Senate Journal 02/04/2005 1:00 PM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

EIGHTEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Friday, February 4, 2005

The Senate convened at 1:00 p.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Dodie Noordermeer, followed by the Pledge of Allegiance led by Senate page Karina Joens.

Roll Call: All members present except Sens. Duniphan, Tom Hansen, and Jim Peterson who were excused.

APPROVAL OF THE JOURNAL

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the seventeenth day.

All errors, typographical or otherwise, are duly marked in the temporary journal for correction.

And we hereby move the adoption of the report.

Respectfully submitted,

Lee Schoenbeck, Chair

Which motion prevailed and the report was adopted.

CONSIDERATION OF EXECUTIVE APPOINTMENTS

The Senate proceeded to the consideration of the executive reappointment of Harvey C. Jewett of Brown County, Aberdeen, South Dakota, to the South Dakota Board of Regents.

The question being "Does the Senate advise and consent to the executive reappointment of Harvey C. Jewett pursuant to the executive message as found on page 178 of the Senate Journal?"

And the roll being called:

Yeas 30, Nays 1, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Bartling; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Greenfield

Excused:
Apa; Duniphan; Hansen (Tom); Peterson (Jim)

So the question having received an affirmative vote of a majority of the members-elect, the President declared the appointment confirmed.

The Senate proceeded to the consideration of the executive appointment of Clint Waara of Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Board of Education.

The question being "Does the Senate advise and consent to the executive appointment of Clint Waara pursuant to the executive message as found on page 175 of the Senate Journal?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Greenfield; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the question having received an affirmative vote of a majority of the members-elect, the President declared the appointment confirmed.

The Senate proceeded to the consideration of the executive appointment of Barbara Everist of Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Board of Education.

The question being "Does the Senate advise and consent to the executive appointment of Barbara Everist pursuant to the executive message as found on page 174 of the Senate Journal?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Greenfield; Hanson (Gary); Hundstad; Kelly; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane)

Excused:
Duniphan; Hansen (Tom); Kloucek; Peterson (Jim); Two Bulls

So the question having received an affirmative vote of a majority of the members-elect, the President declared the appointment confirmed.

The Senate proceeded to the consideration of the executive appointment of Richard E. Brown of Minnehaha County, Sioux Falls, South Dakota, to the Game, Fish, and Parks Commission.

The question being "Does the Senate advise and consent to the executive appointment of Richard E. Brown pursuant to the executive message as found on page 172 of the Senate Journal?"

And the roll being called:

Yeas 31, Nays 0, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Greenfield; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Excused:
Duniphan; Hansen (Tom); Napoli; Peterson (Jim)

So the question having received an affirmative vote of a majority of the members-elect, the President declared the appointment confirmed.

COMMUNICATIONS AND PETITIONS

August 13, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 1-16H of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Patricia LeBrun, Pennington County, Rapid City, South Dakota, to the South Dakota Science and Technology Authority.

This appointment is effective immediately, and shall continue until August 8, 2010.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

August 13, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 1-16H of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed David Bozied, Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Science and Technology Authority.

This appointment is effective immediately, and shall continue until August 8, 2010.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

August 13, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 1-16H of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Thomas C. Adam, Hughes County, Pierre, South Dakota, to the South Dakota Science and Technology Authority.

This appointment is effective immediately, and shall continue until August 8, 2009.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

August 13, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 1-16H of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Casey Peterson, Pennington County, Rapid City, South Dakota, to the South Dakota Science and Technology Authority.

This appointment is effective immediately, and shall continue until August 8, 2009.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

November 5, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 1-16H of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Steve Zellmer, Pennington County, Rapid City, South Dakota, to the South Dakota Science and Technology Authority.

This appointment is effective immediately, and shall continue until August 8, 2008.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 210 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 212 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Eric H. Bogue, Chair

Also MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration SB 187 and 188 and returns the same with the recommendation that said bills do pass.

Respectfully submitted,
Jerry Apa, Chair

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration SB 142 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Dave Knudson, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 50 and 52 were delivered to his Excellency, the Governor, for his approval at 9:10 a.m., February 4, 2005.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 29 and 39 and finds the same correctly enrolled.

Respectfully submitted,
Lee Schoenbeck, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to return herewith SB 42 which has been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1011, 1012, 1038, 1155, 1163, 1168, 1169, and 1172 and HJR 1001 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 29 and 39 which have passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Bogue moved that when we adjourn today, we adjourn to convene at 1:00 p.m. on Saturday, February 5, the 19^th legislative day.

Which motion prevailed.

Yesterday, Sen. Adelstein announced his intention to reconsider the vote by which SB 126 lost.

Sen. Adelstein moved to reconsider the vote by which SB 126 lost.

The question being on Sen. Adelstein's motion to reconsider the vote by which SB 126 lost.

And the roll being called:

Yeas 15, Nays 15, Excused 5, Absent 0

Yeas:
Adelstein; Broderick; Dempster; Duenwald; Gant; Gray; Kelly; Kloucek; Knudson; Lintz; McCracken; McNenny; Olson (Ed); Smidt; Sutton (Duane)

Nays:
Abdallah; Bartling; Bogue; Earley; Greenfield; Hanson (Gary); Hundstad; Koetzle; Kooistra; Moore; Napoli; Nesselhuf; Schoenbeck; Sutton (Dan); Two Bulls

Excused:
Apa; Duniphan; Hansen (Tom); Koskan; Peterson (Jim)

So the motion not having received an affirmative vote of a majority of the members-elect, the President declared the motion lost.

SCR 4 Introduced by: Senators McNenny, Apa, Bogue, Duenwald, Gant, Gray, Koskan, Lintz, McCracken, Napoli, Olson (Ed), Peterson (Jim), and Schoenbeck and Representatives Brunner, Boomgarden, Halverson, Hanks, Haverly, Hills, Howie, Jensen, Klaudt, Krebs, McCoy, Murschel, Nelson, Olson (Ryan), Peters, Rhoden, and Turbiville

A CONCURRENT RESOLUTION, Requesting the USDA Forest Service to adopt the Healthy Forest Alternative to the Phase II Forest Plan Amendment for the Black Hills National Forest.

WHEREAS, catastrophic wildfires have burned more than 180,000 acres of the Black Hills since 1999, destroying homes, property, and forest resources and threatening communities and livelihoods; and

WHEREAS, mountain pine beetles have killed more than one million trees in the Black Hills since 1999, and further exacerbate the risk of wildfires; and

WHEREAS, the South Dakota Legislature has for the last three consecutive Legislative Sessions requested the USDA Forest Service to take more aggressive action to prevent such damage to the Black Hills National Forest; and

WHEREAS, the USDA Forest Service is developing the Phase II Amendment to the Land and Resource Management Plan, which will govern the long-term management of the Black Hills National Forest and is to address the risks of wildfires and pine beetles; and

WHEREAS, agencies of the State of South Dakota, the Governor, and many other interested parties have publicly concluded that the preferred alternative for the Phase II Amendment proposed by the USDA Forest Service is not an acceptable strategy for allaying these risks; and

WHEREAS, a coalition of citizens and multiple-use organizations has developed a new alternative to the Phase II Amendment, known as the Healthy Forest Alternative; and

WHEREAS, the Healthy Forest Alternative is consistent with the concerns addressed by the State of South Dakota, in its official comments to the Forest Service on the Phase II Amendment:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Eightieth Legislature of the State of South Dakota, the House of Representatives concurring therein, that the South Dakota Legislature supports the Healthy Forest Alternative as complementary to the interests of the state; and

BE IT FURTHER RESOLVED, that the South Dakota Legislature urges the USDA Forest Service to adopt the Healthy Forest Alternative as its selected alternative in the final version of the Phase II Amendment; and

BE IT FURTHER RESOLVED, that the South Dakota Legislature urges the South Dakota Congressional delegation to fully support the Healthy Forest Alternative.

Was read the first time and referred to the Committee on Agriculture and Natural Resources.

CONSIDERATION OF REPORTS OF COMMITTEES

Sen. Bogue moved that the reports of the Standing Committees on

Commerce on SB 121 as found on page 327 of the Senate Journal ; also

Education on SB 125 as found on page 310 of the Senate Journal ; also

Agriculture and Natural Resources on SB 152 as found on page 312 of the Senate Journal ; also

Commerce on SB 154 as found on page 326 of the Senate Journal ; also

Transportation on SB 175 as found on page 311 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

SECOND READING OF CONSENT CALENDAR ITEMS

SB 93: FOR AN ACT ENTITLED, An Act to authorize qualified dispositions in trust.

Was read the second time.

The question being "Shall SB 93 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 94: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding trusts.

Was read the second time.

The question being "Shall SB 95 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1081: FOR AN ACT ENTITLED, An Act to allow a school district to maintain permanent school records electronically rather than on microfilm.

Was read the second time.

The question being "Shall HB 1081 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 103: FOR AN ACT ENTITLED, An Act to authorize the funding of public transportation from the state highway fund.

Having had its second reading was up for consideration and final passage.

103oa

Sen. Broderick moved that SB 103 be amended as follows:

On page 1 of the printed bill, delete lines 4 to 13 , inclusive, and insert:

"Section 1. That § 10-12-6 be repealed.

10-12-6. The secretary of revenue and regulation may levy annually a sufficient tax, not to exceed one-tenth of one dollar per thousand dollars taxable valuation for any year upon each dollar of the taxable valuation of all taxable property in this state, to provide a special fund in the state treasury to be known as the state highway fund. All money received by the state treasurer pursuant to such levy shall be placed in such fund, to be used and expended under the direction of the Department of Transportation, for the purpose of constructing and maintaining highways and bridges in this state and paying the salaries and expenses of the Department of Transportation, as the same may be appropriated for these purposes by the Legislature.

Section 2. That chapter 31-2 be amended by adding thereto a NEW SECTION to read as follows:

There is created a special fund in the state treasury to be known as the state highway fund. All moneys in the fund shall be used and expended under the direction of the Department of Transportation, for the purpose of constructing and maintaining highways and bridges in this state, paying the salaries and expenses of the Department of Transportation, and funding public transportation, as the moneys may be appropriated for these purposes by the Legislature."

Which motion prevailed.

The question being "Shall SB 103 pass as amended?"

And the roll being called:

Yeas 29, Nays 3, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Bartling; Bogue; Broderick; Dempster; Duenwald; Gant; Gray; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Apa; Earley; Greenfield

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed.

The question being on the title.

Sen. Broderick moved that the title to SB 103 be amended as follows:

On page 1, line 2 of the printed bill, after " fund " insert "and to repeal certain obsolete provisions regarding the state highway fund".

Which motion prevailed and the title was so amended.

SB 100: FOR AN ACT ENTITLED, An Act to clarify the rule-making authority for the sales tax on food refund program.

Was read the second time.

100fa

Sen. Moore moved that SB 100 be amended as follows:

On page 1, line 8 of the printed bill, overstrike " fifty " and insert " seventy-five ".

Which motion lost.

The question being "Shall SB 100 pass?"

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Greenfield; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Moore

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 25: FOR AN ACT ENTITLED, An Act to revise the purposes for which the extraordinary litigation fund may be used.

Was read the second time.

The question being "Shall SB 25 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 123: FOR AN ACT ENTITLED, An Act to provide for an order of joint physical care over certain children whose parents exercise joint legal custody.

Was read the second time.

The question being "Shall SB 123 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 208: FOR AN ACT ENTITLED, An Act to authorize the Transportation Commission to establish higher maximum speed limits on divided four-lane highways in rural areas.

Was read the second time.

The question being "Shall SB 208 pass?"

And the roll being called:

Yeas 29, Nays 3, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bogue; Broderick; Dempster; Duenwald; Earley; Gant; Gray; Greenfield; Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane)

Nays:
Bartling; Kooistra; Two Bulls

Excused:
Duniphan; Hansen (Tom); Peterson (Jim)

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HJR 1001: A JOINT RESOLUTION, Proposing and submitting to the electors at the next general election an amendment to Article XXI of the Constitution of the State of South Dakota, relating to the definition of marriage.

Was read the first time and referred to the Committee on State Affairs.

HB 1011: FOR AN ACT ENTITLED, An Act to make certain provisions for a program of recoveries and fraud investigations in the Department of Social Services.

Was read the first time and referred to the Committee on Health and Human Services.

HB 1012: FOR AN ACT ENTITLED, An Act to establish certain penalties for the unauthorized acquisition or transfer of food stamp benefits.

Was read the first time and referred to the Committee on Health and Human Services.

HB 1038: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the responsibility of alcohol licensees that sell alcohol to underage people.

Was read the first time and referred to the Committee on Commerce.

HB 1155: FOR AN ACT ENTITLED, An Act to define liquefied petroleum gas equipment and appliances for purposes of product liability.

Was read the first time and referred to the Committee on Judiciary.

HB 1163: FOR AN ACT ENTITLED, An Act to allow Vietnam veterans to receive honorary high school diplomas.

Was read the first time and referred to the Committee on Education.

HB 1168: FOR AN ACT ENTITLED, An Act to revise the homestead exemption.

Was read the first time and referred to the Committee on Judiciary.

HB 1169: FOR AN ACT ENTITLED, An Act to clarify certain procedures for terminating or nonrenewing a teacher's contract.

Was read the first time and referred to the Committee on Education.

HB 1172: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the regulation of athletic trainers.

Was read the first time and referred to the Committee on Commerce.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

Sen. Bogue moved that HB 1002 and 1061 be deferred to Saturday, February 5, the 19^th legislative day.

Which motion prevailed.

SIGNING OF BILLS

The President publicly read the title to

SB 29: FOR AN ACT ENTITLED, An Act to provide the South Dakota risk pool with the ability to enter into certain provider contracts and to declare an emergency.

SB 39: FOR AN ACT ENTITLED, An Act to repeal the requirement for tuberculosis screening for school students and employees.

HB 1023: FOR AN ACT ENTITLED, An Act to repeal certain provisions regarding the required labeling of motor vehicle window film or glaze.

And signed the same in the presence of the Senate.

COMMEMORATION

SC 8 Introduced by: Senators Hundstad and Sutton (Duane) and Representatives Dennert, Elliott, Frost, and Novstrup

A LEGISLATIVE COMMEMORATION, Honoring Susan Wein for her professional dedication at Presentation College where she has been a professor for nineteen years.

WHEREAS, Susan Wein began her academic career at the University of South Dakota earning a Bachelor of Arts; then earned a masters degree from Northern State University in Guidance Counseling and a masters degree from the University of Minnesota in social work. She also earned the Burlington Northern Outstanding Faculty Member Award; and

WHEREAS, Susan continues to exemplify her expertise in her fields of learning as an active member of the National Association of Social Work, and in community involvement as a member of the Good Shepherd Lutheran Church in Aberdeen; and

WHEREAS, Susan continues to be active in the community through her efforts in the Church's Little Lambs Pre-school program as well as incorporating in her social concerns classes at Presentation College, the legislative process with one-on-one dialogue with area legislators, thus relaying the importance of the legislative process and community involvement; and

WHEREAS, Susan Wein also accompanies her students to the legislative session each year, with students testifying on certain bills during the committee process:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eightieth Legislature of the State of South Dakota, that Susan Wein is recognized and commended for her scholarly achievements and continuing community efforts and for remaining active in the legislative process through her lessons and visits.

Sen. Gant moved that the Senate do now adjourn, which motion prevailed and at 1:59 p.m. the Senate adjourned.

Patricia Adam, Secretary