Gov. John Hoeven may not pick a legislator as North Dakota's newest tax commissioner or Supreme Court justice because the Legislature raised the pay for both positions this year, Attorney General Wayne Stenehjem said.

Stenehjem, in a legal opinion issued Thursday, said the state constitution bars Hoeven from choosing an incumbent lawmaker for either job.

"Although there may be sound public policy reasons for not excluding such a large pool of potential applicants, I can't ignore the fact that the wording of the constitution is very clear," Stenehjem said in an interview Thursday.

Hoeven will be appointing successors for Tax Commissioner Rick Clayburgh, who is resigning at month's end, and former Supreme Court Justice William Neumann, who left the bench in March. Clayburgh is becoming director of the North Dakota Bankers Association, while Neumann is now director of the state Bar Association.

Part of Article 4, Section 6, of the North Dakota Constitution says legislators may not be appointed "to any office for which the compensation has been increased by the legislative assembly during (the legislator's) term."

Both of the jobs in question are due to get 4 percent pay increases this year and next, as part of a general salary increase for state government employees.

Courts in other states with similar constitutional provisions have ruled that an across-the-board pay raise should not trigger hiring restrictions on legislators. However, Stenehjem said the North Dakota Constitution's language clearly bars Hoeven from picking a legislator for either appointment.

"I do not believe the pertinent provisions in (the constitution) are unclear, or ambiguous, or leave room for interpretation," Stenehjem wrote in his opinion.

Hoeven said he expected the decision, but said he believes the intent of the constitutional language was not meant to affect situations when the Legislature approves a normal pay increase for state workers.

"There are a number of legislators who have expressed interest in both positions," Hoeven said. "So I needed to get it resolved."

Sen. Tom Trenbeath, R-Cavalier, is one of 10 applicants for the Supreme Court vacancy created by Neumann's resignation. Trenbeath could not be reached for comment Thursday.

Salaries for North Dakota's elected officials are set by law.

The annual salary for Neumann's former job is rising from $99,122 to $103,087 annually on July 1, and to $107,210 on July 1, 2006. Clayburgh's salary, which is now $73,821, is rising to $76,774 on July 1 and will increase to $79,845, on July 1, 2006.

(On the Net: Copy of opinion, http://www.ag.state.nd.us/documents/2005-L-15.pdf.)