ND Legislative Wrap-Up Report

Another legislative session wrapped up at the end of April in North Dakota.  We spent the session advocating for bills that protect or advance North Dakotans’ civil liberties and rights and defending against bills that would compromise those same rights and liberties.  We had a number of successful pro-active bills pass and defeated or neutralized several bills too.  More than 700 bills were introduced this session, we tracked nearly five percent of them and focused our lobbying efforts on those we compiled and summarized below. 

Support:

LGBTQ+ Non-Discrimination – HB 1386 (Failed to Pass)

This session’s bill added protections in housing, employment, public accommodations, and other areas of the North Dakota Human Rights Act for LGBTQ+ North Dakotans.  It was introduced by Rep. Joshua Boschee.  We supported the bill along with our coalition partners, but the bill failed to pass out of committee with a favorable recommendation and did not receive enough votes on the House floor to pass.  It is past time for North Dakota’s politicians to recognize the humanity and equality of ND’s LGBTQ population by passing legislation that will prohibit discrimination against the LGBTQ+ community.  We’ll continue to work toward finding ways to promote policies in North Dakota that ensure LGBTQ+ North Dakotans are protected from discrimination and enjoy equality in the workplace, public spaces, schools, and beyond.

Confidential Informant Reform – HB 1221 (Passed)

We worked through the interim and during session to help secure passage of Representative Rick Becker’s confidential reform bill or “Andrew’s Law.”  The bill as originally written required police use a person as a confidential informant (CI) only if the person had consulted with an attorney and police assessed the risk to the safety of the potential informant and certain other factors.  The original version of the bill prohibited the use of juveniles under 15 as informants and required police to collect and publicly report data on their use of informants.  CI use by police is largely unregulated, shrouded in secrecy, and often circumvents an informant’s rights to due process and representation by an attorney.  CI work is dangerous and informants receive little to no training despite doing some of the most dangerous undercover work.  Despite passing the House with little change, the Senate amended the bill drastically in committee.  Eventually a compromise bill was drafted and important aspects of the original bill like the right to an attorney, prohibition on the use of juveniles, and training and evaluation requirements for police to use informants made it into the final version of the bill. 

Juvenile Life without Parole – HB 1195 (Passed)

This bill was introduced by Rep. Larry Klemin.  The bill sought to end criminal sentencing of juveniles to life without parole.  The U.S. Supreme Court ruled in June 2012 that juveniles convicted of murder cannot be subject to a mandatory sentence of life imprisonment without the possibility of parole. The court’s rulings in Miller v. Alabama and Jackson v. Hobbs built on a decision two years prior that juveniles could not be sentenced under any circumstances to life imprisonment without the possibility of parole for non-homicide offenses. Even when a juvenile was convicted of murder, the court said, a judge must be allowed to take a juvenile’s age into account (along with other relevant circumstances) in deciding the appropriate punishment.  We worked closely with the primary advocacy group supporting the bill, The Campaign for the Fair Sentencing of Youth, to assist with the passage of this bill.  The bill as passed requires ND judges upon a motion from an incarcerated person convicted as an adult but sentenced as a juvenile to review the incarcerated person’s sentence and consider a number of factors before granting the person incarcerated as a juvenile a lower sentence than life without the opportunity for parole. 

Prohibition on Weaponized Drones – HB 1167 (Failed to Pass)

This bill was introduced by Rep. Rick Becker.  It’s a follow-up bill to the drone bill passed during 2015’s session which restricted police use of drones without warrants.  The bill passed in 2015’s session prohibited police from weaponizing drones with lethal weapons, but did not include language that prohibited less lethal weapons.  HB 1167 sought to close this loophole.  Unfortunately, despite no objection by law enforcement in the House committee hearing to the limitation on the use of less lethals and an acknowledgement by several police agencies that they do not intend to use less lethals to weaponize drones, the bill failed to pass in the House.  Lawmakers who voted against the bill argued because police do not intend to use less lethal weapons on drones the bill was unnecessary, while others did not want to limit police use of drones. 

Opposed:

Anti-Sharia – HB 1425 (Defeated)

HB 1425 or the anti-Sharia bill was introduced by Rep. Kim Koppelman.  This bill was an attempt to ban any consideration or analysis of religious systems or laws in cases heard before North Dakota courts.  Although the bill’s language did not explicitly name Islam, proponents of bills like HB 1425 that passed in other states have been motivated by an unfounded fear that Sharia law or Islamic doctrine will overtake our judicial system and laws.   Our courts routinely hear cases that involve some consideration of whether there was a valid religious belief espoused by one party in the case or whether a contract between two parties can be arbitrated in a religious arbitration.  U.S. courts do not apply religious law, but look to the basis of the belief to determine the facts of a dispute and then apply US laws according to federal and state statutes and the US Constitution.   HB 1425 was unnecessary and a threat to religious freedom.  We collaborated with the ND Catholic Conference and the ND Human Rights Coalition to defeat the bill.

School Prayer – HB 1275 (Passed)

This bill was introduced by Rep. Kim Koppelman.  HB 1275 sought to allow prayer over the loudspeaker at public and private school games and extracurricular activities.  Speech communicated through a loudspeaker at public or private school activities sanctioned by the ND High School Activities Association is considered government speech.  In order to avoid violating the Establishment Clause of the US Constitution, government speech in a school setting cannot appear to promote or endorse any particular religion.  The original version of HB 1275 was unconstitutional.  The bill passed in its unconstitutional form in the House and was amended in the Senate to remove the mandate that loudspeaker prayer be allowed at NDHSAA school activities.  Although the bill as passed is no longer unconstitutional, we have serious concerns that the remaining language of the bill, which allows student initiated prayer at school activities, may encourage or lead to school prayer activities that appear to be endorsed by the government.  Such government endorsement would be unconstitutional because it in effect can coerce students and others to conform to religious beliefs that are not their own. 

Anti-Refugee -- HB 1427 (Passed)

This bill was introduced by Rep. Chris Olson.  The original version of the bill required the state to evaluate the costs refugee resettlement to cities and the state of North Dakota and under broad and vague language gave the Governor power to determine whether refugee resettlement should be halted in North Dakota based on a limited amount of collected data required by the bill.  We worked with a broad array of partners like Lutheran Social Services, the ND Catholic Conference, ND Human Rights Coalition, immigration attorneys, and the refugee community to defeat this unconstitutional bill.  The House committee voted to overhaul the original version of the bill with a hog house amendment.  The amended bill became a refugee resettlement study to be conducted in the 2017-2018 interim.  The amended refugee study bill passed both the House and Senate and was signed by the Governor.  In June the Legislative Management committee voted to select the refugee study to move forward in the interim.  We will closely follow this interim study and work with coalition partners to present complete and accurate information to the interim committee about the tremendous benefits our state enjoys because refugees and their families resettle in North Dakota and the legal and constitutional requirements the committee must consider during the study.

Voter Identification -- HB 1369 (Passed)

HB 1369 was introduced by prime sponsor Rep. Al Carlson.  This voter ID bill was another attempt to modify the state’s current voter ID law which is being litigated in ND’s federal court.  In August 2016, a federal court placed an injunction on the state’s voter ID law and required the reinstatement of voter affidavits for use in the 2016 general election for any voter who lacked an ID required by ND’s voter ID law.  HB 1369 sought to remove the affidavit requirement by adding a provisional ballot option to the state’s current voter ID law.  The bill also added a few other supplementary curing documents for voters to use to verify their voter ID (if the ID was not current) such as a utility bill or pay stub.  This bill is problematic for several reasons.  Chief among the bill’s problems is a provisional ballot is not counted contemporaneously and will require a qualified voter who could not show ID at the polling place to follow-up with their elections office with a valid voter ID and supplementary documents within 6 days following the election and prior to the meeting of the canvassing board.  If the voter fails to provide an appropriate ID within the required timeframe the voter’s ballot will not be counted in the election.  This does not provide a voter without an official ID a failsafe to vote like the voter affidavit.  The bill as passed also adds an additional burden on otherwise eligible voters to travel to their local election’s office to have their vote count.  Although the bill became law, it remains to be seen whether the new law will pass constitutional scrutiny if it is reviewed by the federal court handling the ongoing voter ID litigation in North Dakota. 

Anti-Protester Bills:

Disorderly Conduct causing Economic Harm – HB 1193 (Defeated)

HB 1193 was introduced by prime sponsor Rep. Larry Klemin.  The bill would have enhanced the penalty of a miscellaneous misdemeanor like disorderly conduct to a class C felony for anyone who was found guilty of committing the misdemeanor offense and the associated conduct was found to have caused one thousand dollars or more of economic harm.  The bill’s language was problematic because it likely would have encompassed activities that are strictly protected by the First Amendment.  After all, the intent of protests like boycotts is to cause economic harm.  The US Supreme Court has held that such activity is protected by the First Amendment.  We collaborated with the ND AFL-CIO and the ND Association of Criminal Defense Lawyers to defeat this bill. 

Motor Vehicle Driver Immunity – HB 1203 (Defeated)

This bill was introduced by prime sponsor Rep. Kempenich.  The intent of the bill was to immunize drivers from liability if they hit a protestor or any pedestrian on a roadway.  The language of this bill was so broad that its application would have allowed drivers to operate their vehicles without fear of liability in most any circumstance.  Needless to say, this bill was ill-conceived and dangerous.  We worked with trial lawyers and others to ensure the House committee members and representatives understood the ramifications of the passage of this bill. 

Anti-Masking Bill – HB 1304 (Passed)

HB 1304 was introduced by prime sponsor Rep. Al Carlson.  The bill sought to criminalize any person wearing a mask or hood in a public place and provided some exceptions for religious purposes, athletic activities, Halloween, seasonal or weather related coverings, and a few others.  For purposes of the First Amendment, the bill’s prohibition on wearing masks or hoods on a public street unless allowed by the listed exceptions in the bill would have unconstitutionally prohibited the wearing of a mask during a protest on a public street or sidewalk.  We lobbied against the passage of this bill in its entirety, but we also suggested that the unconstitutional aspect of the bill could be remedied by adopting much narrower language that only made it a crime to wear a mask or hood to conceal one’s identity during the commission of a crime.  The House committee chose to adopt the amendment we suggested and the Senate added new language that made it a crime to wear a mask or hood with the intent to harass or intimidate another during the commission of a crime.  Although we argued the bill as amended was unnecessary the bill passed and was signed into law.  Despite the bill’s passage, the language of the new law is much narrower than originally proposed by Rep. Carlson and does not upon its face infringe upon First Amendment rights.

Increased Penalties for the Criminal Offense of Rioting – HB 1426 (Passed)

HB 1426 was introduced by prime sponsor Rep. Todd Porter.  The bill sought to increase the penalties for engaging in and inciting a riot.  The penalty for engaging in a riot increased from a class B misdemeanor to a class A misdemeanor which carries the possibility of up to one year in jail and a three thousand dollar fine.  The penalty for inciting a riot of that involves one hundred people or more increased from a class C felony to a B felony which carries up to ten years in jail and a twenty thousand dollar fine.  Proponents argued the heavier penalties required by this legislation would deter protesters from engaging or inciting a riot.  North Dakota’s definition of riot is quite broad and despite proponents arguments that HB 1426 should be applied to “tumultuous and violent conduct” it’s clear because the definition of riot is broad and can encompass a wide variety of behavior.  The riot offense has and can be used in application to apply to protected First Amendment activity. Despite our strong arguments that the bill would likely chill First Amendment speech, criminalize legitimate protest activity, and encumber the criminal justice system, the legislature passed HB 1426. 

Loitering – HB 1383 (Defeated)

This bill was introduced by prime sponsor Rep. Todd Porter.  The intent of the bill was to criminalize persons who loitered in public or private spaces.  The bill’s language would have made it a class B misdemeanor for a person to stand in a public or private place and refuse to reveal their identity to police if the person’s presence in the area caused another person reasonable and justifiable alarm for the safety of their person or property.  The bill’s language was broad and vague and arguably violated the Due Process clause of the US Constitution.  Evidence shows that the enforcement of loitering laws in other parts of the country disproportionately and needlessly sweeps homeless persons, people living in poverty, and people of color into the criminal justice system.  Such laws can also have a chilling effect on legitimate First Amendment protected activity in public spaces.   We collaborated with the ND Catholic Conference to oppose this bill.  HB 1383 received a Do Not Pass recommendation from the House Judiciary committee and during the House floor vote it failed by wide margins.

This past legislative session was challenging because there were a myriad of bills that took direct aim at our First Amendment rights among others.  Although there were many bills that sought to chip away at those rights we were successful in defeating or lessening the impact of many of them.  We were also successful in advocating for the expansion of civil liberties and rights with the passage of a few bills this session too. 

In the interim legislative session we will be following a number of committees as they study refugee resettlement, incarceration issues, and behavioral health.  We encourage you to reach out to us if you have interest in supporting our policy work and we’ll endeavor to keep you up-to-date on our interim legislative work.  And as always, thank you for your continuing support. 

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