Senate Journal 02/24/2005 2:00 PM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

THIRTY-THIRD DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, February 24, 2005

The Senate convened at 2:00 p.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Pastor Ruth Ann Loughry, followed by the Pledge of Allegiance led by Senate page Meghan Byrum.

Roll Call: All members present except Sen. Earley who was 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 thirty-second 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.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1067 and returns the same with the recommendation that said bill be amended as follows:

1067ca

On page 1, line 7 of the printed bill, overstrike " eleven " and insert " ten ".

On page 1 , line 7, delete " forty-four " and insert " ninety ".

On page 1 , line 13, delete " thirty-one " and insert " sixteen ".

On page 2 , line 2, delete " thirty- " and insert " nine ".

On page 2 , line 3, delete " three " .

On page 2 , line 8, delete " thirty-one " and insert " sixteen ".

On page 2 , after line 19, insert:

"Section 2. That § 13-37-35.1 be amended to read as follows:

13-37-35.1. Terms used in chapter 13-37 mean:

(1) "Level one disability," a mild disability;

(2) "Level two disability," a mental retardation or emotional disorder;

(3) "Level three disability," hearing impairment, deafness, visual impairment, deaf-blindness, orthopedic impairment, or traumatic brain injury;

(4) "Level four disability," autism;

(5) "Level five disability," multiple disabilities;

(5A) "Level six disability," prolonged assistance;

(6) "Index factor," is the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the Bureau of Labor Statistics of the United States Department of Labor for the year before the year immediately preceding the year of adjustment or three percent, whichever is less;

(7) "Local effort," is the amount of taxes payable each year, using a levy for the special education fund of a school district of one dollar and twenty-five cents per thousand dollars of taxable valuation;

(8) "Allocation for a student with a level one disability," for the school fiscal year beginning July 1, 2004, is $3,533.13. For each school year thereafter, the allocation for a student with a level one disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(9) "Allocation for a student with a level two disability," for the school fiscal year beginning July 1, 2004, is $8,277.21. For each school year thereafter, the allocation for a student with a level two disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(10) "Allocation for a student with a level three disability," for the school fiscal year beginning July 1, 2004, is $12,580.73. For each school year thereafter, the allocation for a student with a level three disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(11) "Allocation for a student with a level four disability," for the school fiscal year beginning July 1, 2004, is $12,001.80. For each school year thereafter, the allocation for a student with a level four disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(12) "Allocation for a student with a level five disability," for the school fiscal year beginning July 1, 2004, is $15,882.21. For each school year thereafter, the allocation for a student with a level five disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(12A) "Allocation for a student with a level six disability," for the school fiscal year beginning July 2004, is $8,122.23. For each school year thereafter, the allocation for a student with a level six disability shall be the previous fiscal year's allocation for such child increased by the lesser of the index factor or three percent;

(13) "Child count," is the number of students in need of special education or special education and related services according to criteria set forth in rules promulgated pursuant to §§ 13-37-1.1 and 13-37-46 submitted to the Department of Education in accordance with rules promulgated pursuant to § 13-37-1.1;

(14) "Average daily membership," the average number of kindergarten through twelfth grade pupils enrolled in all schools operated by the school district during the previous regular school year plus the average number of pupils for whom the district pays tuition;

(15) "Nonpublic school," a sectarian organization or entity which is accredited by the secretary of education for the purpose of instructing children of compulsory school age. This definition excludes any school that receives a majority of its revenues from public funds;

(16) "Nonpublic average daily membership," the average number of children under age sixteen who are approved for alternative instruction pursuant to § 13-27-2 during the previous school year plus:

(a) For nonpublic schools located within the boundaries of a public school district with an average daily membership of six hundred or more during the previous school year, the average number of kindergarten through twelfth grade pupils enrolled during the previous regular school year in all nonpublic schools located within the boundaries of the public school district;

(b) For nonpublic schools located within the boundaries of a public school district with an average daily membership of less than six hundred during the previous school year, the average number of resident kindergarten through twelfth grade pupils enrolled during the previous school year in all nonpublic schools located within the State of South Dakota;

(17) "Special education average daily membership," average daily membership plus nonpublic average daily membership;

(18) "Local need," an amount to be determined as follows:

(a) Multiply the special education average daily membership by 0.1013 and multiply the result by the allocation for a student with a level one disability;

(b) Multiply the number of students having a level two disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level two disability;

(c) Multiply the number of students having a level three disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level three disability;

(d) Multiply the number of students having a level four disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level four disability;

(e) Multiply the number of students having a level five disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level five disability;

(f) Multiply the number of students having a level six disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level six disability;

(g) Sum the results of (a) through (f);

(19) "Effort factor," the school district's special education tax levy in dollars per thousand divided by ~~$1.25~~ $1.20 . The maximum effort factor is 1.0. "

1067cta

On page 1, line 1 of the printed bill, after " fund " insert "and the special education tax levy".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1140 and returns the same with the recommendation that said bill be amended as follows:

1140cb

On page 1 of the House engrossed bill, delete line 6 , and insert:

"(2) Revise the calculation of adjusted average daily membership to include components of sparsity and distance education;".

On page 1 , line 9, after " that a " insert "high".

On page 1 , line 9, delete " district " .

On page 1 , line 10, after " education " insert "taking into consideration the distance between high schools".

On page 1 , line 10, delete " and " .

On page 1 , delete lines 11 and 12 , and insert:

"(5) Equalize other revenue through their inclusion in the state aid to education foundation program;".

On page 1 , between lines 12 and 13, insert:

"(6) Create a school report card with district information including both academic measures and current and projected financial conditions."

1140cta

On page 1, line 1 of the House engrossed bill, after " education " insert "and report".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1149 and returns the same with the recommendation that said bill be amended as follows:

1149cc

On the House Education Committee engrossed bill, delete everything after the enacting clause and insert:

"Section 1. The secretary of the Department of Education may enter into agreements with the appropriate parties from the state of North Dakota to establish an enrollment options program between South Dakota and North Dakota.

Section 2. Any agreement entered into pursuant to this Act shall specify the following:

(1) For students who are not residents of South Dakota, the enrollment options program applies only to a student whose resident school district borders South Dakota;

(2) If North Dakota sends more students to South Dakota than South Dakota sends to North Dakota, North Dakota will pay South Dakota an amount agreed upon for the excess number of students sent to South Dakota;

(3) If South Dakota sends more students to North Dakota than North Dakota sends to South Dakota, South Dakota will pay North Dakota an amount agreed upon for the excess number of students sent to North Dakota.

Section 3. Any agreement entered into pursuant to this Act shall specify the application procedures for the enrollment options program between South Dakota and North Dakota.

Section 4. Any agreement entered into pursuant to this Act shall specify the reasons for which an application for the enrollment options program between South Dakota and North Dakota may be denied.

Section 5. Any agreement entered into pursuant to this Act shall specify that a South Dakota school district is not responsible for transportation for any resident student attending school in North Dakota under the provisions of this Act. However, a South Dakota school district may, at its discretion, provide transportation services for such a student.

Section 6. Any agreement entered into pursuant to this Act may specify additional terms relating to any student in need of special education or special education and related services pursuant to chapter 13-37.

Section 7. For the purposes of state aid to education distributed pursuant to chapter 13-13, any student sent to South Dakota from North Dakota is included in the receiving school district's average daily membership.

Section 8. For the purposes of state aid to education distributed pursuant to chapter 13-13, any student sent to North Dakota from South Dakota may not be included in the resident school district's average daily membership.

Section 9. Any student whose resident school district does not receive state aid to education under the provisions of chapter 13-13 or 13-37 may not attend school in North Dakota unless the student's resident school district pays the State of South Dakota an amount equal to the per student allocation as defined in chapter 13-13 or 13-37 for each student sent to North Dakota.

Section 10. The Department of Education may promulgate rules pursuant to chapter 1-26 to establish procedures relating to the application process and the collection or payment of funds under the provisions of any agreement established pursuant to this Act."

1149cb

On the previously adopted amendment (1149cc), after Section 10, insert:

"Section 11. For fiscal years 2006, 2007, and 2008, any school district contiguous to the North Dakota border that receives less revenue under the terms of this Act than it would have otherwise received is entitled to a payment from the Department of Education to compensate for the difference. For fiscal year 2006, the payment shall equal seventy-five percent of the difference; for fiscal year 2007, the payment shall equal fifty percent of the difference; and for fiscal year 2008, the payment shall equal twenty-five percent of the difference."

1149cta

On page 1, line 1 of the House Education Committee engrossed bill, delete everything after " Act to " and insert "allow the Department of Education to enter into certain enrollment agreements with the State of North Dakota and to compensate certain school districts for lost revenue due to the agreements."

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB1170 and returns the same with the recommendation that said bill be amended as follows:

1170cf

On page 1, line 8 of the House engrossed bill, delete " instructor " and insert "provider".

On page 1 , line 10, delete " instructor " and insert "provider".

On page 1 , line 10, delete " an endorsement " and insert "a certificate".

On page 1 , line 11, delete " instructor " and insert "provider".

On page 1 , line 13, after " 1-26 " insert "defining a distance learning provider, and".

On page 1 , line 13, delete " instructor " and insert "provider".

On page 1 , line 14, delete " endorsement " and insert "certificate".

On page 1 , line 14, after " Education " insert "."

On page 1 , line 15, delete " authorizing the instructor to provide courses through distance learning. "

On page 2 , line 2, after " issuing " delete " the endorsement " and insert "a certificate".

On page 2 , line 2, after " for " delete " the endorsement " and insert "a certificate".

On page 2 , line 3, delete " endorsement " and insert "certification".

On page 2 , line 3, after " of " delete " the " .

On page 2 , line 4, delete " endorsement program " and insert "certification".

1170cta

On page 1, line 1 of the House engrossed bill, after " An Act to " insert "provide for the certification of distance learning providers and to".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1093, which was reconsidered, and returns the same with the recommendation that said bill be amended as follows:

1093ca

On page 1, line 8 of the printed bill, after " school " insert ", at the discretion of the nonpublic school,".

And that as so amended said bill do NOT pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1073 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Ed Olson, Chair

Also MR. PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration HB 1202 and returns the same with the recommendation that said bill be amended as follows:

1202fd

On page 2, line 4 of the House Transportation Committee engrossed bill, delete " of a salvage vehicle " and insert "of any salvage vehicle as defined in section 2 of this Act".

On page 2 , line 8, delete " , after repair and inspection of the vehicle, " .

And that as so amended said bill do pass.

Respectfully submitted,
Dick Kelly, Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1244 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1139 and returns the same with the recommendation that said bill be amended as follows:

1139tb

On page 2, after line 9 of the House State Affairs Committee engrossed bill, insert:

" Nothing in this section addresses the relationship between an electric utility and its customer under a proposed energy exchange contract, where the customer seeks status as a qualifying facility under the Public Utility Regulatory Policies Act of 1978, as defined by 18 CFR Part 292, Subpart B, as it existed on January 1, 2005. "

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1252 and returns the same with the recommendation that said bill be amended as follows:

1252tb

On page 1, after line 5 of the printed bill, insert:

"Section 2. That chapter 34A-8A be amended by adding thereto a NEW SECTION to read as follows:

The Department of Agriculture and the Department of Game, Fish and Parks shall submit any changes or amendments to any plan approved by the Legislature pursuant to § 34A-8A-8 for legislative approval before the changes or amendments may take effect."

1252tta

On page 1, line 1 of the printed bill, after " plan " insert "and to require that amendments to the plan be approved by the Legislature".

And that as so amended said bill do pass.

Respectfully submitted,
Jay Duenwald, Chair

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration HB 1118 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration HB 1248 and returns the same with the recommendation that said bill be amended as follows:

1248jd

On page 4, line 14 of the House Commerce Committee engrossed bill, after " rule. " insert " The provisions of § 51A-2-35 apply to records and examination reports required under this chapter. "

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration HB 1218 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Royal "Mac" McCracken, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 25, 26, 34, 51, 85, 100, 117, 135, 155, and 187 and finds the same correctly enrolled.

Respectfully submitted,
Lee Schoenbeck, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to transmit herewith HCR 1014 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1264 and 1265 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 143 which has been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 25, 26, 34, 51, 85, 100, 117, 135, 155, and 187 which have passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Duenwald moved that the Senate do not concur in House amendments to SB 96 and that a committee of three on the part of the Senate be appointed to meet with a like committee on the part of the House to adjust the differences between the two houses.

Which motion prevailed and the President announced as such committee Sens. Duniphan, Duenwald, and Dan Sutton.

Sen. Schoenbeck moved that the Senate do concur in House amendments to SB 171.

The question being on Sen. Schoenbeck's motion that the Senate do concur in House amendments to SB 171.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

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

Excused:
Earley

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and the amendments were concurred in.

Sen. Tom Hansen moved that the Senate do concur in House amendments to SB 179.

The question being on Sen. Hansen's motion that the Senate do concur in House amendments to SB 179.

And the roll being called:

Yeas 33, Nays 1, Excused 1, Absent 0

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

Nays:
Napoli

Excused:
Earley

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and the amendments were concurred in.

HCR 1013: A CONCURRENT RESOLUTION, Requesting the Congress of the United States to direct the Corps of Engineers to address and rectify the problems caused by the accumulation of sediment in the Missouri River main stem reservoirs.

Was read the second time.

Sen. Gray moved that the Senate do concur in HCR 1013 as found on page 579 of the House Journal.

The question being on Sen. Gray's motion that the Senate do concur in HCR 1013.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Earley

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1013 was concurred in.

Sen. Apa moved that the rules be suspended for the sole purpose of introducing, giving first reading, waiving committee referral, giving second reading and calendering a bill to provide for the appropriation and distribution of the excise tax on the gross receipts of personal communications system, wireless and cellular companies, to retroactively apply the appropriations and distribution of the excise tax, and to declare an emergency.

The question being on Sen. Apa's motion that the rules be suspended for the sole purpose of introducing, giving first reading, waiving committee referral, giving second reading and calendering a bill to provide for the appropriation and distribution of the excise tax on the gross receipts of personal communications system, wireless and cellular companies, to retroactively apply the appropriations and distribution of the excise tax, and to declare an emergency.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Earley

So the motion having received an affirmative vote of a two-thirds majority of the members- elect, the President declared the motion carried.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 222 Introduced by: Senator Apa and Representative Putnam

FOR AN ACT ENTITLED, An Act to provide for the appropriation and distribution of the excise tax on the gross receipts of personal communications system, wireless, and cellular companies, to retroactively apply the appropriations and distribution of the excise tax, and to declare an emergency.

Was read the first time.

Sen. Apa moved that SB 222 be placed to precede HB 1049 on today's calendar.

Which motion prevailed.

MOTIONS AND RESOLUTIONS

HCR 1014: A CONCURRENT RESOLUTION, Proclaiming October 7, 2005, as South Dakota Rodeo Association Day in the State of South Dakota.

Was read the first time.

The President announced the waiving of the committee referral and HCR 1014 was placed on the calendar of Friday, February 25, the 34^th legislative day.

Sen. Bogue moved that when we adjourn today, we adjourn to convene at 1:00 p.m. on Friday, February 25, the 34^th legislative day.

Which motion prevailed.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Judiciary on HB 1042 as found on page 603 of the Senate Journal ; also

Local Government on HB 1152 as found on page 602 of the Senate Journal ; also

Judiciary on HB 1222 as found on page 604 of the Senate Journal ; also

Health and Human Services on HB 1229 as found on page 605 of the Senate Journal ; also

State Affairs on HB 1233 as found on page 604 of the Senate Journal ; also

Local Government on HB 1240 as found on page 602 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

SECOND READING OF CONSENT CALENDAR ITEMS

Sen. Knudson moved that HB 1263 be deferred to the Consent Calendar of Tuesday, March 1, the 36^th legislative day.

Which motion prevailed.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 222: FOR AN ACT ENTITLED, An Act to provide for the appropriation and distribution of the excise tax on the gross receipts of personal communications system, wireless, and cellular companies, to retroactively apply the appropriations and distribution of the excise tax, and to declare an emergency.

Was read the second time.

The question being "Shall SB 222 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Earley

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

There being no objection, the Senate reverted to Order of Business No. 6.

REPORT OF CONFERENCE COMMITTEE

MR. PRESIDENT:

The Conference Committee respectfully reports that it has considered SB 12 and the amendments thereto made by the House, and the disagreement of the two houses thereon, and recommends that the Senate do concur with the House amendments.

Respectfully submitted,                         Respectfully submitted,
Sean M. O'Brien                                Gene G. Abdallah
House Committee Chair                        Senate Committee Chair

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1264: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the Constitutional Revision Commission.

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

HB 1265: FOR AN ACT ENTITLED, An Act to provide for the redistricting of boards of county commissioners under certain circumstances and to declare an emergency.

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

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1049: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the permitting and the regulation of shooting preserves and to declare an emergency.

Was read the second time.

The question being "Shall HB 1049 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Earley

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

HB 1194: FOR AN ACT ENTITLED, An Act to require notification to certain retail licensees of prohibited alcohol sales to persons below the age of twenty-one prior to any subsequent violation.

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

1194ja

Sen. Ed Olson moved that HB 1194 be further amended as follows:

On page 2, line 11 of the House Judiciary Committee engrossed bill, delete " A violation " and insert " Multiple violations ".

On page 2 , line 13, delete " a " and insert " any ".

On page 2 , line 14, delete " first " and insert " single ".

Which motion prevailed.

The question being "Shall HB 1194 pass as amended?"

And the roll being called:

Yeas 27, Nays 7, Excused 1, Absent 0

Yeas:
Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Koetzle; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Abdallah; Adelstein; Gant; Knudson; Kooistra; Koskan; Smidt

Excused:
Earley

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.

Sen. Bogue moved that the Senate do now recess until 3:15 p.m., which motion prevailed and at 3:00 p.m., the Senate recessed.

RECESS

The Senate reconvened at 3:15 p.m., the President presiding.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

(continued)

HB 1018: FOR AN ACT ENTITLED, An Act to make an appropriation from the coordinated soil and water conservation fund to the State Conservation Commission.

Was read the second time.

The question being "Shall HB 1018 pass?"

And the roll being called:

Yeas 26, Nays 7, Excused 2, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Greenfield; Hansen (Tom); Kelly; Knudson; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane)

Nays:
Hanson (Gary); Hundstad; Koetzle; Moore; Nesselhuf; Peterson (Jim); Two Bulls

Excused:
Earley; Kloucek

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

HB 1028: FOR AN ACT ENTITLED, An Act to make an appropriation to support students participating in the South Dakota Opportunity Scholarship program during the spring 2005 term and in fiscal year 2006 and to declare an emergency.

Was read the second time.

Sen. Bogue moved that HB 1028 be placed to follow HB 1056 on today's calendar.

Which motion prevailed.

HB 1052: FOR AN ACT ENTITLED, An Act to revise the appropriation for the design and construction of certain correctional facilities and to declare an emergency.

Was read the second time.

The question being "Shall HB 1052 pass?"

And the roll being called:

Yeas 29, Nays 3, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Koetzle; Moore; Nesselhuf

Excused:
Earley; Knudson; Olson (Ed)

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

HB 1053: FOR AN ACT ENTITLED, An Act to make an appropriation to the Department of Education to reimburse certain school districts for consolidation incentives.

Was read the second time.

The question being "Shall HB 1053 pass?"

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

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

Nays:
Moore

Excused:
Earley; Knudson; Olson (Ed)

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

HB 1056: FOR AN ACT ENTITLED, An Act to make an appropriation for costs related to suppression of wildfires in the state and to declare an emergency.

Was read the second time.

The question being "Shall HB 1056 pass?"

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

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

Nays:
Moore

Excused:
Earley; Knudson; Olson (Ed)

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

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

1028cb

Sen. Bogue moved that HB 1028 be amended as follows:

On page 1 of the printed bill , delete lines 11 to 16 , inclusive, and insert:.

"Section 2. That § 4-5-29.2 be amended to read as follows:

4-5-29.2. Pursuant to S.D. Const., Art. XII, § 6, the state investment officer shall determine the market value of the education enhancement trust fund as of December 31, 2003, and each calendar year thereafter less the investment expenses transferred pursuant to § 4-5-30. The state investment officer shall calculate an amount equal to four percent of that market value, without invading principal, as eligible for distribution. For the purpose of this section, the term, principal, means the sum of all contributions to the fund. Beginning with the distribution in fiscal year 2007, the market value shall be determined by adding the market value of the trust fund at the end of the sixteen most recent calendar quarters as of December thirty-first, and dividing the sum by sixteen. Upon notice of that amount by the state investment officer, the state treasurer shall transfer the amount from the education enhancement trust fund to the state general fund as soon as practicable after July first of the next fiscal year. After July first of each fiscal year, the state treasurer shall transfer $5,000,000, or so much thereof as may be necessary to finance scholarship awards pursuant to § 13-55-33 for the current fiscal year, from the state general fund to the South Dakota opportunity scholarship fund.

Section 3. That § 13-55-33 be amended to read as follows:

13-55-33. One-half of the annual scholarship award shall be paid to public institutions on behalf of eligible students there enrolled or directly to eligible students enrolled at nonpublic institutions at the beginning of the fall semester and the other half shall be paid at the beginning of the spring semester. The amount of the annual award shall be as follows:

(1) One thousand dollars for the first year of attendance;

(2) One thousand dollars for the second year of attendance;

(3) One thousand dollars for the third year of attendance;

(4) ~~Two~~ One thousand dollars for the fourth year of attendance.

If, in any year, the total funds available to finance the scholarship awards are insufficient to permit each eligible recipient to receive the full amount provided in this section, the available moneys shall be prorated and distributed to each recipient in proportion to the entitlement contemplated by this section. The total amount of the scholarship may not exceed ~~five~~ four thousand dollars.

Section 4. That § 13-55-35 be amended to read as follows:

13-55-35. The South Dakota opportunity scholarship fund is created in the state treasury. The ~~Board of Regents may allocate funds~~ fund may receive funds appropriated by the Legislature or funds generated by gifts, donations, grants, or endowments for the purposes of §§ 13-55-30 to 13-55-36, inclusive, and the Board of Regents may allocate such funds to students qualifying pursuant to § 13-55-31. "

Sen. Moore requested a roll call vote.

Which request was supported.

The question being on Sen. Bogue's motion that HB 1028 be amended.

And the roll being called:

Yeas 25, Nays 9, Excused 1, Absent 0

Nays:
Hanson (Gary); Hundstad; Kloucek; Koetzle; Moore; Nesselhuf; Peterson (Jim); Sutton (Dan); Two Bulls

Excused:
Earley

So the motion having received an affirmative vote of a majority of the members present, the President declared the motion carried.

The question being "Shall HB 1028 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Earley

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

The question being on the title.

Sen. Bogue moved that the title to HB 1028 be amended as follows:

On page 1, line 1 of the printed bill, delete everything after " to " and insert "make an appropriation to fund the South Dakota opportunity scholarships, to provide for long-term funding of the scholarships, to revise certain scholarship provisions, and to declare an emergency."

On page 1 , delete lines 2 and 3 .

Which motion prevailed and the title was so amended.

Sen. Bogue moved that HB 1095 and 1215 be deferred to Friday, February 25, the 34^th legislative day.

Which motion prevailed.

Sen. Bogue moved that HB 1166 and 1249 be deferred to Monday, February 28, the 35^th legislative day.

Which motion prevailed.

HB 1150: FOR AN ACT ENTITLED, An Act to appropriate money for the Northern Crops Institute.

Was read the second time.

The question being "Shall HB 1150 pass?"

And the roll being called:

Yeas 27, Nays 4, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Koetzle; Koskan; Lintz; McCracken; McNenny; Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Kloucek; Kooistra; Moore; Napoli

Excused:
Earley; Knudson; Nesselhuf; Olson (Ed)

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

HB 1154: FOR AN ACT ENTITLED, An Act to limit municipal annexation near regional airport authorities.

Was read the second time.

The question being "Shall HB 1154 pass as amended?"

And the roll being called:

Yeas 31, Nays 0, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Excused:
Earley; Knudson; Nesselhuf; Olson (Ed)

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 1214: FOR AN ACT ENTITLED, An Act to make an appropriation to fund sales tax on food refunds.

Was read the second time.

The question being "Shall HB 1214 pass?"

And the roll being called:

Yeas 24, Nays 7, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Hansen (Tom); Hanson (Gary); Kelly; Lintz; McCracken; McNenny; Napoli; Nesselhuf; Peterson (Jim); Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Greenfield; Hundstad; Kloucek; Kooistra; Koskan; Moore; Schoenbeck

Excused:
Earley; Knudson; Koetzle; Olson (Ed)

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

There being no objection, the Senate reverted to Order of Business No. 4.

COMMUNICATIONS AND PETITIONS

February 24, 2005

Mr. President and Members of the Senate:

I have the honor to inform you that on February 23, 2005, I approved Senate Bills 41, 45, 61, 68, 73, 77, and 82, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

There being no objection, the Senate proceeded to Order of Business No. 7.

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to inform your honorable body that the House has appointed Reps. Schafer, Hennies, and Halverson as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 96.

Also MR. PRESIDENT:

I have the honor to inform your honorable body that the House has concurred in Senate amendments to HB 1234.

Respectfully,
Karen Gerdes, Chief Clerk

SIGNING OF BILLS

The President publicly read the title to

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

SB 26: FOR AN ACT ENTITLED, An Act to provide monetary penalties for failure of tobacco distributors and wholesalers to comply with certain cigarette regulations.

SB 34: FOR AN ACT ENTITLED, An Act to make an additional appropriation to construct a thermophilic anaerobic manure digestion system for the South Dakota Agricultural Experiment Station and to declare an emergency.

SB 51: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding medicare supplement policies.

SB 85: FOR AN ACT ENTITLED, An Act to modify certain provisions relating to the charging of employers for the payment of unemployment insurance benefits.

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

SB 117: FOR AN ACT ENTITLED, An Act to provide for the development and implementation of certain animal identification programs to maintain animal health and ensure the safety of the food supply.

SB 135: FOR AN ACT ENTITLED, An Act to increase the promotional fee on wheat.

SB 155: FOR AN ACT ENTITLED, An Act to specifically exempt certain political subdivisions from the imposition of the sales and use tax.

SB 187: FOR AN ACT ENTITLED, An Act to make an appropriation to fund tax refunds for elderly and disabled persons.

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

HB 1258: FOR AN ACT ENTITLED, An Act to revise the definition of an abused or neglected child.

And signed the same in the presence of the Senate.

Sen. Moore moved that the Senate do now adjourn, which motion prevailed and at 4:17 p.m. the Senate adjourned.

Patricia Adam, Secretary