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Analysis: Governor's orders may have overstepped authority

BISMARCK (AP) — An analysis by legislative lawyers suggests Gov. Doug Burgum may have overstepped his authority by imposing regulatory restrictions on business allowed to reopen amid the coronavirus outbreak.
The memo released Tuesday afternoon by the nonpartisan Legislative Council raises the question of whether health officials and occupational licensing boards should have placed the restrictions, and not the governor.
“The broad question is whether an executive order through reference to various industry specific guidelines can impose regulatory limitations and restrictions upon businesses and provide for criminal penalties for violations of the guidelines,” said John Bjornson, director of the Legislative Council, the Legislature’s research arm.
Burgum on Friday allowed most businesses that had been shuttered for weeks to reopen with precautions that included limiting bars and restaurants to half capacity, requiring barbers and cosmetologists to wear masks and prohibiting some high-intensity fitness classes. Movie theaters also may reopen if they do such things as limit seating and stagger start times.
Failing to follow the restrictions is considered an infraction that carries up to a $1,000 fine.
Burgum’s so-called ND Smart Restart relied on input from state officials and members of private sector that developed a protocols ïntended to have the force of law,” the memo said.
The memo, prompted after Bjornson said several lawmakers had inquired about the executive authority, criticizes the protocol for using “legally imprecise language and, therefore, may be vulnerable to a void-for-vagueness challenge.”
Legislative lawyers stopped short of issuing a declarative statement on whether the protocal was proper, and instead said, “These are questions of law that would be most appropriately answered by a court or through legislation.”
Burgum said in statement “every action taken by our administration has been squarely focused on saving the lives and livelihoods of North Dakota citizens.”
The governor’s statement said his administration “also worked closely with business owners and organizations to develop the ND Smart Restart protocols to ensure they would be both common-sense and effective while allowing us to lift our limited restrictions on businesses.”
Bismarck Republican Rep. Lawrence Klemin, North Dakota’s speaker of the House and a lawyer, said anyone challenging an infraction would surely cite the memo done by the Legislature’s lawyers as part of their defense.
If I was a defendant in court, I would raise that issue,” Klemin said. “If somebody wants to fight it, they will raise all the issues they can.”
Klemin said he doesn’t think the GOP-led Legislature wants a legal fight with the governor but lawmakers likely will address any issues during the session that starts in January.
“Overall, the governor, his staff and the agencies are doing a good job but there are some constitutional issues that have been raised,” Klemin said.
The North Dakota Department of Health said 41 additional people tested positive for the coronavirus since Monday, bringing the state total to 1,266.
The new figures Tuesday include 13 in Cass County, which includes Fargo.
Burgum said events planned Monday at the Fargodome and in Williston on Tuesday were postponed due to a temporary shortage of consumable components for machines needed to analyze the tests at the state Department of Health’s microbiology lab in Bismarck.
Burgum blamed it on a supply chain issue that has caused a backlog of about 5,000 tests.
More than 36,400 people have been tested for the coronavirus in North Dakota, including 1,667 since Monday.
The number of deaths attributed to the coronavirus in North Dakota remained at 25, with no new deaths reported Tuesday.
For most people, the new coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia and death.