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For Want of an "Or" . . .
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
February 2019


A recent series of events illustrates how the legislative process works and how the North Dakota Catholic Conference, among others, help shape public policy.

Senate Bill 2289 would prevent caregivers from denying family members and close friends access to a vulnerable adult. The bill was assigned to the Senate Human Services Committee, which is chaired by Senator Judy Lee, who also happens to be bill’s prime sponsor.

The hearing took place on a Monday morning. Senator Lee and others testified that some caregivers have prevented friends and family members from visiting or even communicating with a loved one. In addition to being and abuse of the caregiver’s authority, such isolation of a vulnerable adult creates an environment for physical, emotional, and financial abuse.

While listening to the testimony it occurred to me that a caregiver might also deny access to a priest or spiritual advisor. I quickly used my phone to email all the priests and deacons of the Fargo Diocese and asked them if they had ever experienced a time when a caregiver denied them access to a parishioner. The only reason I emailed only the Fargo diocesan clergy is because I have access to all of them at once with a single email address.

The testimony in support of the bill was still ongoing when several priests emailed back saying they had experienced caregivers preventing them from providing spiritual care to parishioners. I then stood up, expressed support for the bill, and suggested amendments that would add clergy to the bill.

The committee was receptive to the idea. There was a brief discussion about whether the word “clergy” should just be added, but the committee then recognized that since the subject touched upon religious issues they should look more carefully at how the language should be drafted. Chairman Lee asked if I could look into it and provide the committee with the right amendments.

That afternoon I did some research and drafted the amendments. I had to address two questions.

First, the language had to be constitutional. The Establishment Clause prevents states from favoring one faith over another. It also prevents the government from favoring “organized religions” with membership and official clergy over less organized spiritual care from non-clergy. The solution was to define “clergy member” as “a member of the clergy or spiritual counselor who has provided a vulnerable adult with religious or spiritual care.”

Second, it had to allow access for someone providing spiritual care without allowing anyone off the street to abuse the process. The answer: Add to the definition of “clergy member” “or who represents a religious organization to which a vulnerable adult is a member.” Written this way, a deacon or eucharistic minister or other representative of the person’s church could visit the vulnerable adult.

The amendment, therefore, defined “clergy member” as a “member of the clergy or spiritual counselor who has provided a vulnerable adult with religious or spiritual care or who represents a religious organization to which a vulnerable adult is a member” and then inserted “clergy member” after family member and friend throughout the bill.

On Tuesday I submitted the amendments to the committee chair and intern. As with all amendments, the intern submits the proposed amendments to Legislative Council. Legislative Council writes them up in an official form in the computer system and that is what the committee officially considers.

On Wednesday the committee adopted the amendments and gave the bill a “do pass” recommendation.

On Thursday, the amendments were adopted by the full Senate. In the Senate every amendment is discussed and voted on separately. I was interested in the other amendments to the bill so I looked them up online. That is when I discovered the missing “or.”

My proposed amendments had an “or” between the two solutions I had developed. Somehow in the process the “or” disappeared.

Without the “or” the amendment read: "member of the clergy or spiritual counselor who has provided a vulnerable adult with religious or spiritual care who represents a religious organization to which a vulnerable adult is a member.” Remember the constitutional problem of not favoring organized religion? Without the “or,” the definition now allowed visits only from clergy who belonged to a religious organization that had formal members.

After the Senate’s floor session I approached Senator Lee and explained the situation. She assured me that it was a mistake and that she would get it fixed. Only the bill’s amendments had been approved, not the amended bill. Unlike the state House, the Senate allows floor amendments before the final vote.

On Friday the amended bill came up for a vote by the entire Senate. After Senator Dave Clemens explained the bill to the chamber Senator Lee moved for consideration of an additional amendment. Pursuant to the rules of the Senate, paper copies of floor amendments have to be provided to every senator. Legislative Council prepared another set of amendments. The sheet of paper distributed to every senator added the word “or” back into the bill.

The Senate adopted the amendment on a voice vote and then unanimously passed the corrected bill. SB 2289 now heads to the House.

The story of this bill illustrates much about the North Dakota legislative process. Legislators, lobbyists, constituents, priests, interns, staff, and the people who make all this information available electronically and on paper had a hand in this series of events. From Monday to Friday a good bill was introduced, input was received, the bill was made better, mistakes were made, the bill became unconstitutional, the bill was fixed, and a very good bill passed the Senate. The process may not be perfect, but it works.