Senate Journal 02/25/2005 1:00 PM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

THIRTY-FOURTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Friday, February 25, 2005

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

The prayer was offered by the Chaplain, Pastor Harvey Friez, followed by the Pledge of Allegiance led by Senate page Kalyn McNenny.

Roll Call: All members present except Sens. Greenfield, Kloucek, and Two Bulls 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 thirty-third 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.

HONORED GUESTS

The President introduced Jessica Callahan from Pierre who is the South Dakota 2005 Boys and Girls Club Youth of the Year.

CONSIDERATION OF REPORT OF CONFERENCE COMMITTEE

Sen. Abdallah moved that the report of the Conference Committee on SB 12 as found on page 630 of the Senate Journal be adopted.

The question being on Sen. Abdallah's motion that the report of the Conference Committee on SB 12 be adopted.

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

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

Excused:
Greenfield; Kloucek; Two Bulls

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and the report was adopted.

COMMUNICATIONS AND PETITIONS

February 25, 2005

Mr. President and Members of the Senate:

I have the honor to inform you that on February 24, 2005, I approved Senate Bills 106, 124, 134, 150, and 152, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1180 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1142 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 Taxation respectfully reports that it has had under consideration HB 1122 and returns the same with the recommendation that said bill be amended as follows:

1122fb

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

"Section 1. That section 2 of House Bill 1261 as previously enacted by the 2005 South Dakota Legislature be amended to read as follows:

For the purposes of this Act, the term, new business facility, means a new building or structure or the expansion of an existing building or structure , including a power generation facility, the construction of which is subject to the contractor's excise tax pursuant to chapter 10-46A or 10-46B. A new business facility does not include any building or structure:

(1) Used predominantly for the sale of products at retail, other than the sale of electricity at retail, to individual consumers;

(2) Used predominantly for residential housing or transient lodging;

(3) Used predominantly to provide health care services; or

(4) That is not subject to ad valorem real property taxation or equivalent taxes measured by gross receipts.

Section 2. That § 10-45B-6 be amended to read as follows:

10-45B-6. Any person desiring to claim a refund pursuant to ~~§ 10-45B-2~~ this chapter shall apply for a permit from the secretary at least thirty days prior to ~~commencement of the project~~ the construction date. However, any project with a construction date between February 1, 2005, and July 1, 2005, that would otherwise qualify for a refund shall apply for a permit by August 1, 2005 . The application for a permit shall be submitted on a form prescribed by the secretary. A separate application shall be made and submitted for each project. Upon approval of the application, the secretary shall issue a permit entitling the applicant to submit refund claims as provided by §§ 10-45B-7 and 10-45B-8. Such permit or refund claims are not assignable or transferable except as collateral or security pursuant to chapter 57A-9. "

1122ftb

On page 1, line 1 of the House Taxation Committee engrossed bill, delete everything after " Act to " and insert "provide certain contractor's excise, sales, and use tax refunds."

On page 1 , delete line 2 .

And that as so amended said bill do pass.

Respectfully submitted,
Dave Knudson, Chair

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration HJR 1001 and HB 1262 and returns the same with the recommendation that said bill and resolution do pass.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1261 and returns the same with the recommendation that said bill be amended as follows:

1261ob

On page 2, line 5 of the House State Affairs Committee engrossed bill, after " government, " insert " political subdivision of any state, ".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration the nomination of Jan Nicolay of Lake County, Chester, South Dakota, to the South Dakota Board of Education and returns the same with the recommendation that the Senate advise and consent to the confirmation of said appointment.

Respectfully submitted,
Eric H. Bogue, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1226 and returns the same with the recommendation that said bill be amended as follows:

1226rb

On page 1, line 15 of the House engrossed bill, delete " or an apparent Indian child in need of supervision pursuant to § 26-8B-3 " .

On page 3 , line 1, after " Interior " insert "and to the area director for the Bureau of Indian Affairs".

On page 3 , line 1, delete " has " and insert "have".

On page 3 , line 17, after " affiliation " insert ", if known,".

On page 4 , delete lines 8 and 9 , and insert:

"(e) If the petition alleges the child to be an abused or neglected child, a statement that the termination of parental or custodial rights is a possible remedy under the proceedings;".

On page 6 , line 1, delete " § 1912 " and insert " § 1901".

And that as so amended said bill do pass.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

The Committee on Government Operations and Audit respectfully reports that it has had under consideration HB 1005 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Government Operations and Audit respectfully reports that it has had under consideration HB 1004 and returns the same with the recommendation that said bill be amended as follows:

1004mc

On page 1, line 7 of the House Government Operations and Audit Committee engrossed bill, after " government. " insert "The commissioner of the Bureau of Finance and Management shall provide condition statements when requested by a legislative committee."

On page 1 , after line 7, insert:

"Section 2. That chapter 4-7 be amended by adding thereto a NEW SECTION to read as follows:

For the purposes of this chapter, a condition statement is a document that identifies a fund's beginning balance, receipts, disbursements, and ending balance for each of the last two concluded fiscal years and that identifies a fund's beginning balance, projected receipts, projected disbursements, and ending balance for the current fiscal year and the next fiscal year. The fund's ending balance, for the current fiscal year and the next fiscal year, shall represent the ending cash balance of the fund reduced by any money that is reappropriated to the next fiscal year along with any other commitments to be funded from the ending cash balance. Condition statement forms, prescribed by the Bureau of Finance and Management, shall be uniform."

1004md

In the previously adopted amendment (1004mc), in the first paragraph, after "committee" insert "or a legislative committee chair".

And that as so amended said bill do pass.

Respectfully submitted,
Jason M. Gant, Chair

Also MR. PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration HB 1245 and returns the same with the recommendation that said bill do pass.

Respectfully submitted,
Thomas A. Dempster, Chair

Also MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1025, 1051, 1158, and 1220 and returns the same with the recommendation that said bills do pass.

Respectfully submitted,
Jerry Apa, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 23, 24, 78, 83, 116, 163, 171, and 179 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 2, 53, 154, 188, and 217 which have been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HCR 1016 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 23, 24, 78, 83, 116, and 163 which have passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

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 second time.

Sen. Bogue moved that the Senate do concur in HCR 1014 as found on page 592 of the House Journal.

The question being on Sen. Bogue's motion that the Senate do concur in HCR 1014.

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

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

Nays:
Kooistra

Excused:
Greenfield; Kloucek; Two Bulls

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1014 was concurred in.

Sen. Knudson moved that the Senate do concur in House amendments to SB 143.

Sen. McNenny moved as a substitute motion that the Senate do not concur in House amendments to SB 143 and that no committee be appointed.

The question being on Sen. McNenny's motion that the Senate do not concur in House amendments to SB 143 and that no committee be appointed.

And the roll being called:

Yeas 15, Nays 17, Excused 3, Absent 0

Yeas:
Apa; Bartling; Bogue; Duenwald; Hansen (Tom); Hanson (Gary); Hundstad; Koetzle; Koskan; Lintz; McNenny; Moore; Napoli; Nesselhuf; Peterson (Jim)

Nays:
Abdallah; Adelstein; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Kelly; Knudson; Kooistra; McCracken; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane)

Excused:
Greenfield; Kloucek; Two Bulls

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

The question being on Sen. Knudson's motion that the Senate do concur in House amendments to SB 143.

And the roll being called:

Yeas 17, Nays 15, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Hansen (Tom); Kelly; Knudson; Kooistra; McCracken; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan)

Nays:
Apa; Bartling; Bogue; Duenwald; Hanson (Gary); Hundstad; Koetzle; Koskan; Lintz; McNenny; Moore; Napoli; Nesselhuf; Peterson (Jim); Sutton (Duane)

Excused:
Greenfield; Kloucek; Two Bulls

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

Sen. Bogue moved that the Senate do not concur in House amendments to SB 143 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. Dan Sutton, Knudson, and McNenny.

HCR 1016: A CONCURRENT RESOLUTION, Urging Congress to fund the Sioux Nation Cultural Center.

Was read the first time.

The President announced the waiving of committee referral and HCR 1016 was placed on the calendar of Monday, February 28, the 35^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Education on HB 1067 as found on page 616 of the Senate Journal ; also

Agriculture and Natural Resources on HB 1139 as found on page 623 of the Senate Journal ; also

Education on HB 1140 as found on page 619 of the Senate Journal ; also

Education on HB 1149 as found on page 619 of the Senate Journal ; also

Education on HB 1170 as found on page 621 of the Senate Journal ; also

Transportation on HB 1202 as found on page 622 of the Senate Journal ; also

Commerce on HB 1248 as found on page 624 of the Senate Journal ; also

Agriculture and Natural Resources on HB 1252 as found on page 623 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

Sen. Duane Sutton moved that the word "not" be stricken from the report of the Committee on Education on HB 1093 as found on page 622 of the Senate Journal and that the bill be placed on the calendar of Monday, February 28, the 35^th legislative day.

The question being on Sen. Sutton's motion that the word "not" be stricken from the report of the Committee on Education on HB 1093 and that the bill be placed on the calendar of Monday, February 28, the 35^th legislative day.

And the roll being called:

Yeas 23, Nays 9, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Hansen (Tom); Hundstad; Kelly; Knudson; Koskan; Lintz; McCracken; McNenny; Napoli; Schoenbeck; Smidt; Sutton (Duane)

Nays:
Bartling; Hanson (Gary); Koetzle; Kooistra; Moore; Nesselhuf; Olson (Ed); Peterson (Jim); Sutton (Dan)

Excused:
Greenfield; Kloucek; Two Bulls

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried, and HB 1093 was placed on the calendar of Monday, February 28, the 35^th legislative day.

SECOND READING OF CONSENT CALENDAR ITEMS

Sen. McNenny requested that HB 1240 be removed from the Consent Calendar.

HB 1118: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the interest rate on past due moneys.

Was read the second time.

The question being "Shall HB 1118 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Greenfield; Kloucek; Two Bulls

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 1244: FOR AN ACT ENTITLED, An Act to allow certain National Guard and armed forces reserve members to obtain resident hunting and fishing licenses.

Was read the second time.

The question being "Shall HB 1244 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Greenfield; Kloucek; Two Bulls

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 HOUSE BILLS AND JOINT RESOLUTIONS

Sen. Bogue moved that HB 1212, 1215, 1222, and 1233 be deferred to Monday, February 28, the 35^th legislative day.

Which motion prevailed.

HB 1203: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the distribution of the tax imposed on financial institutions.

Was read the second time.

1203ta

Sen. Knudson moved that HB 1203 be further amended as follows:

On page 1, line 6 of the House Taxation Committee engrossed bill, after " § 10-43-76 " insert " and section 2 of this Act ".

On page 2 , line 4, after " reorganization. " insert " Any amount received by the county and taxing subdivisions pursuant to this section may upon receipt be used to support the functions of such taxing subdivision. "

On page 2 , after line 4, insert:

"Section 2. That chapter 10-43 be amended by adding thereto a NEW SECTION to read as follows:

A financial institution may deposit with the secretary of revenue and regulation an amount determined by the financial institution to be applied toward the future tax liability of the financial institution under this chapter to the extent of the share of the tax the state would be required to remit to the county. The secretary of revenue and regulation shall remit, as provided in § 10-43-76, the amount of the deposit to the county or counties where the financial institution does business. The secretary of revenue and regulation shall record any deposit received pursuant to this section as a credit toward the future tax liability of the financial institution. No interest may accrue on any deposit received pursuant to this section.

If any amount deposited pursuant to this section is not applied to the financial institution's tax liability under this chapter within ten years of the date of deposit, the secretary of revenue and regulation shall refund the amount of any remaining deposit to the financial institution.".

Which motion prevailed.

The question being "Shall HB 1203 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Greenfield; Kloucek; Two Bulls

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 1095: FOR AN ACT ENTITLED, An Act to provide for a drug screening program for certain facilities providing patient or resident care or supervision.

Was read the second time.

1095ji

Sen. Moore moved that HB 1095 be further amended as follows:

On page 1, line 8 of the House engrossed bill, after " Center " insert "or the South Dakota State Veterans' Home".

On page 1 , line 11, after " Center " insert "or the South Dakota State Veterans' Home".

On page 2 , line 2, after " Developmental Center " insert "or the South Dakota State Veterans' Home".

On page 3 , line 2, after " Developmental Center " insert "or the South Dakota State Veterans' Home".

On page 3 , line 5, after " Developmental Center " insert "or the South Dakota State Veterans' Home".

Which motion prevailed.

The question being "Shall HB 1095 pass as amended?"

And the roll being called:

Yeas 25, Nays 6, Excused 4, Absent 0

Yeas:
Adelstein; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Knudson; Koetzle; Kooistra; Lintz; McCracken; McNenny; Moore; Napoli; Peterson (Jim); Smidt; Sutton (Dan)

Nays:
Abdallah; Koskan; Nesselhuf; Olson (Ed); Schoenbeck; Sutton (Duane)

Excused:
Apa; Greenfield; Kloucek; Two Bulls

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 HB 1229 be immediately considered.

Which motion prevailed and HB 1229 was up for immediate consideration.

HB 1229: FOR AN ACT ENTITLED, An Act to require standards for certain family day care providers.

Was read the second time.

1229xa

Sen. Apa moved that HB 1229 be further amended as follows:

On page 3, after line 10 of the Senate Health and Human Services Committee engrossed bill, insert:

"Section 4. There will be appropriated one hundred fifty thousand dollars and five FTEs for enforcement of the Act."

Sen. Bogue moved the previous question.

Which motion prevailed.

Sen. Moore requested a roll call vote.

Which request was supported.

The question being on Sen. Apa's motion that HB 1229 be further amended.

And the roll being called:

Yeas 17, Nays 15, Excused 3, Absent 0

Yeas:
Apa; Bartling; Bogue; Duenwald; Duniphan; Earley; Hansen (Tom); Hanson (Gary); Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Peterson (Jim); Schoenbeck; Sutton (Duane)

Nays:
Abdallah; Adelstein; Broderick; Dempster; Gant; Gray; Hundstad; Kelly; Knudson; Koetzle; Kooistra; Nesselhuf; Olson (Ed); Smidt; Sutton (Dan)

Excused:
Greenfield; Kloucek; Two Bulls

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

Sen. Koskan moved the previous question.

Which motion prevailed.

The question being "Shall HB 1229 pass as amended?"

And the roll being called:

Yeas 14, Nays 17, Excused 4, Absent 0

Yeas:
Abdallah; Adelstein; Broderick; Dempster; Earley; Gant; Kelly; Knudson; Koetzle; Kooistra; Nesselhuf; Olson (Ed); Smidt; Sutton (Dan)

Nays:
Apa; Bartling; Bogue; Duenwald; Duniphan; Gray; Hansen (Tom); Hanson (Gary); Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Peterson (Jim); Schoenbeck; Sutton (Duane)

Excused:
Greenfield; Hundstad; Kloucek; Two Bulls

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

Sen. Bogue moved that HB 1042 and 1152 be deferred to Monday, February 28, the 35^th legislative day.

Which motion prevailed.

There being no objection, the Senate reverted 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 concurred in Senate amendments to HB 1160.

Also MR. PRESIDENT:

I have the honor to inform your honorable body that the House has adopted the report of the Conference Committee on SB 12.

Respectfully,
Karen Gerdes, Chief Clerk

SIGNING OF BILLS

The President publicly read the title to

SB 23: FOR AN ACT ENTITLED, An Act to include officers of the Federal Protective Service and United States Postal Inspection Service in the definition of a federal law enforcement officer.

SB 24: FOR AN ACT ENTITLED, An Act to condition certification of nonparticipating manufacturers selling tobacco products upon provision of consent to be sued in state courts for enforcement of tobacco statutes.

SB 78: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the taxes electric cooperatives pay to certain municipalities.

SB 83: FOR AN ACT ENTITLED, An Act to revise the seller's property condition disclosure statement.

SB 116: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the Richard Hagen-Minerva Harvey Scholarship Program.

SB 163: FOR AN ACT ENTITLED, An Act to authorize certain multiple employer trusts.

SB 171: FOR AN ACT ENTITLED, An Act to prohibit certain officials from voting if a conflict of interest exists.

SB 179: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the practice of occupational therapy.

HB 1098: FOR AN ACT ENTITLED, An Act to clarify certain provisions related to the terms of conservation easements.

HB 1188: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding amounts payable under reinsurance contracts in liquidation proceedings of insurers.

HB 1197: FOR AN ACT ENTITLED, An Act to continue certain restrictions on the use of artificial lights to hunt or locate wild animals.

HB 1228: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding unemployment insurance.

And signed the same in the presence of the Senate.

COMMEMORATIONS

SC 18 Introduced by: Senators Kloucek and Moore and Representatives Putnam, Gassman, and Jerke

A LEGISLATIVE COMMEMORATION, Recognizing the Menno Pioneer Power Show.

WHEREAS, the 19^th annual Menno Pioneer Power Show will be held in Menno, South Dakota, on September 24 and 25, 2005; and

WHEREAS, the show will feature the historic Allis Chalmers tractor line, the Maytag stationary engine, and the Buick car line; and

WHEREAS, events will include an antique tractor pull, two antique car and tractor parades, steam engine plowing and threshing, corn chopping, corn cutting and binding, and a mini-rod tractor pull; and

WHEREAS, the Menno Pioneer Power Show also includes a flea market and crafts fair, a toy show, and a pancake and sausage breakfast and lunch sponsored by the Menno Community Club:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eightieth Legislature of the State of South Dakota, that the Menno Pioneer Power Show Committee, the Menno Community Club, and the entire Menno community be commended for all their hard work and congratulated for a job well done.

Sen. Dan Sutton moved that the Senate do now adjourn, which motion prevailed and at 3:00 p.m. the Senate adjourned.

Patricia Adam, Secretary