79th Legislative Session _ 2004

Committee: House Judiciary
Saturday, February 07, 2004

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Cutler
P    Deadrick (Thomas)
P    Engels
P    Gillespie
P    Hanson
P    Hennies
P    Madsen
P    Murschel
P    O'Brien
P    Peterson (Jim)
P    Sebert
P    Michels, Vice-Chair
P    McCaulley, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chair McCaulley

MOTION:     TO APPROVE THE MINUTES OF FEBRUARY 6, 2004

Moved by:    Hanson
Second by:    Engels
Action:    Prevailed by voice vote.

         HB 1158: prohibit the taking of certain pictures of another without that person's consent.

Presented by:    Representative Joni Cutler
Proponents:    Chuck Schroyer, SD States Attorneys Assn.
        Dick Tieszen, SD Sheriffs



MOTION:     DO PASS HB 1158

Moved by:    Michels
Second by:    Hanson
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Cutler, Deadrick (Thomas), Engels, Gillespie, Hanson, Hennies, Madsen, Murschel, O'Brien, Peterson (Jim), Michels, McCaulley

Excused:    Sebert

MOTION:     PLACE HB 1158 ON CONSENT CALENDAR

Moved by:    Madsen
Second by:    Hanson
Action:    Prevailed by voice vote.

         HB 1271: limit the use of irreconcilable differences as a ground for divorce.

Presented by:    Representative Daryl Christensen
Proponents:    Rob Regier, SD Family Council, Sioux Falls
        Dr. Victoria Gerhart, self, Sioux Falls
        Ed Irvin, Newhaven, Sioux Falls
        Steve Sibson, self, Sioux Falls
        Kitty Werthmann, Eagle Forum
Opponents:    Thomas Barnett Jr., State Bar Of SD
        Susan Randall, SD Coalition For Children
        Roger Tellinghuisen, SD Trial Lawyers Association
        Greg Brewers, SD Advocacy Network

MOTION:     AMEND HB 1271

1271jc
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section 1. No divorce may be granted for the cause of irreconcilable differences if the parties to the divorce are expecting a child or are parents to any child under eighteen years of age, unless the parties to the divorce undertake, within sixty days after the filing of the petition, counseling education classes focusing on the current and future potential negative impact on children of divorce. Each judicial district shall certify approved courses for parties required to participate in a course

under this section. Approved courses may include those provided by a public or private entity.

     Section 2. Any person providing the counseling education classes shall use curriculum that focuses specifically on the negative impact of divorce on children. The person providing the counseling education classes shall provide the participating party with a certificate of completion or a letter of verification or some other written documentation indicating successful completion of the counseling education classes. The person providing counseling education classes shall also provide to the party a list of resources for mental health counseling, marital counseling, child counseling, and other support services that may be available in the community to the party and the party's children.

     Section 3. Each party undertaking a counseling education class as required by section 1 of this Act is responsible for arranging for participation in the course and for payment of the costs of participation in the course.

     Section 4. An action for divorce or separate maintenance may not be heard, tried, or determined by the court until at least sixty days have elapsed from the completed service of the counseling education class required by section 1 of this Act.

     Section 5. The court may not require the counseling education classes prescribed by section 1 of this Act if the court finds any of the following:

             (1)    One of the parties has demonstrated physical or serious psychological abuse by the other party;

             (2)    A child of the marriage has demonstrated physical or serious psychological abuse by either of the parties;

             (3)    Substance abuse is an issue with one or more parties to the proceeding;

             (4)    A party to the marriage has committed adultery during the subject marriage and the other party requests that the parties not be required to participate in the counseling education classes otherwise required by this Act; or

             (5)    One of the parties to the marriage, at the time of the action, has been convicted of a felony."

Moved by:    Madsen
Second by:    Gillespie
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1271 AS AMENDED



Moved by:    Sebert
Second by:    Hennies
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION DEFER HB 1271 TO THE 36TH LEGISLATIVE DAY

Moved by:    Gillespie
Second by:    Engels
Action:    Prevailed by roll call vote.(8-5-0-0)

Voting Yes:    Cutler, Engels, Gillespie, Hanson, Madsen, Murschel, O'Brien, Michels

Voting No:    Deadrick (Thomas), Hennies, Peterson (Jim), Sebert, McCaulley

         HB 1273: allow emergency medical technicians to be included in peer review committees.

Presented by:    Representative Tim Rave
Proponents:    Dave Gerdes, SD State Medical Assn.
        Tom Dravland, Secretary Public Services
        Dave Hewitt, SDAHO

MOTION:     AMEND HB 1273

1273jb
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section 1. That chapter 36-4B be amended by adding thereto a NEW SECTION to read as follows:

     For the purposes of this Act, a peer review committee is one or more persons, including an emergency medical technician at any level as described in this chapter, acting as an administrative or medical committee of a licensed heath care facility or a licensed ambulance service, that engages in peer review activity. There is no monetary liability on the part of, and no cause of action for damages may arise against, any member of a peer review committee or against any consultant to that committee engaging in peer review activity as provided in this Act, if the committee member or consultant acts without malice, has made a reasonable effort to obtain the facts of the matter under consideration, and acts in a reasonable belief that the action taken is warranted by those facts. The provisions of this section do not affect the official immunity of an officer or employee of a public corporation.

     Section 2. That chapter 36-4B be amended by adding thereto a NEW SECTION to read as follows:

     The proceedings, records, reports, statements, minutes, or any other data whatsoever of any committee described in section 1 of this Act relating to peer review activities defined in section 4 of this Act, are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as provided in this section. No person in attendance at any meeting described in section 1 of this Act is required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny an emergency medical technician at any level access to, or use of, information upon which a decision regarding the person's staff privileges or employment are based. The prohibition relating to discovery of evidence does not apply to deny any person or the person's counsel in defense of an action against that person access to the materials covered under this section.

     Section 3. That chapter 36-4B be amended by adding thereto a NEW SECTION to read as follows:

     The provisions of section 2 of this Act do not apply to any observation made at the time of treatment by a health care professional present during a patient's treatment or to patient records prepared during the treatment and care rendered to a patient who is personally or by personal representative a party to an action or proceeding, the subject matter of which is the care and treatment of the patient. Furthermore, no member of any committee covered by section 1 of this Act who has participated in deliberations under that section involving the subject matter of the action, may testify as an expert witness for any party in any action for personal injury or wrongful death, the subject matter of which is the care and treatment of the patient. Notwithstanding membership on any committee covered by section 1 of this Act, a health care professional observing or participating in the patient's treatment and care may testify as a fact or expert witness concerning that treatment and care, but may not be required to testify as to anything protected by section 1 of this Act.

     Section 4. That chapter 36-4B be amended by adding thereto a NEW SECTION to read as follows:

     For the purposes of this Act, peer review activity is the procedure by which a peer review committee monitors, evaluates, and recommends actions to improve the delivery and quality of services within its respective facility, agency, and profession, including any recommendation, consideration of recommendations, action with regard to recommendations, and implementation of actions. Peer review activity and acts or proceedings undertaken or performed within the scope of the functions of a peer review committee include:

             (1)    Matters affecting employment and terms of employment of an emergency medical technician at any level by a health care facility or a licensed ambulance service;

             (2)    Matters affecting the membership and terms of membership in a health professional association composed of emergency medical technicians at any level, including decisions to suspend membership privileges, expel from membership, reprimand, or censure a member, or other disciplinary actions;

             (3)    Review and evaluation of qualifications, competency, character, experience, activities, conduct, or performance of an emergency medical technician at any level by a licensed health care facility or a licensed ambulance service; and

             (4)    Review of the quality, type, or necessity of services provided by any emergency medical technician at any level employed by a licensed health care facility or a licensed ambulance service."

Moved by:    Michels
Second by:    Cutler
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1273 AS AMENDED

Moved by:    Hennies
Second by:    Sebert
Action:    Prevailed by roll call vote.(10-1-2-0)

Voting Yes:    Cutler, Gillespie, Hanson, Hennies, Murschel, O'Brien, Peterson (Jim), Sebert, Michels, McCaulley

Voting No:    Engels

Excused:    Deadrick (Thomas), Madsen

         HB 1282: prohibit recovery based on claims resulting from weight gain, obesity, or any health conditions relating to weight gain, obesity, or cumulative consumption.

Presented by:    Representative Matt McCaulley
Proponents:    Mark Hollenbeck, SD Stockgrowers
        Brenda Forman, SD Assn. Of Cooperatives

The Chair deferred HB 1282 until February 9, 2004.

         HB 1292: implement the federal Indian Child Welfare Act.


Presented by:    Representative Ryan Olson
Proponents:    Representative Thomas Hennies

MOTION:     REMOVE HB 1292 FROM THE TABLE

Moved by:    Cutler
Second by:    Deadrick (Thomas)
Action:    Prevailed by roll call vote.(13-0-0-0)

Voting Yes:    Cutler, Deadrick (Thomas), Engels, Gillespie, Hanson, Hennies, Madsen, Murschel, O'Brien, Peterson (Jim), Sebert, Michels, McCaulley

MOTION:     AMEND HB 1292

0000rb
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section 1. If any person is arrested for a violation of §  32-23-1 and if the arresting officer has probable cause to believe that the driver's conduct directly endangered the life of any child under the age of thirteen, either in the driver's or in another motor vehicle, or in the immediate vicinity, the arresting officer shall request and the arrested driver shall submit to a withdrawal of blood or urine to determine the presence and concentration of alcohol or other drugs or substances.

     Section 2. Nothing in section 1 of this Act restricts the right of any person to an independent chemical analysis pursuant to subdivision 32-23-10(3).

     Section 3. No person may operate any motor vehicle either while driving under the influence or driving recklessly, if, by so doing, the driver's conduct directly endangers the life of any child under the age of thirteen, either in the driver's or in another motor vehicle, or in the immediate vicinity.

     A violation of this section is a separate Class 2 misdemeanor."

Moved by:    Deadrick (Thomas)
Second by:    Hennies
Action:    Prevailed by voice vote.

MOTION:     AMEND THE AMENDMENT

1292ra
     In the previously adopted amendment (0000rb), delete " Class 2 " and insert "Class 1".


Moved by:    Deadrick (Thomas)
Action:    Died for a lack of a second

MOTION:     DEFER HB 1292 UNTIL FEBRUARY 9, 2004

Moved by:    Gillespie
Second by:    Hennies
Action:    Was not acted on.

MOTION:     ADJOURN

Moved by:    Gillespie
Second by:    Cutler
Action:    Prevailed by voice vote.

Diane Mellan

____________________________

Committee Secretary
Matt McCaulley, Chair


../02070745.HJU
Page 1