AGO 81-023.

• Case Date: March 11, 1981
• Court: North Dakota

North Dakota Attorney General Opinions 1981. AGO 81-023. OPINION 81-23Office of the Attorney General State of North Dakota Opinion No. 81-23Date Issued: March 11, 1981Requested by: Gene A. Christianson Acting Administrator State Health Department--QUESTION PRESENTED-- Whether the institution of cardiac surgery by a hospital constitutes a new medical care service under Chapter 23-17.2 of the North Dakota Century Code.--ATTORNEY GENERAL'S OPINION-- It is my opinion that the question presented is a question of fact and not a question of law. Therefore, this question must be decided by the appropriate party at each level in accordance with the proper legal standards expressly or implicitly set forth in Chapter 23- 17.2, N.D.C.C. --ANALYSIS-- Under Section 54-12-01(6), N.D.C.C., the Attorney General has the duty to give written opinions on all legal or constitutional questions relating to the duties of state officers. It is my interpretation of this provision of law and other similar provisions that require a written opinion from the Attorney General, that the Attorney General can only give an opinion on a question of law. Necessarily, a decision on questions of fact is properly left in our system to the trier of facts whether it be a judge, jury, or hearing officer after an adversary proceeding or stipulation has developed all of the relevant facts. This process to fully develop the facts is not a part of the process in requesting an Attorney General's opinion. Questions of fact are not properly to be decided by the Attorney General. Accordingly, to the extent a question of fact is presented to the Attorney General, the Attorney General cannot express an opinion, but can only set forth the various legal issues which the trier of fact ought to consider in arriving at a decision. That the question here presented is a question of fact is apparent from reading the relevant part of Section 23-17.2-04, N.D.C.C. That provision is as follows:

No hospital or related medical facility shall be constructed or expanded and no new medical care service shall be instituted after the effective date of this chapter except upon application for and receipt of a certificate of need as provided by this chapter. (Emphasis supplied.)

There is no specific mention in Chapter 23-17.2, N.D.C.C., or any of the rules adopted thereunder concerning cardiac...