Senate Journal 03/01/2005 11:00 AM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

THIRTY-SIXTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, March 1, 2005

The Senate convened at 11:00 a.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Pastor David Zellmer, followed by the Pledge of Allegiance led by Senate page Sara McGirr.

Roll Call: All members present except Sen. Kloucek 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-fifth 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 APPOINTMENT

The Senate proceeded to the consideration of the executive reappointment of James D. Sheridan of Beadle County, Huron, South Dakota, to the South Dakota Board of Pardons and Paroles.

The question being "Does the Senate advise and consent to the executive appointment of James D. Sheridan pursuant to the executive message as found on page 381 of the Senate Journal?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; 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); Two Bulls

Excused:
Kloucek

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

CONSIDERATION OF REPORT OF COMMITTEE

Sen. Duenwald moved that the report of the Conference Committee on SB 96 as found on page 672 of the Senate Journal be adopted.

The question being on Sen. Duenwald's motion that the report of the Conference Committee on SB 96 be adopted.

And the roll being called:

Yeas 32, Nays 2, Excused 1, Absent 0

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

Nays:
Moore; Smidt

Excused:
Kloucek

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

EXECUTIVE VETOES AND RECOMMENDATIONS

March 1, 2005

Honorable Dennis Daugaard
President of the Senate
State Capitol
500 E. Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

I hereby return Senate Bill 99 and VETO the same. It is "An Act to permit financial institutions to prepay future tax liabilities."

Senate Bill 99 would allow for financial institutions to pay a tax directly to the county that has heretofore been paid directly to the state. The State of South Dakota has the statutory duty to administer this tax, including the audit function under SDCL 10-43.

I understand the intention of Senate Bill 99 and have no serious reservations about its intent. My reservations are grounded in the State's ability to perform the audit function over the ten year period which is allowed under Senate Bill 99. There are no provisions for notice by either the county or the financial institution to the State of South Dakota of future liabilities being paid. Without a clear audit trail for the State of South Dakota to rely upon, it is doubtful that a meaningful audit could be made which would stand legal challenges. I would anticipate considerable difficulty in complying with the State of South Dakota's statutory duty to accurately and fairly administer this tax.

I respectfully request that you concur with my action.

Respectfully submitted,
M. Michael Rounds
Governor

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 2, 53, 114, 125, 154, 175, 188, 216, and 217 and finds the same correctly enrolled.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 12, 107, 121, 164, and 189 were delivered to his Excellency, the Governor, for his approval at 10:55 a.m., March 1, 2005.

Respectfully submitted,
Lee Schoenbeck, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to transmit herewith HCR 1017 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 114, 125, 175, and 216 which have passed the House without change.

Also MR. PRESIDENT:

I have the honor to return herewith SB 17, 60, 95, 109, 119, 139, 178, 191, and 193 which have been amended by the House and your concurrence in the amendments is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Ed Olson moved that the Senate do concur in House amendments to SB 66.

The question being on Sen. Olson's motion that the Senate do concur in House amendments to SB 66.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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

Sen. Jim Peterson moved that the Senate do not concur in House amendments to SB 214 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.

Sen. Kelly moved as a substitute motion that the Senate do not concur in House amendments to SB 214 and that no committee be appointed.

The question being on Sen. Kelly's substitute motion that the Senate do not concur in House amendments to SB 214 and that no committee be appointed.

And the roll being called:

Yeas 19, Nays 14, Excused 2, Absent 0

Yeas:
Adelstein; Apa; Bogue; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Greenfield; Kelly; Knudson; Lintz; McCracken; McNenny; Napoli; Olson (Ed); Schoenbeck; Sutton (Duane)

Nays:
Bartling; Duenwald; Hansen (Tom); Hanson (Gary); Hundstad; Koetzle; Kooistra; Koskan; Moore; Nesselhuf; Peterson (Jim); Smidt; Sutton (Dan); Two Bulls

Excused:
Abdallah; Kloucek

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

Sen. Apa moved that the Senate do concur in House amendments to SB 222.

The question being on Sen. Apa's motion that the Senate do concur in House amendments to SB 222.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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

SCR 7 Introduced by: Senators Earley, Kelly, Knudson, Koetzle, McCracken, Moore, Olson (Ed), and Schoenbeck and Representatives Boomgarden, Cutler, Glenski, Heineman, Hennies, Jerke, Weems, Wick, and Willadsen

A CONCURRENT RESOLUTION, Requesting the Congress of the United States to provide level or increased funding for the Community Services Block Grant program.

WHEREAS, the Community Services Block Grant (CSBG) was created in 1982 as the successor to the Community Services Administration and the Office of Equal Opportunity; and

WHEREAS, the Community Services Block Grant Act designates Community Action Agencies as the only federally designated anti-poverty agencies in the United States; and

WHEREAS, Community Action Agencies use CSBG funds to provide anti-poverty programs that address needs specifically identified and prioritized by low-income populations; and

WHEREAS, Community Action Agencies leverage between seven and eight dollars of additional funding for each dollar of CSBG funds utilized; and

WHEREAS, thousands of low-income persons in South Dakota benefit directly from programs created or delivered by Community Action Agencies; and

WHEREAS, Community Action Agencies relieve county and state level programs of a significant financial burden by utilizing CSBG and other financial resources to provide needed services:

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 Legislature of the State of South Dakota requests that the Congress of the United States authorize and provide funding for the Community Services Block Grant at its current level or increase funding in Federal Fiscal Year 2006 and future years; and

BE IT FURTHER RESOLVED, that copies of this Resolution be forwarded to President George W. Bush, Senator Tim Johnson, Senator John Thune, and Representative Stephanie Herseth.

Was read the first time.

The President announced the waiving of the committee referral and SCR 7 was placed on the calendar of Wednesday, March 2, 2005, the 37^th legislative day.

HCR 1017: A CONCURRENT RESOLUTION, Requesting the creation of an interim committee to study interscholastic activities.

Was read the first time.

The President announced the waiving of the committee referral and HCR 1017 was placed on the calendar of Wednesday, March 2, 2005, the 37^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

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

State Affairs on HB 1260 as found on page 661 of the Senate Journal ; also

State Affairs on HB 1264 as found on page 671 of the Senate Journal ; also

Appropriations on HB 1082 as found on page 671 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

SECOND READING OF CONSENT CALENDAR ITEM

HB 1263: FOR AN ACT ENTITLED, An Act to revise the definition of domestic abuse.

Was read the second time.

The question being "Shall HB 1263 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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

HB 1212: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to professional and occupational licensing boards.

Was read the second time.

The question being "Shall HB 1212 pass as amended?"

And the roll being called:

Yeas 27, Nays 7, Excused 1, Absent 0

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

Nays:
Apa; Duenwald; Earley; Greenfield; Kooistra; Napoli; Schoenbeck

Excused:
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 1067: FOR AN ACT ENTITLED, An Act to revise the property tax levies for the general fund and the special education tax levy of a school district.

Was read the second time.

The question being "Shall HB 1067 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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 1140: FOR AN ACT ENTITLED, An Act to revise the calculation of state aid to education and report.

Was read the second time.

Sen. Bogue moved that HB 1140 and 1149 be placed to follow HB 1265 on today's calendar.

Which motion prevailed.

HB 1170: FOR AN ACT ENTITLED, An Act to provide for the certification of distance learning providers and to provide for the endorsement of distance learning instructors and to authorize the Board of Education to promulgate rules relating to distance learning courses.

Was read the second time.

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Sen. Ed Olson moved that HB 1170 be further amended as follows:

On page 2, after line 5 of the Senate Education Committee engrossed bill, insert:

"Section 5. Whereas, this Act is necessary for the immediate preservation of the public peace, health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval."

Which motion prevailed.

The question being "Shall HB 1170 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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. Ed Olson moved that the title to HB 1170 be amended as follows:

On page 1, line 2 of the Senate Education Committee engrossed bill, delete " provide for the endorsement of distance learning instructors and to " .

On page 1 , line 3, after " courses " insert "and to declare an emergency".

Which motion prevailed and the title was so amended.

HB 1220: FOR AN ACT ENTITLED, An Act to revise the calculation of state aid to general education and appropriate money therefor.

Was read the second time.

Sen. Bogue moved that HB 1220 be placed to follow HB 1149 on today's calendar.

Which motion prevailed.

HB 1252: FOR AN ACT ENTITLED, An Act to approve the state prairie dog management plan and to require that amendments to the plan be approved by the Legislature.

Was read the second time.

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Sen. Lintz moved that HB 1252 be further amended as follows:

On page 1, line 6 of the Senate Agriculture and Natural Resources Committee engrossed bill, delete " is " and insert "and the amendments to the plan that were filed with the secretary of state on February 23, 2005, are".

Which motion prevailed.

The question being "Shall HB 1252 pass as amended?"

And the roll being called:

Yeas 33, Nays 1, Excused 1, Absent 0

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

Nays:
Napoli

Excused:
Kloucek

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 1261 be immediately considered.

Which motion prevailed and HB 1261 was up for immediate consideration.

HB 1261: FOR AN ACT ENTITLED, An Act to provide for the refund of the sales and contractor's excise tax for significant capital investment and large job-creation projects.

Was read the second time.

The question being "Shall HB 1261 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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 1262: FOR AN ACT ENTITLED, An Act to provide a partial exemption to the assessment of certain power generation facilities for property tax purposes.

Was read the second time.

The question being "Shall HB 1262 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Kloucek

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 2:00 p.m., which motion prevailed and at 12:15 p.m., the Senate recessed.

RECESS

The Senate reconvened at 2:00 p.m., the President presiding.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

(continued)

HB 1180: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning business improvement districts and to exempt general occupational tax receipts from the sales and gross receipts taxes.

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

The question being "Shall HB 1180 pass as amended?"

And the roll being called:

Yeas 21, Nays 13, Excused 1, Absent 0

Yeas:
Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gray; Hansen (Tom); Kelly; Knudson; Lintz; McCracken; McNenny; Nesselhuf; Olson (Ed); Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Abdallah; Earley; Gant; Greenfield; Hanson (Gary); Hundstad; Koetzle; Kooistra; Koskan; Moore; Napoli; Peterson (Jim); Schoenbeck

Excused:
Kloucek

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 1122: FOR AN ACT ENTITLED, An Act to provide certain contractor's excise, sales, and use tax refunds.

Was read the second time.

The question being "Shall HB 1122 pass as amended?"

And the roll being called:

Yeas 32, Nays 1, Excused 2, Absent 0

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

Nays:
Moore

Excused:
Kloucek; Koskan

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 1004: FOR AN ACT ENTITLED, An Act to require that certain financial information concerning fund balances be reported to the Legislature.

Was read the second time.

The question being "Shall HB 1004 pass as amended?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

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

Excused:
Kloucek; Koskan

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 1024: FOR AN ACT ENTITLED, An Act to make an appropriation to the Board of Regents to cover certain cost increases affecting construction of the Lee Medicine and Science Hall renovation or replacement project at the University of South Dakota and to declare an emergency.

Was read the second time.

The question being "Shall HB 1024 pass as amended?"

And the roll being called:

Yeas 31, Nays 2, Excused 2, Absent 0

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

Nays:
Koetzle; Kooistra

Excused:
Kloucek; Koskan

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. 7.

MESSAGE FROM THE HOUSE

MR. PRESIDENT:

I have the honor to inform your honorable body that the House has appointed Reps. Dykstra, McCoy, and Hargens 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 214.

Respectfully,
Karen Gerdes, Chief Clerk

The House having appointed a conference committee on SB 214, the Senate also appointed a conference committee pursuant to Joint Rule 8-1.

The President announced as such committee Sens. Kelly, Jim Peterson, and Tom Hansen.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

(continued)

HB 1058: FOR AN ACT ENTITLED, An Act to make an appropriation to the state fair and to declare an emergency.

Was read the second time.

Sen. Bogue moved that HB 1058 be placed to follow HB 1220 on today's calendar.

Which motion prevailed.

HB 1082: FOR AN ACT ENTITLED, An Act to appropriate money for postsecondary technical education enhancement.

Was read the second time.

Sen. Bogue moved that HB 1082 be placed to follow HB 1226 on today's calendar.

Which motion prevailed.

HB 1226: FOR AN ACT ENTITLED, An Act to establish certain notice provisions related to the custody and placement of Indian children.

Was read the second time.

The question being "Shall HB 1226 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; Earley; Gant; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Knudson; Koetzle; Kooistra; Lintz; McCracken; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Excused:
Gray; Kloucek; Koskan; McNenny

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 1082: FOR AN ACT ENTITLED, An Act to appropriate money for postsecondary technical education enhancement.

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

The question being "Shall HB 1082 pass as amended?"

And the roll being called:

Yeas 29, Nays 4, Excused 2, Absent 0

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

Nays:
Bogue; Earley; Smidt; Sutton (Duane)

Excused:
Kloucek; Koskan

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 1260: FOR AN ACT ENTITLED, An Act to create the South Dakota Energy Infrastructure Authority and to declare an emergency.

Was read the second time.

The question being "Shall HB 1260 pass as amended?"

And the roll being called:

Yeas 23, Nays 9, Excused 3, Absent 0

Yeas:
Adelstein; Apa; Bartling; Bogue; Broderick; Duenwald; Duniphan; Gant; Greenfield; Hansen (Tom); Hundstad; Kelly; Koetzle; Lintz; McCracken; McNenny; Moore; Napoli; Olson (Ed); Schoenbeck; Smidt; Sutton (Dan); Two Bulls

Nays:
Dempster; Earley; Gray; Hanson (Gary); Knudson; Kooistra; Nesselhuf; Peterson (Jim); Sutton (Duane)

Excused:
Abdallah; Kloucek; Koskan

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 announced his intention to reconsider the vote by which HB 1260 lost.

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

Was read the second time.

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Sen. Schoenbeck moved that HB 1264 be further amended as follows:

On page 2, line 2 of the Senate State Affairs Committee engrossed bill, overstrike everything after " both . " .

On page 2 , overstrike lines 3 and 4 .

Which motion lost.

The question being "Shall HB 1264 pass as amended?"

And the roll being called:

Yeas 18, Nays 14, Excused 3, Absent 0

Yeas:
Adelstein; Bartling; Bogue; Dempster; Duniphan; Gray; Hanson (Gary); Hundstad; Knudson; Lintz; McCracken; McNenny; Moore; Nesselhuf; Olson (Ed); Smidt; Sutton (Duane); Two Bulls

Nays:
Abdallah; Apa; Broderick; Duenwald; Earley; Gant; Greenfield; Kelly; Koetzle; Kooistra; Napoli; Peterson (Jim); Schoenbeck; Sutton (Dan)

Excused:
Hansen (Tom); Kloucek; Koskan

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 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 second time.

The question being "Shall HB 1265 pass?"

And the roll being called:

Yeas 27, Nays 6, Excused 2, Absent 0

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

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

Excused:
Kloucek; Koskan

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 1140: FOR AN ACT ENTITLED, An Act to revise the calculation of state aid to education and report.

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

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Sen. Ed Olson moved that HB 1140 be further amended as follows:

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

"Section 1. The Department of Education is hereby directed to undertake a study of the allocation of state funds to the various public school districts.

Section 2. The study shall include consideration of the following factors:

(1) The allocation of funds to sparse school districts;

(2) The redistribution of funds currently allocated through what is commonly called the small school factor;

(3) The role of distance or remote education in the delivery of education services;

(4) The appropriate minimum size of a secondary school;

(5) The method by which to distribute money to account for the decline in the number of elementary and secondary students in the state's public schools; and

(6) The possible inclusion of other revenues into the state aid formula.

Section 3. The study may include participation by members of the public as may be directed by the Governor. The study shall include at least seven current members of the Legislature representing a cross-section of school districts.

Section 4. The Department of Education shall provide an interim report to the Legislature no later than December 1, 2005. The interim report shall include preliminary findings regarding sparse schools, and a final report shall follow no later than December 1, 2006.

Section 5. That § 13-13-10.1 be amended to read as follows:

13-13-10.1. Terms used in this chapter mean:

(1) "Average daily membership," the average number of resident and nonresident kindergarten through twelfth grade pupils enrolled in all schools operated by the school district during the previous regular school year, minus average number of pupils for whom the district receives tuition, except pupils described in subdivision (1A) and pupils for whom tuition is being paid pursuant to § 13-28-42 and plus the average number of pupils for whom the district pays tuition;

(1A) Nonresident students who are in the care and custody of the Department of Social Services, the Unified Judicial System, the Department of Corrections, or other state agencies and are attending a public school may be included in the average daily membership of the receiving district when enrolled in the receiving district. When counting a student who meets these criteria in its general enrollment average daily membership, the receiving district may begin the enrollment on the first day of attendance. The district of residence prior to the custodial transfer may not include students who meet these criteria in its general enrollment average daily membership after the student ceases to attend school in the resident district;

(2) ~~"Adjusted average daily membership," calculated as follows:~~

~~(a) For districts with an average daily membership of two hundred or less, multiply 1.2 times the average daily membership;~~

(b) For districts with an average daily membership of less than six hundred, but greater than two hundred, raise the average daily membership to the 0.8293 power and multiply the result times 2.98;

~~(c) For districts with an average daily membership of six hundred or more, multiply 1.0 times their average daily membership;~~

(3) "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;

(3a) "Index factor," is the sum of (a) 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, plus (b) the declining enrollment percentage. The provisions of this subdivision are effective for fiscal years 2006 and 2007 only;

(3b) "Declining enrollment percentage," the greater of (a) zero or (b) the negative of the percentage change in average daily membership from the year prior to the year for which state aid is to be distributed to the estimated average daily membership for the year for which state aid to education is distributed. The provisions of this subdivision are effective for fiscal years 2006 and 2007 only;

(4) "Per student allocation," for school fiscal year 2005 is $4,086.56. Each school fiscal year thereafter, the per student allocation is the previous fiscal year's per student allocation increased by the index factor;

(4a) "Adjusted per student allocation," calculated as follows:

(a) For districts with an average daily membership of two hundred or less, the per student allocation plus $817.31;

(b) For districts with an average daily membership of less than six hundred, but greater than two hundred;

(i) Raise the average daily membership to the 0.8293, multiply the results by 12,177.9488 then divide by the average daily membership;

(ii) Subtract 4086.56 from the results of (i) and add the per student allocation;

(c) For districts with an average daily membership of six hundred or more, multiply 1.0 times the per student allocation.

(5) "Local need," the adjusted per student allocation multiplied by the ~~adjusted~~ average daily membership;

(6) "Local effort," the amount of ad valorem taxes generated in a school fiscal year by applying the levies established pursuant to § 10-12-42;

(7) "General fund balance," the unreserved fund balance of the general fund, less general fund exclusions plus, beginning with transfers made in fiscal year 2001, any transfers out of the general fund for the previous school fiscal year;

(8) "General fund balance percentage," is a school district's general fund balance divided by the school district's total general fund expenditures for the previous school fiscal year, the quotient expressed as a percent;

(9) "General fund base percentage," is the general fund balance percentage as of June 30, 2000. However, the general fund base percentage can never increase and can never be less than twenty percent;

(10) "Allowable general fund balance," the fund base percentage multiplied by the district's general fund expenditures in the previous school fiscal year;

(11) "Imputed interest rate," the average prime rate for the preceding fiscal year minus 2.5 percentage points;

(12) "General fund exclusions," revenue a school district has received from the imposition of the excess tax levy pursuant to § 10-12-43; revenue a school district has received from gifts, contributions, grants, or donations; revenue a school district has received under the provisions of §§ 13-6-92 to 13-6-96, inclusive; and any revenue in the general fund set aside for a noninsurable judgment ;

(13) "Sparse district," a district which meets all of the following requirements:

(a) Average daily membership of less than six hundred;

(b) Area of more than five hundred square miles;

(d) Average daily membership per square mile of 0.6 or less .

Section 6. That § 13-13-73 be amended to read as follows:

13-13-73. The secretary of the Department of Education shall compute state aid to education for each school district under the foundation program according to the following calculations:

(1) Determine each school district's average daily membership;

(2) Multiply the adjusted per student allocation by the ~~adjusted~~ average daily membership to arrive at the local need per district;

(3) State aid is (a) local need minus local effort, or (b) zero if the calculation in (a) is a negative number;

(4) If the state aid appropriation for the general support of education is in excess of the entitlement provided for in this section, the excess shall be used to fund any shortfall of the appropriation as provided for in §§ 13-37-36.3 and 13-37-43. The secretary shall report to the Governor by January seventh of each year, the amount of state aid necessary to fully fund the general aid formula in the current year. If a shortfall in the state aid appropriation for general education exists that cannot be covered by § 13- 37-45, the Governor shall inform the Legislature and provide a proposal to eliminate the shortfall. "

1140zc

Sen. Moore moved as a substitute motion that HB 1140 be further amended as follows:

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

"Section 1. The state treasurer shall transfer to the state general fund from the budget reserve fund created in § 4-7-31 the sum of five million two hundred ten thousand dollars ($5,210,000) for distribution by the secretary of the Department of Education through the state aid to general education formula in chapter 13-13.

Section 2. This Act takes effect June 21, 2005."

Sen. Nesselhuf requested a roll call vote.

Which request was supported.

The question being on Sen. Moore's substitute motion that HB 1140 be further amended.

And the roll being called:

Yeas 10, Nays 23, Excused 2, Absent 0

Yeas:
Bartling; Hanson (Gary); Hundstad; Koetzle; Kooistra; Moore; Nesselhuf; Peterson (Jim); Sutton (Dan); Two Bulls

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

Excused:
Kloucek; Koskan

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

1140x

Sen. Schoenbeck moved as a substitute motion that HB 1140 be further amended as follows:

On page 1 of the Senate Education Committee engrossed bill, delete line 2 .

And the roll being called:

Yeas 19, Nays 13, Excused 3, Absent 0

Yeas:
Abdallah; Apa; Bartling; Broderick; Earley; Greenfield; Hanson (Gary); Hundstad; Kelly; Koetzle; Kooistra; Lintz; McNenny; Moore; Napoli; Nesselhuf; Peterson (Jim); Schoenbeck; Sutton (Dan)

Nays:
Adelstein; Bogue; Dempster; Duenwald; Duniphan; Gant; Gray; Hansen (Tom); Knudson; McCracken; Olson (Ed); Smidt; Sutton (Duane)

Excused:
Kloucek; Koskan; 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 1140 was lost.

HB 1149: FOR AN ACT ENTITLED, An Act to 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.

Was read the second time.

1149za

Sen. Bogue moved that HB 1149 be further amended as follows:

On page 3 , line 2 of the Senate Education Committee engrossed bill, delete " and " and insert ",".

On page 3 , line 3, after " Act " insert ", and data regarding numbers of graduating seniors".

On page 3, line 5, after " border " insert "that receives students from North Dakota and".

On page 3 , line 9, after " difference. " insert "For fiscal years 2006, 2007, and 2008 the department shall calculate the affected district's difference in state aid general foundation support after determining any change in state aid funding to the district that is attributable to the graduating seniors."

Which motion prevailed.

The question being "Shall HB 1149 pass as amended?"

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

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

Nays:
Abdallah

Excused:
Kloucek; Koskan; 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 1220: FOR AN ACT ENTITLED, An Act to revise the calculation of state aid to general education and appropriate money therefor.

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

1220ta

Sen. Bogue moved that HB 1220 be further amended as follows:

On page 2, line 24 of the House State Affairs Committee engrossed bill, delete " $4,235.71 " and insert " $4,237.72 ".

Which motion prevailed.

The question being "Shall HB 1220 pass as amended?"

And the roll being called:

Yeas 31, Nays 2, Excused 2, Absent 0

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

Nays:
Napoli; Smidt

Excused:
Kloucek; Koskan

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 1058: FOR AN ACT ENTITLED, An Act to make an appropriation to the state fair and to declare an emergency.

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

1058fd

Sen. Knudson moved that HB 1058 be amended as follows:

On page 1, between lines 10 and 11 of the printed bill, insert:

"Section 4. Except for funds specifically appropriated for the state fair and the revenues received by the state fair, the Department of Agriculture may not transfer or expend any funds on the state fair from other programs or other funds within the Department of Agriculture in an amount greater than five hundred thousand dollars."

Which motion prevailed.

The question being "Shall HB 1058 pass as amended?"

And the roll being called:

Yeas 30, Nays 3, Excused 2, Absent 0

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

Nays:
Abdallah; Adelstein; Hanson (Gary)

Excused:
Kloucek; Koskan

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. Knudson moved that the title to HB 1058 be amended as follows:

On page 1, line 1 of the printed bill, after " fair " insert ", to limit certain transfers and expenditures of funds,".

Which motion prevailed and the title was so amended.

Sen. Bogue moved that the Senate do now recess until 4:20 p.m., which motion prevailed and at 4:05 p.m., the Senate recessed.

RECESS

The Senate reconvened at 4:20 p.m., the President presiding.

MOTIONS AND RESOLUTIONS

Earlier, Sen. Bogue announced his intention to reconsider the vote by which HB 1260 lost.

Sen. Bogue moved that the Senate do now reconsider the vote by which HB 1260 lost.

The question being on Sen. Bogue's motion to reconsider the vote by which HB 1260 lost.

And the roll being called:

Yeas 32, Nays 1, Excused 2, Absent 0

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

Nays:
Koetzle

Excused:
Kloucek; Koskan

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HB 1260 was up for reconsideration and final passage.

HB 1260: FOR AN ACT ENTITLED, An Act to create the South Dakota Energy Infrastructure Authority and to declare an emergency.

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

The question being "Shall HB 1260 pass as amended?"

And the roll being called:

Yeas 29, Nays 4, Excused 2, Absent 0

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

Nays:
Abdallah; Knudson; Koetzle; Kooistra

Excused:
Kloucek; Koskan

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 1260 be amended as follows:

On page 1, line 1 of the Senate State Affairs Committee engrossed bill, after " Authority " insert ", to make an appropriation therefor,".

Which motion prevailed and the title was so amended.

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

COMMUNICATIONS AND PETITIONS

March 1, 2005

Mr. President and Members of the Senate:

I have the honor to inform you that on March 1, 2005, I approved Senate Bills 169 and 180, 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. 5.

REPORTS OF STANDING COMMITTEE

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 66 and 222 and finds the same correctly enrolled.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 2, 53, 114, 125, 154, 175, 188, 216, and 217 were delivered to his Excellency, the Governor, for his approval at 3:10 p.m., March 1, 2005.

Respectfully submitted,
Lee Schoenbeck, Chair

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

REPORT OF CONFERENCE COMMITTEE

MR. PRESIDENT:

The Conference Committee respectfully reports that it has considered SB 143 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                                Dan Sutton
House Committee Chair                        Senate Committee Chair

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 adopted the report of the Conference Committee 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 1095 and 1203.

Also MR. PRESIDENT:

I have the honor to inform your honorable body that SB 97 and 210 were lost on second reading and final passage.

Respectfully,
Karen Gerdes, Chief Clerk

Sen. Bogue moved that when we adjourn today, we adjourn to convene at 10:00 a.m. on Wednesday, March 2, the 37^th legislative day.

Which motion prevailed.

COMMEMORATIONS

SC 21 Introduced by: Senator Bartling and Representatives Glover and Deadrick

A LEGISLATIVE COMMEMORATION, Honoring Dennis Vedral for his induction into the South Dakota Wrestling Hall of Fame.

WHEREAS, Dennis Vedral dedicated four years to the Gregory High School wrestling team, including a stellar senior year when he earned a record of 24-1 enduring his only loss at the 1968 Class B State Wrestling Tournament where he finished as state runner-up. He then went on to succeed at Southern State College in Springfield, South Dakota, where he won the South Dakota Intercollegiate Conference Championship during his 14-0 season, thus qualifying for nationals; and

WHEREAS, Dennis Vedral has continued to be an avid supporter for the sport through his nineteen years as a referee from 1971 to 1990, ongoing assistance with the Gregory Athletics Club's annual wrestling tournament, and loyal friendship with coaches, referees, wrestlers, and wrestling fans; and

WHEREAS, Dennis Vedral's athletic ability, dedication, and enthusiasm for the sport of wrestling, the youth of our great state, and his community have been recognized with his induction into the South Dakota Wrestling Hall of Fame:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eightieth Legislature of the State of South Dakota, that Dennis Vedral be honored and congratulated upon his selection to be inducted into the South Dakota Wrestling Hall of Fame.

SIGNING OF BILLS

The President publicly read the title to

SB 2: FOR AN ACT ENTITLED, An Act to revise the procedure for assessing certain agricultural property.

SB 53: FOR AN ACT ENTITLED, An Act to provide for adequate access to health care provider networks.

SB 66: FOR AN ACT ENTITLED, An Act to provide certain options to school boards in reorganization and to declare an emergency.

SB 114: FOR AN ACT ENTITLED, An Act to establish a refundable checkoff on pulse crops.

SB 125: FOR AN ACT ENTITLED, An Act to exempt transfers of funds from certain municipal revenue producing ventures from the calculation of the general fund balance of school districts.

SB 154: FOR AN ACT ENTITLED, An Act to exempt certain entities from the lending license fees and surety bond requirements and bank franchise taxes.

SB 175: FOR AN ACT ENTITLED, An Act to provide for the removal of certain noncommercial motor vehicle license plates from a motor vehicle if the ownership of the vehicle is transferred and to make an appropriation to provide for the administration thereof.

SB 188: FOR AN ACT ENTITLED, An Act to revise the General Appropriations Act for fiscal year 2005 for education enhancement.

SB 216: FOR AN ACT ENTITLED, An Act to enumerate the circumstances under which prairie dogs are to be considered pests.

SB 217: FOR AN ACT ENTITLED, An Act to revise certain cross references in the code with regard to the implementation of the South Dakota Business Corporation Act and to provide for an exception to the repealers.

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.

HB 1005: FOR AN ACT ENTITLED, An Act to provide for the deposit and appropriation of certain federal reimbursements.

HB 1025: FOR AN ACT ENTITLED, An Act to authorize the South Dakota Building Authority and the Board of Regents to implement the long-term capital project request of the Board of Regents, providing for the construction, remodeling, or renovation of various structures on the campuses of the state's universities and the School for the Deaf, to make appropriations therefor, and to repeal certain previous capital project authorizations.

HB 1051: FOR AN ACT ENTITLED, An Act to authorize the South Dakota Building Authority to provide for the construction, reconstruction, renovation, and modernization of fish hatchery facilities and infrastructure at Blue Dog State Fish Hatchery at Blue Dog Lake, Cleghorn State Fish Hatchery at Rapid City, and McNenny Fish Hatchery at Spearfish for the Department of Game, Fish and Parks.

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

HB 1142: FOR AN ACT ENTITLED, An Act to provide sales and use tax refunds to certain fabricators.

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

HB 1158: FOR AN ACT ENTITLED, An Act to appropriate funds to provide cochlear implants to certain children.

HB 1160: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to franchises and cable services.

HB 1166: FOR AN ACT ENTITLED, An Act to establish certain legislative findings pertaining to the health and rights of women, to revise the physician disclosure requirements to be made to a woman contemplating submitting to an abortion, and to provide for certain causes of action for professional negligence if an abortion is performed without informed consent.

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.

HB 1215: FOR AN ACT ENTITLED, An Act to make appropriations from the water and environment fund, the environment and natural resources fee fund, the water pollution control revolving fund subfund, and the drinking water revolving fund subfund for various water and environmental purposes, and to declare an emergency.

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.

HB 1245: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the use of automated external defibrillators.

HB 1249: FOR AN ACT ENTITLED, An Act to prohibit the performance of abortions, except to save the life of the mother, and to provide a penalty therefor and to provide for a delayed effective date.

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.

And signed the same in the presence of the Senate.

Sen. Bartling moved that the Senate do now adjourn, which motion prevailed and at 4:35 p.m. the Senate adjourned.

Patricia Adam, Secretary