IV, § 13 of the Constitution. As noted above, the majority concludes the\nlegislation violates article IV, § 13 of the Constitution, but does not exercise its\nauthority to stay the mandate pursuant to N.D.R.App.P. 41(b).\n\n[¶49] The majority opinion has ramifications far beyond the issue raised by the\nBoard, and invalidates all of the legislation included within S.B. 2015 (2023).\nThe legislation includes appropriations to several branches, agencies, and\noffices including the office of management and budget, the office of the\ngovernor, legislative assembly, adjutant general, legislative council,\ndepartment of environmental quality, department of labor and human rights,\ndepartment of public instruction, department of commerce, department of\nhealth and human services, department of career and technical education, and\nthe judicial branch. The legislation also creates and enacts new laws, and\nreenacts existing laws—most of which pertain to state government operations.\n\n[¶50] If we reached the substantive arguments of the Board, I would conclude\nN.D.C.C. § 54-52-03 and section 41 of S.B. 2015, which provide for the\nappointment of four sitting legislators to the Board, do not violate article IV, §\n6 of the North Dakota Constitution; articles IV, V, and XI of the Constitution,\nthe common-law rule against incompatibility of office, or the separation of\npowers doctrine. Because of the far-reaching impact of invalidating the entire\nbill, and the likelihood the legislation would survive the other challenges raised\nby NDPERS (assuming each individual subject commands a majority), I would\nstay the mandate in this case for a period of thirty days pursuant to\nN.D.R.App.P. 41(b).\n\n 25\n I\n\n[¶51] On June 1, 2023, the Board petitioned this Court to exercise its original\njurisdiction under N.D.C.C. § 27-02-04, seeking declaratory relief under\nN.D.C.C. § 32-23-01 and a writ of injunction under N.D.C.C. § 32-06-01. The\nBoard filed a motion for a preliminary injunction before the hearing, which this\nCourt denied.\n\n[¶52] Specifically, the Board seeks a declaration that section 41 of S.B. 2015 is\nvoid ab initio and N.D.C.C. § 54-52-03 is invalid, both of which provide for\nappointment of sitting legislators to the Board, because they violate article IV,\n§ 6 of the North Dakota Constitution, the separation of powers under articles\nIV, V, and XI of the Constitution, and the common-law doctrine of\nincompatibility. The Board also seeks a declaration that S.B. 2015 is invalid\nbecause the joinder of an appropriation bill with an amendment to the Board's\nstructure is not germane, constitutes \"logrolling,\" and is in violation of article\nIV, § 13 of the Constitution.\n\n[¶53] The Board requests a writ of injunction preventing the appointment of\nadditional legislators and the continued service of sitting legislators on the\nBoard. The Board argues irreparable harm results when legislators—who have\na duty to their constituents and the state at large—must also hold a fiduciary\nduty to advance the interests of PERS members and beneficiaries. The Board\nargues these dual duties are inherently contradictory.\n\n[¶54] Section 54-52-03, N.D.C.C., after the recent amendments, provides:\n\n 1. A state agency is hereby created to constitute the governing\n authority of the system to consist of a board of eleven individuals\n known as the retirement board. No more than one elected member\n of the board may be in the employ of a single department,\n institution, or agency of the state or in the employ of a political\n subdivision. An employee of the public employees retirement\n system or the state retirement and investment office may not serve\n on the board.\n\n 26\n 2. Four members of the legislative assembly must be appointed to\nserve on the board. The majority leader of the house of\nrepresentatives shall appoint two members of the house of\nrepresentatives and the majority leader of the senate shall appoint\ntwo members of the senate. The members appointed under this\nsubsection shall serve a term of two years.\n\n3. Four members of the board must be appointed by the governor\nto serve a term of five years. Each appointee under this subsection\nmust be a North Dakota citizen who is not a state or political\nsubdivision employee and who is familiar with retirement and\nemployee benefit plans. The governor shall appoint one citizen\nmember to serve as chairman of the board.\n\n4. Three board members must be elected by and from among the\nactive participating members, members of the retirement plan\nestablished under chapter 54-52.6, members of the retirement plan\nestablished under chapter 39-03.1, and members of the job service\nNorth Dakota retirement plan. Employees who have terminated\ntheir employment for whatever reason are not eligible to serve as\nelected members of the board under this subsection. Board\nmembers must be elected to a five-year term pursuant to an\nelection called by the board. Notice of board elections must be given\nto all active participating members. The time spent in performing\nduties as a board member may not be charged against any\nemployee's accumulated annual or any other type of leave.\n\n5. The members of the board are entitled to receive one hundred\nforty-eight dollars per day compensation and necessary mileage\nand travel expenses as provided in sections 44-08-04 and 54-06-09.\nThis is in addition to any other pay or allowance due the chairman\nor a member, plus an allowance for expenses they may incur\nthrough service on the board.\n\n6. A board member shall serve until the board member's successor\nqualifies. Each board member is entitled to one vote, and six of the\neleven board members constitute a quorum. Six votes are\nnecessary for resolution or action by the board at any meeting.\n\n 27\n (Emphasis added.) Section 41 of S.B. 2015 amended N.D.C.C. § 54-52-03,\nincreasing the number of Board members from nine to eleven and changing\nthe number of appointed legislators from two legislators to four legislators. See\nN.D.C.C. § 54-52-03(1), (2), and (6); 2023 N.D. Sess. Laws ch. 47, § 41.\n\n II\n\n[¶55] The Board argues legislators holding the office of Board member violates\narticle IV, § 6 of the North Dakota Constitution. This section provides:\n\n While serving in the legislative assembly, no member may hold any\n full-time appointive state office established by this constitution or\n designated by law. During the term for which elected, no member\n of the legislative assembly may be appointed to any full-time office\n that has been created by the legislative assembly. During the term\n for which elected, no member of the legislative assembly may be\n appointed to any full-time office for which the legislative assembly\n has increased the compensation in an amount greater than the\n general rate of increase provided to full-time state employees.\n\nN.D. Const. art. IV, § 6 (emphasis added). The Board argues its members are\nappointed state officers and their position meets the definition for \"full-time.\"\nThe Legislative Assembly asserts members are compensated on a per diem\nbasis, serve only once per month, and during the last fiscal year, were\nreimbursed by the State only 12 times. The Legislative Assembly also asserts\nthe meaning of \"full-time\" is approximately 40 hours of work per week on a\nsustained basis.\n\n[¶56] This Court uses the following framework when interpreting\nconstitutional provisions:\n\n In interpreting constitutional provisions, we apply general\n principles of statutory construction. Our overriding objective is to\n give effect to the intent and purpose of the people adopting the\n constitutional provision. The intent and purpose of constitutional\n provisions are to be determined, if possible, from the language\n itself. In construing constitutional provisions, we ascribe to the\n\n 28\n words the meaning the framers understood the provisions to have\n when adopted.\n\nWrigley v. Romanick, 2023 ND 50, ¶ 17, 988 N.W.2d 231 (cleaned up).\nConstitutional provisions are generally given their plain, ordinary, and\ncommonly understood meaning. Thompson v. Jaeger, 2010 ND 174, ¶ 7, 788\nN.W.2d 586. The North Dakota Constitution must also be read in the light of\nhistory. Wrigley, at ¶ 17.\n\n[¶57] In 1984, the people of North Dakota amended the provision at issue,\npresently found at N.D. Const. art. IV, § 6, replacing and revising a provision\nthat had used the phrase \"[n]o member . . . [shall] be appointed or elected to\nany civil office,\" with the phrase \"no member may hold any full-time appointive\nstate office[.]\" Compare N.D. Const. art. IV, § 17 (1981), with 1984 amendments\nto N.D. Const. art. IV (H.C.R. 3028, 1985 N.D. Sess. Laws ch. 706, § 6)\n(emphasis added). In 2012, article IV, § 6 was again amended to add, \"During\nthe term for which elected, no member of the legislative assembly may be\nappointed to any full-time office for which the legislative assembly has\nincreased the compensation in an amount greater than the general rate of\nincrease provided to full-time state employees.\" See H.C.R. 3047, 2013 N.D.\nSess. Laws ch. 515, § 1 (emphasis added).\n\n[¶58] This Court interpreted the phrase \"civil office\" in Baird v. Lefor, 201 N.W.\n997, 999 (N.D. 1924). In Baird, this Court held that a state senator was allowed\nto hold the title of receiver during judicial liquidation proceedings because in\nthe senator's role as a court-appointed receiver, he exercised \"none of the\npowers of civil government.\" Id. That phrase is juxtaposed against the newer\nphrase in N.D. Const. art. IV, § 6, \"full-time appointive state office[,]\" and when\ncompared means the new phrase prohibits the exercising of \"full-time\" powers\nof civil government. The new phrase permits legislators to hold non-full-time\noffices that exercise some limited powers of civil government. A plain reading\nof the phrase provides for this interpretation as does the historical context of\nthe change. See State v. Hagerty, 1998 ND 122, ¶ 17, 580 N.W.2d 139 (when\ninterpreting constitutional amendments, this Court \"look[s] first to the\nhistorical context\" including \"what it displaced\").\n\n 29\n [¶59] The compensation scheme provided in N.D.C.C. § 54-52-03(5) also gives\ncontext to the meaning of \"full-time.\" It provides that Board members are paid\non a per diem basis. This coupled with evidence that Board members sought\nreimbursement only 12 times in 2022, and that Board meetings occur only once\nper month supports a finding that legislators serving as members on the Board\nare not \"full-time.\" An ordinary and common understanding of the term \"full-\ntime\" requires more than per diem compensation and a once-monthly time\ncommitment. The Board argues its members serve on a regular and continuing\nbasis as managing fiduciaries of NDPERS. I determine this argument\nunpersuasive because article IV, § 6 of the North Dakota Constitution does not\nprohibit service of legislators to appointive state offices who serve regularly or\ncontinuously, but rather prohibits service in appointive state offices that are\n\"full-time.\" If we were to reach this issue, I would conclude legislative\nmembership on the Board is not a \"full-time appointive state office\" and a\nlegislator may be appointed to the Board without violating article IV, § 6.\n\n III\n\n[¶60] The Board argues a statute permitting a legislator to simultaneously\nhold the office of Board member violates the tenets of separation of powers\nbetween coequal branches of government, and unlawfully encroaches upon the\nduties and powers of an executive branch agency in violation of articles IV, V,\nand XI of the North Dakota Constitution. The Legislative Assembly responds\nthat neither N.D.C.C. § 54-52-03 nor section 41 of S.B. 2015 violates separation\nof powers under the state constitution because the appointment power resides\nin the legislature unless expressly assigned elsewhere, because legislators\nassigned to the Board constitute a minority in voting power, cannot direct or\nhalt actions unsupported by other Board members, and because the\nlegislature's intent was not one of usurpation, but rather cooperation.\n\n A\n\n[¶61] I first address the Board's challenge that the state constitution prohibits\nlegislators from appointing themselves to executive boards. In article V, § 8 of\nthe North Dakota Constitution, the Governor is given appointment power for\n\n 30\n state offices \"if no other method is provided by this constitution or by law.\"\nWhile the Governor is given authority to appoint executive offices, N.D.C.C. §\n54-52-03 and S.B. 2015 are \"other\" methods provided by law, and as such, do\nnot violate article V of the Constitution.\n\n[¶62] This Court has also previously addressed this issue and found\nappointment powers are vested in the legislative branch. See State v. Frazier,\n182 N.W. 545, 548 (N.D. 1921). In the Frazier decision, this Court stated:\n\n This court has heretofore held, in construction of constitutional\n powers, that the power of appointment to office (and this includes\n power of removal) is vested neither in the executive nor judicial\n department of the government, excepting as the Constitution has\n expressly granted such power; that this power resides in the\n Legislature; that all governmental sovereign power is vested in the\n Legislature, except such as granted to other departments of the\n government, or expressly withheld from the Legislature by\n constitutional restrictions.\n\nId. Had we reached this issue, I would conclude the legislature's authority to\nappoint members to an executive agency falls within the powers vested to it by\nthe state constitution. I would reject the Board's assertion that N.D.C.C. §\n54-52-03 and S.B. 2015 violate article V of the North Dakota Constitution.\n\n B\n\n[¶63] The Board further asserts that N.D.C.C. § 54-52-03 and section 41 of S.B.\n2015 violate the separation of powers between coequal branches of government\nas established by article XI, § 26 of the North Dakota Constitution. States\nmaintain the authority to decide the extent to which powers will be kept\nseparate:\n\n The separation-of-powers doctrine which is embodied in the\n United States Constitution is not mandatory in state governments\n and is not enforceable against the states as a matter of\n constitutional law. It is for the State to determine whether and to\n what extent its powers will be kept separate between the three\n branches of government or whether persons belonging to one\n\n 31\n department may exert powers which, strictly speaking, pertain to\n another department of government. A state's determination one\n way or the other cannot be an element in the inquiry whether due\n process of law has been respected by the state or its\n representatives.\n\n16 C.J.S. Constitutional Law § 276 (May 2023 Update) (footnotes omitted).\nMoreover, the doctrine allows for some degree of functional overlap between\nthe branches. See 16A Am. Jur. 2d Constitutional Law § 242 (May 2023 Update)\n(\"[O]ne branch of government may engage in functions that intervene in or\noverlap with the functions of another branch so long as it does not undermine\nthe operation of that other branch or undermine the rule of law that all\nbranches are committed to maintain.\" (footnote omitted)).\n\n[¶64] This Court has made similar conclusions regarding our three branches\nof government:\n\n The essential structural division of power into three\n branches created by our Constitution parallels that of our sister\n states and also that of the U.S. Constitution. Accordingly, we may\n find the decisions from the U.S. Supreme Court and the highest\n courts of our sister states persuasive, but ultimately we are\n charged with interpreting the North Dakota Constitution and its\n distinct provisions. We have sometimes navigated our own path in\n defining the contours of separation of powers[.]\n\nN.D. Legis. Assembly v. Burgum, 2018 ND 189, ¶ 42, 916 N.W.2d 83. We have\nalso explained that \"[u]nder our constitutional system, the Legislature may not\ndelegate to itself, or to a subset of its members, executive or judicial functions.\"\nId. at ¶ 59 (quoting Kelsh v. Jaeger, 2002 ND 53, ¶ 21, 641 N.W.2d 100); see\nalso N.D. Const. art. XI, § 26 (\"The legislative, executive, and judicial branches\nare coequal branches of government.\"). See also State v. Hanson, 558 N.W.2d\n611, 614 (N.D. 1996) (finding article XI, § 26 of the North Dakota Constitution\nformalizes a separation of powers).\n\n[¶65] We have not adopted a bright-line analysis for what degree of overlap\nbetween the branches is tenable before concluding one branch has undermined\n\n 32\n the rule of another. We have considered approaches taken by sister states in\nnavigating our own rule of law in this area. In Burgum, this Court relied on\nState ex rel. McLeod v. McInnis, 295 S.E.2d 633, 637 (S.C. 1982), a South\nCarolina case, as persuasive authority, when it determined the legislative\nassembly usurped the executive branch's power by retaining for itself budget\napproval requirements for funds spent by the water commission. 2018 ND 189,\n¶¶ 55, 60. McInnis also provides relevant assistance for determining legislative\nencroachment when it found the \"separation of powers doctrine does not in all\ncases prevent individual members of the legislature from serving on\nadministrative boards or commissions . . . where such services falls in the\nrealm of cooperation . . . and there is no attempt to usurp functions of the\nexecutive department[.]\" 295 S.E.2d at 636.\n\n[¶66] Another South Carolina case established a bright-line test for analyzing\nthe issue by holding that legislative appointment to executive boards do not\nviolate the separation of powers doctrine where, \"(1) the legislators [are] a\nnumerical minority, and (2) the body [] represent(s) a cooperative effort to make\navailable to the executive department the special knowledge and expertise of\ndesignated legislators[.]\" S.C. Pub. Int. Found. v. S.C. Transp. Infrastructure\nBank, 744 S.E.2d 521, 527 (S.C. 2013) (quoting Tall Tower, Inc. v. S.C.\nProcurement Rev. Panel, 363 S.E.2d 683, 685-86 (S.C. 1987)).\n\n[¶67] I conclude most persuasive a test from Oklahoma, enumerated in In re\nOklahoma Department of Transportation, 64 P.3d 546, 550 (Okla. 2002), that\nestablishes a framework for determining whether members from a legislature\nserving on an administrative board or commission is a usurpation of power of\nthe executive branch. The court determined that \"[r]ather than focusing\nexclusively on how a function might be conceptually classified . . . a usurpation\noccurs when one department is . . . subjected directly or indirectly to the\ncoercive influences of another, and when there is a significant interference by\none department with the operations of another department.\" Id. (cleaned up).\nThe court went on to discuss a non-exclusive set of four criteria in deciding\nseparation of powers issues. The court considered the following: (1) the\n\"essential nature of the power being exercised. Is the power exclusively\n\n 33\n executive or legislative or is it a blend of the two?\" (2) the \"degree of control\"\nthe legislature was attempting to exercise; \"Is the influence coercive or\ncooperative?\" (3) the legislature's objective or intent either to \"cooperate with\nthe executive by furnishing some special expertise of one or more of its\nmembers\" or to establish \"its superiority over the executive department in an\narea essentially executive in nature\"; and (4) the \"practical result of the\nblending of powers as shown by actual experience over a period of time where\nsuch evidence is available.\" Id. (quoting State ex rel. Schneider v. Bennett, 547\nP.2d 786, 792 (Kan. 1976)). I would adopt this test and apply the four criteria\nto the instant case.\n\n 1\n\n[¶68] In examining the first factor—whether the nature of the power being\nexercised is executive or legislative, or a blend of the two—it is important to\nnote the Board \"constitute[s] the governing authority of the system[.]\"\nN.D.C.C. § 54-52-03(1). The Board is responsible for managing the NDPERS\nsystem, has all the privileges of a corporation, appoints an executive director,\nand creates staff positions necessary for the \"sound and economical\nadministration of the system.\" N.D.C.C. § 54-52-04(1)-(3). The Board must also\narrange for an actuarial expert to \"make an annual valuation of the liabilities\nand reserves of the system\" and determine \"the contributions required by the\nsystem to discharge its liabilities and pay the administrative costs under this\nchapter, and to recommend to the board rates of employer and employee\ncontributions required, based upon the entry age normal cost method, to\nmaintain the system on an actuarial reserve basis[.]\" N.D.C.C. § 54-52-04(4).\n\n[¶69] The nature of the Board's tasks are a blend of legislative and executive.\nWhile the Board is responsible for overall management of the system—which\nis more executive in nature—much of the day-to-day operations are facilitated\nby hired director(s), staff, and actuarial experts in the field—who make daily\ndecisions on how the system is to be run. I would determine this factor weighs\nneither in favor of usurpation, nor against usurpation, but is neutral given the\ndual nature of the Board's authority.\n\n 34\n 2\n\n[¶70] The second factor considers whether the legislature is attempting to\nmaintain control over executive functions. This factor weighs in favor of the\nLegislative Assembly's argument that four appointed legislators to the Board\ndo not exercise a coercive degree of control over the executive functions of the\nagency. The four appointed legislators constitute a minority of the Board; the\nchairman of the Board is appointed by the Governor; and individual\nlegislators—either together or alone—cannot bring the Board's directives to a\nhalt or initiate actions on their own. While it may be true the legislature\nappears to have diluted the elected Board members' power, that issue was not\nraised by the Board. This factor weighs in favor of finding legislative\nappointments to the Board do not equal a usurpation of the executive branch's\npower.\n\n 3\n\n[¶71] The third factor considers whether it is the legislature's intent to\ncooperate with an executive board by providing legislator expertise on a\nspecific area, or instead, to establish superiority over the executive board. The\nthird factor does not weigh in favor of usurpation. Appointing four of eleven\nBoard members from the legislature in no way establishes superiority over the\nexecutive board or its functions. Furthermore, the Board has provided no\nlegislative history that suggests it was the legislature's intent to establish\nsuperiority over the direction of the Board. The Board asserts that \"[t]he\nmotivation is obvious[,]\" because Board members are \"responsible for adopting\nthe actuarial assumptions and standards necessary to assure proper funding\nof NDPERS.\" However, the Board and its composition—both before, and as\nmodified by section 41 of S.B. 2015—will ensure that the four assigned\nlegislators cannot reign supreme over the direction and decisions of the Board.\nThe legislators can merely provide input in cooperation with other Board\nmembers. This factor weighs against a determination of usurpation by the\nlegislative branch against the executive branch.\n\n 35\n 4\n\n[¶72] The fourth factor considers the practical results of blending power over\ntime. Here, two members of the legislature have previously been appointed to\nserve on the Board, and under the modification, four members serve in that\ncapacity. The Board, as Petitioner, provides no \"practical results\" showing the\nBoard was unable to practically fulfill their duties with two legislators\nappointed to it. An individual breach of fiduciary duty, should it occur, can be\naddressed with action taken against individual legislators who may be alleged\nto have breached their fiduciary duty as a member of the Board.\n\n[¶73] I conclude no direct or indirect coercive influences in the appointment of\nfour legislators to the Board, and conclude no significant interference in the\noperations of the Board or the NDPERS system considering that the\ncomposition of the Board does not allow the legislators to exercise coercive\ncontrol over the Board's action, establish superiority over the Board's direction,\nor practically alter the Board's functions despite a limited blending of power.\nThese conclusions are in accordance with the test established in In re Okla.\nDep't of Transp. I would conclude that N.D.C.C. § 54-52-03 and section 41 of\nS.B. 2015 do not violate the separation-of-powers doctrine found in article XI,\n§ 26 of the North Dakota Constitution.\n\n IV\n\n[¶74] The Board argues that a legislator simultaneously holding the office of\nNDPERS trustee violates the common-law rule against incompatibility\nbecause as a trustee, a Board member's fiduciary responsibility for adopting\nactuarial assumptions necessary to assure proper funding of NDPERS is\n\"hopelessly in conflict\" with a legislator's duty to implement the state budget.\nThe Board asserts a fiduciary must be concerned with the participants' best\ninterest, not the best interest of the state budget or their constituents. Given\nthese fiduciary responsibilities, the Board contends a legislator cannot perform\nthe duties of his or her elected office and also fulfill an undivided duty of loyalty\nto NDPERS.\n\n 36\n [¶75] The Board relies on Tarpo v. Bowman Public School District #1, which\nstates, \"it is a well settled rule of the common law that a person may not, at\none and the same time, rightfully hold two offices which are incompatible.\" 232\nN.W.2d 67, 70 (N.D. 1975) (quoting State v. Lee, 50 N.W.2d 124, 126 (N.D.\n1951)). This Court has explained \"the common law is adopted as the law in this\nstate where there is no express constitutional or statutory law on the subject.\"\nTrosen v. Trosen, 2022 ND 216, ¶ 21, 982 N.W.2d 527; see also N.D.C.C. §\n1-01-03(4), (5), and (7); Reese v. Reese-Young, 2020 ND 35, ¶ 20, 938 N.W.2d\n405. \"The common law, which is based on reason and public policy, can best be\ndetermined by studying the decisions of our federal and state courts and the\nwritings of past and present students of our country's law over all the years of\nAmerican judicial history.\" Trosen, at ¶ 21 (quoting Reese, at ¶ 21). However,\nunder N.D.C.C. § 1-01-06, \"there is no common law in any case in which the\nlaw is declared by the code.\"\n\n[¶76] Section 54-52-03, N.D.C.C., has been declared by the code. The\nlegislator appointments to the NDPERS Board, as provided under N.D.C.C. §\n54-52-03 and increased in S.B. 2015, are the product of the legislative process\nresulting in statutory law passed by the legislature. To the extent the\nappointments provided by the code—both previously and as amended by S.B.\n2015—are in conflict with the common-law rule, the code must prevail. I would\nconclude the Board's argument regarding the common-law doctrine of\nincompatibility of office to be without merit.\n\n V\n\n[¶77] The Board argues S.B. 2015 violates the single subject rule, found in\narticle IV, § 13 of the North Dakota Constitution, by embracing more than a\nsingle subject because section 41, which amends and reenacts N.D.C.C. § 54-\n52-03 by changing the NDPERS Board's inherent composition, is not germane\nto the subject expressed in the title of the bill, which the Board argues is an\n\"appropriation bill.\" As noted above, I agree with the conclusion in the majority\nopinion. However, when considering whether to stay our mandate in this case\npursuant to N.D.R.App.P. 41(b), I believe our prior caselaw and deference to\nlegislative action compels a stay.\n\n 37\n [¶78] North Dakota Constitution article IV, § 13 provides that \"[n]o bill may\nembrace more than one subject, which must be expressed in its title; but a law\nviolating this provision is invalid only to the extent the subject is not so\nexpressed.\" This Court has interpreted the one-subject requirement broadly\n\"as requiring that all matters treated by one piece of legislation be reasonably\ngermane to one general subject or purpose.\" SunBehm Gas, Inc. v. Conrad, 310\nN.W.2d 766, 772 (N.D. 1981). \"Such an act is not invalidated simply because\nthe title may enumerate a plurality of subjects, when all of these subjects taken\ntogether are but one subject.\" State ex rel. Sandaker v. Olson, 260 N.W. 586,\n592 (N.D. 1935). Stated another way:\n\n [T]his rule means that legislation may include any matter\n naturally and reasonably connected with the subject of the act as\n expressed in the title. It is also the law of this state that the title\n to an act will be construed liberally and not in a strict and technical\n manner.\n\nLapland v. Stearns, 54 N.W.2d 748, 752 (N.D. 1952) (citations omitted); State\nv. Colohan, 286 N.W. 888, 893 (N.D. 1939); City of Mandan v. Nichols, 243 N.W.\n740, 742-43 (N.D. 1932); State v. Steen, 236 N.W. 251, 253-54 (N.D. 1931); Great\nN. Ry. Co. v. Duncan, 176 N.W. 992, 997 (N.D. 1919); State ex rel. Gaulke v.\nTurner, 164 N.W. 924 (N.D. 1917); Eaton v. Guarantee Co., 88 N.W. 1029, 1029-\n30 (N.D. 1902). \"Whether a law is unconstitutional is a question of law, which\nis fully reviewable on appeal.\" City of Fargo v. Roehrich, 2021 ND 145, ¶ 5, 963\nN.W.2d 248. \"We construe statutes and municipal ordinances to avoid\nconstitutional infirmities, and we resolve any doubt in favor of the\nconstitutionality of the statute or ordinance.\" Id.\n\n[¶79] We have historically provided great deference to the legislature with\nregard to the application of the single subject rule. This case goes far beyond\nour prior deference and the majority opinion rightly concludes the legislation\nviolates the single subject rule. However, in light of my belief the underlying\nlegislation directly at issue in this case would survive the other challenges\nraised by NDPERS, the far-reaching impact of invalidating the legislation as\nhaving been enacted in violation of the single subject rule, and our prior\n\n 38\n caselaw reflecting great deference to the legislature, I would exercise our\ndiscretion to stay the mandate in this case for thirty days.\n\n VI\n\n[¶80] I concur in the majority opinion the legislation violates the single subject\nrule as expressed in article IV, § 13 of the North Dakota Constitution. Had we\nreached the merits of the underlying legislation at issue in this case, I would\nconclude N.D.C.C. § 54-52-03 and section 41 of S.B. 2015, which provide for the\nappointment of four sitting legislators to the NDPERS Board, do not violate\narticle IV, § 6; articles IV, V, and XI of the Constitution. Furthermore, I would\nconclude N.D.C.C. § 54-52-03 and section 41 of S.B. 2015 do not violate the\nseparation of powers between coequal branches of government, and do not\nviolate the common-law rule against incompatibility of office. I would also\nrecognize the far-reaching implication of our decision and our prior deference\nwith regard to the single subject rule and stay the mandate of our decision for\na period of thirty days to provide the legislature an opportunity to call a special\nsession and enact all of the impacted legislation in compliance with article IV,\n§ 13 of the Constitution.\n\n[¶81] Jon J. Jensen, C.J.\n\nMcEvers, Justice, concurring specially.\n\n[¶82] I agree with the majority opinion concluding the legislation enacted is in\nviolation of the single subject rule of article IV, § 13 of the North Dakota\nConstitution and is unconstitutional and, therefore, not valid. I also agree with\nthat portion of Chief Justice Jensen's concurring opinion that our judgment\nshould not be issued and the mandate in this case should be stayed for a period\nof time to allow the legislative assembly an opportunity to convene a special\nsession to consider whether all the sections previously approved will continue\nto gather sufficient support when they are presented and voted on in a\nconstitutional manner.\n\n 39\n [¶83] As noted in the Chief Justice's separate, N.D.R.App.P. 41(b) provides this\nCourt with discretion to stay its mandate following the issuance of an opinion.\nSee also Datz v. Dosch, 2014 ND 102, ¶ 9, 846 N.W.2d 724 (noting N.D.R.App.P.\n41(b) provides the Court with discretion to extend the time to issue the\nmandate). While granting a stay when no stay has yet been requested is an\nunusual act by this Court, a stay is within the Court's authority. I agree with\nthe Chief Justice that not granting a stay may have unintended and far-\nreaching effects. The funding for much of state government is called into\nquestion by declaring the legislation invalid—including funds that have\nalready been spent. Nonetheless, I do not care to speculate on the likelihood of\nwhich legislation may survive additional consideration by the legislative\nassembly, so I do not fully join the Chief Justice in his separate.\n\n[¶84] Lisa Fair McEvers\n Gary H. Lee, D.J.\n\n[¶85] The Honorable Gary H. Lee, D.J., sitting in place of Bahr, J., disqualified.\n\n 40",
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