House Journal 02/03/2006 1:00 PM

JOURNAL OF THE HOUSE

EIGHTY-FIRST SESSION

EIGHTEENTH DAY

STATE OF SOUTH DAKOTA
House of Representatives, Pierre
Friday, February 3, 2006

The House convened at 1:00 p.m., pursuant to adjournment, the Speaker presiding.

The prayer was offered by the Chaplain, Pastor Larry Cass, followed by the Pledge of Allegiance led by House pages Allison LaFave and Paul Rann.

Roll Call: All members present.

APPROVAL OF THE JOURNAL

MR. SPEAKER:

The Committee on Legislative Procedure respectfully reports that the Chief Clerk of the House has had under consideration the House Journal of the seventeenth day.

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

And we hereby move the adoption of the report.

Respectfully submitted,

Matthew Michels, Chair

Which motion prevailed.

COMMUNICATIONS AND PETITIONS

February 3, 2006

Mr. Speaker and Members of the House of Representatives:

I have the honor to inform you that on February 3, 2006, I approved House Bills 1002, 1003, 1008, 1033, 1063, and 1094, 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. SPEAKER:

The Committee on Health and Human Services respectfully reports that it has had under consideration HB 1105 and tabled the same.

Respectfully submitted,
Don Van Etten, Chair

Also MR. SPEAKER:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1060 and 1247 and returns the same with the recommendation that said bills do pass.

Also MR. SPEAKER:

The Committee on State Affairs respectfully reports that it has had under consideration SB 74 and 75 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MR. SPEAKER:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1207 which was deferred to the 36^th Legislative Day.

Respectfully submitted,
Joel Dykstra, Vice Chair

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1135 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1210 and returns the same with the recommendation that said bill be amended as follows:

1210ra

On page 17, between lines 17 and 18 of the printed bill, insert:

" Section 31. That § 21-25A-3 be amended to read as follows:

21-25A-3. This chapter does not apply to insurance policies and every provision in any such policy requiring arbitration or restricting a party thereto or beneficiary thereof from enforcing any right under it by usual legal proceedings in ordinary tribunals or limiting the time to do so is void and unenforceable. However, nothing in this chapter may be deemed to impair the enforcement of or invalidate a contractual provision for arbitration entered into between insurance companies or a policy issued to an exempt commercial policyholder as defined by § 58-24-68 . ".

On page 17 , line 18, after " 21-25A-1 " insert ", 21-25A-2, and 21-25A-4".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1185 and returns the same with the recommendation that said bill be amended as follows:

1185jb

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

"
Section 1. That § 55-1B-1 be amended to read as follows:

55-1B-1. Terms used in this chapter mean:

(1) "Instrument," any revocable or irrevocable trust document created inter vivos or testamentary or any custodial account agreement ;

(2) "Trust protector," any disinterested third party whose appointment is provided for in the ~~trust~~ instrument;

(3) Repealed by SL 2005, ch 260, § 2.

(4) "Fiduciary," a trustee or custodian under any ~~testamentary or other trust~~ instrument , an executor, administrator, or personal representative of a decedent's estate, or any other party, including a trust advisor, a trust protector, or a trust committee, who is acting in a fiduciary capacity for any person, trust, or estate;

(5) "Excluded fiduciary," any fiduciary excluded from exercising certain powers under the instrument which powers may be exercised by the grantor, custodial account owner, trust advisor, trust protector, trust committee, or other persons designated in the ~~trust~~ instrument;

(6) "Investment trust advisor," a fiduciary, given authority by the ~~trust~~ instrument to exercise all or any portions of the powers and discretions set forth in § 55-1B-10;

(7) "Distribution trust advisor," a fiduciary, given authority by the ~~trust~~ instrument to exercise all or any portions of the powers and discretions set forth in § 55-1B-11 ;

(8) "Custodial account," an account, established by a party with a bank as defined in 26 U.S.C. 408(n), as of January 1, 2006, or with another person approved by the Internal Revenue Service as satisfying the requirements to be a nonbank trustee or a nonbank passive trustee set forth in U.S. Treasury Regulations promulgated under 26 U.S.C. 408, that is governed by an instrument concerning the establishment or maintenance, or both, of an individual retirement account, qualified retirement plan, Archer medical savings account, health savings account, Coverdell education savings account, or any similar retirement or savings vehicle permitted under the Internal Revenue Code of 1986, as of January 1, 2006;

(9) "Custodial account owner," any party who establishes a custodial account; or has the power to designate the beneficiaries or appoint the custodian of the custodial account; or otherwise is the party who possesses the power to direct the investment, disposition, or retention of any assets in the custodial account or name an authorized designee to effect the same .

Section 2. That § 55-1B-2 be amended to read as follows:

55-1B-2. An excluded fiduciary is not liable, either individually or as a fiduciary, for either of the following:

(1) Any loss that results from compliance with a direction of the trust advisor , custodial account owner, or authorized designee of a custodial account owner ;

(2) Any loss that results from a failure to take any action proposed by an excluded fiduciary that requires a prior authorization of the trust advisor if that excluded fiduciary timely sought but failed to obtain that authorization.

Any excluded fiduciary is also relieved from any obligation to perform investment or suitability reviews ~~and~~ , inquiries, or investigations or to make recommendations or evaluations with respect to any investments to the extent the trust advisor , custodial account owner, or authorized designee of a custodial account owner had authority to direct the acquisition, disposition, or retention of any such investment.

Nothing in subdivision (2) imposes an obligation or liability with respect to a custodian of a custodial account. ".

And that as so amended said bill do pass and be placed on the Consent Calendar.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1159 which was deferred to the 36^th Legislative Day.

Respectfully submitted,
Joni M. Cutler, Chair

Also MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration HB 1194 and returns the same with the recommendation that said bill be amended as follows:

1194ja

On page 2 of the printed bill, delete lines 1 to 3, inclusive, and insert "No employee of a school district, while performing employment duties, may send, direct, or accompany any student of that school district for abortion or family planning services, unless the employee is the parent or legal guardian of the student.".

1194ra

On page 2, after line 4 of the printed bill, insert:

Section 3. The provisions of this Act do not apply to any school governed by the provisions of chapter 13-39.".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration HB 1217 and returns the same with the recommendation that said bill be amended as follows:

1217cb

On page 4, line 8 of the printed bill, delete everything after " board " and insert "made up of a majority of parents or legal guardians. The board shall participate in the evaluation and selection of curriculum and materials.".

On page 4 , delete lines 9 to 19 , inclusive.

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration HB 1168 and 1213 which were deferred to the 36^th Legislative Day.

Respectfully submitted,
Phyllis M. Heineman, Chair

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1019, 1038, 1055, 1239, and 1243 and returns the same with the recommendation that said bills do pass.

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1103 and returns the same with the recommendation that said bill be amended as follows:

1103hc

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

" Section 1. There is hereby appropriated from the state general fund the sum of three hundred sixty thousand dollars ($ 360,000 ), or so much thereof as may be necessary, to the Department of Education for the maintenance and repair of buildings of postsecondary technical institutes. Moneys may be distributed after the secretary of the Department of Education has received a schedule of tuition, fees, and other charges from each postsecondary technical institute which indicates that a maintenance and repair fee of one dollar per credit hour has been imposed.

Section 2. The secretary of the Department of Education shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by this Act.

Section 3. Any amounts appropriated in this Act not lawfully expended or obligated by June 30, 2007, shall revert in accordance with § 4-8-21."

1103hta

On page 1, line 1 of the printed bill, after " institutes " insert "for the maintenance and repair of buildings".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1237 and returns the same with the recommendation that said bill be amended as follows:

1237aa

On page 4, line 18 of the printed bill, after " hundred " insert " one ".

And that as so amended said bill do pass.

Respectfully submitted,
J.E. “Jim” Putnam, Chair

MESSAGES FROM THE SENATE

MR. SPEAKER:

I have the honor to return herewith HB 1025, 1041, 1056, 1068, 1073, 1078, 1095, 1104, and 1121 which have passed the Senate without change.

Also MR. SPEAKER:

I have the honor to return herewith HB 1006 which has been amended by the Senate and your concurrence in the amendments is respectfully requested.

Also MR. SPEAKER:

I have the honor to transmit herewith SB 49, 64, 130, 166, and 183 which have passed the Senate and your favorable consideration is respectfully requested.

Respectfully,
Patricia Adam, Secretary

MOTIONS AND RESOLUTIONS

HOUSE PAGE RESOLUTION 2 Introduced by: Representatives Boomgarden; Bradford; Brunner; Buckingham; Cutler; Davis; Deadrick; Dennert; Dykstra; Elliott; Faehn; Frost; Fryslie; Garnos; Gassman; Gillespie; Glenski; Glover; Hackl; Haley; Halverson; Hanks; Hargens; Haverly; Heineman; Hennies; Hills; Howie; Hunhoff; Hunt; Jensen; Jerke; Klaudt; Koistinen; Kraus; Krebs; Kroger; Lange; McCoy; McLaughlin; Michels; Miles; Murschel; Nelson; Novstrup; O'Brien; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Roberts; Rounds; Schafer; Sebert; Sigdestad; Street; Thompson; Tidemann; Tornow; Turbiville; Valandra; Van Etten; Van Norman; Vehle; Weems; Wick; Willadsen

A RESOLUTION, Expressing the appreciation and gratitude of the House of Representatives of the Eighty-first Legislature of the State of South Dakota to Abbi Davelaar, Jaleesa Hageman, Brittany Hooker, Allison LaFave, Daniel Meyer, John Michels, Paul Rann, Emily Tschetter, Roderic Van Dusseldorp, Leigha Veurink, Stephanie Whitlock, Jennifer Wynia.

WHEREAS, the above named served loyally as pages for the House of Representatives of the Eighty-first Legislative Session; and

WHEREAS, the members of the Eighty-first House of Representatives express their most sincere appreciation to these young people for their service to the state; and

WHEREAS, the members extend to these young people their wishes for every success in life:

NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the Eighty- first Legislature of the State of South Dakota, that a personal copy of this commemoration be duly certified and furnished to each page on this last day of service.

Rep. Rhoden moved that House Page Resolution 2 be adopted.

Which motion prevailed and the resolution was adopted.

Rep. Van Etten moved that the House do concur in Senate amendments to HB 1065.

The question being on Rep. Van Etten's motion that the House do concur in Senate amendments to HB 1065.

And the roll being called:

Yeas 70, Nays 0, Excused 0, Absent 0

Yeas:
Boomgarden; Bradford; Brunner; Buckingham; Cutler; Davis; Deadrick; Dennert; Dykstra; Elliott; Faehn; Frost; Fryslie; Garnos; Gassman; Gillespie; Glenski; Glover; Hackl; Haley; Halverson; Hanks; Hargens; Haverly; Heineman; Hennies; Hills; Howie; Hunhoff; Hunt; Jensen; Jerke; Klaudt; Koistinen; Kraus; Krebs; Kroger; Lange; McCoy; McLaughlin; Miles; Murschel; Nelson; Novstrup; O'Brien; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Roberts; Rounds; Schafer; Sebert; Sigdestad; Street; Thompson; Tidemann; Tornow; Turbiville; Valandra; Van Etten; Van Norman; Vehle; Weems; Wick; Willadsen; Speaker Michels

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

Rep. Cutler moved that the House do concur in Senate amendments to HB 1074.

The question being on Rep. Cutler's motion that the House do concur in Senate amendments to HB 1074.

And the roll being called:

Yeas 70, Nays 0, Excused 0, Absent 0

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

Yesterday, Rep. Pederson announced his intention to reconsider the vote by which HB 1114 passed.

Rep. Pederson moved that the House do now reconsider the vote by which HB 1114 passed.

The question being on Rep. Pederson's motion to reconsider the vote by which HB 1114 passed.

And the roll being called:

Yeas 41, Nays 29, Excused 0, Absent 0

Yeas:
Boomgarden; Buckingham; Cutler; Davis; Deadrick; Dykstra; Faehn; Frost; Garnos; Hackl; Hanks; Haverly; Heineman; Hills; Howie; Hunhoff; Hunt; Jensen; Jerke; Kraus; Krebs; McCoy; McLaughlin; Novstrup; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Schafer; Sebert; Tidemann; Tornow; Turbiville; Vehle; Weems; Wick; Willadsen; Speaker Michels

Nays:
Bradford; Brunner; Dennert; Elliott; Fryslie; Gassman; Gillespie; Glenski; Glover; Haley; Halverson; Hargens; Hennies; Klaudt; Koistinen; Kroger; Lange; Miles; Murschel; Nelson; O'Brien; Roberts; Rounds; Sigdestad; Street; Thompson; Valandra; Van Etten; Van Norman

So the motion having received an affirmative vote of a majority of the members-elect, the Speaker declared the motion carried and HB 1114 was up for reconsideration and final passage.

Rep. Pederson moved that HB 1114 be placed on the calendar of Monday, February 6^th, the 19^th legislative day.

Which motion prevailed.

CONSIDERATION OF REPORTS OF COMMITTEES

Rep. Rhoden moved that the reports of the Standing Committees on

Agriculture and Natural Resources on HB 1162 as found on page 338 of the House Journal ; also

Commerce on HB 1209 as found on page 339 of the House Journal ; also

Taxation on HB 1069 as found on pages 339 and 340 of the House Journal ; also

Taxation on HB 1110 as found on page 340 of the House Journal ; also

Taxation on HB 1154 as found on pages 340 to 343 of the House Journal be adopted.

Which motion prevailed and the reports were adopted.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 49: FOR AN ACT ENTITLED, An Act to modify the requirements for health discount plans.

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

SB 64: FOR AN ACT ENTITLED, An Act to repeal certain outdated statutorily created funds.

Was read the first time and referred to the Committee on Government Operations and Audit.

SB 130: FOR AN ACT ENTITLED, An Act to impose the 911 monthly telephone surcharge to prepaid telephone calling services.

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

SB 166: FOR AN ACT ENTITLED, An Act to adopt the Uniform Athlete Agents Act.

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

SB 183: FOR AN ACT ENTITLED, An Act to provide for distinctive motor vehicle license plates for certain military veterans.

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

SECOND READING OF CONSENT CALENDAR ITEMS

HB 1141: FOR AN ACT ENTITLED, An Act to provide standards for interpreting for the deaf and hard-of-hearing by requiring national interpreter certification and to repeal the state certification process and replace it with registration.

Was read the second time.

Rep. Murschel requested that HB 1141 be removed from the Consent Calendar.

Which request was granted.

HB 1182: FOR AN ACT ENTITLED, An Act to allow school districts to expend from the capital outlay fund for some of their mileage reimbursement costs.

Was read the second time.

The question being “Shall HB 1182 pass?”

And the roll being called:

Yeas 69, Nays 1, Excused 0, Absent 0

Yeas:
Boomgarden; Bradford; Brunner; Buckingham; Cutler; Davis; Deadrick; Dennert; Dykstra; Elliott; Faehn; Frost; Fryslie; Garnos; Gassman; Gillespie; Glenski; Glover; Hackl; Haley; Halverson; Hanks; Hargens; Haverly; Heineman; Hills; Howie; Hunhoff; Hunt; Jensen; Jerke; Klaudt; Koistinen; Kraus; Krebs; Kroger; Lange; McCoy; McLaughlin; Miles; Murschel; Nelson; Novstrup; O'Brien; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Roberts; Rounds; Schafer; Sebert; Sigdestad; Street; Thompson; Tidemann; Tornow; Turbiville; Valandra; Van Etten; Van Norman; Vehle; Weems; Wick; Willadsen; Speaker Michels

Nays:
Hennies

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

SB 13: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the publication of facsimile ballots.

Was read the second time.

The question being “Shall SB 13 pass?”

And the roll being called:

Yeas 70, Nays 0, Excused 0, Absent 0

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

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1113: FOR AN ACT ENTITLED, An Act to exempt claims related to wildland fire operations outside the state from certain workers' compensation provisions.

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

1113ob

Rep. Deadrick moved that HB 1113 be amended as follows:

On page 2 of the House State Affairs Committee engrossed bill, delete lines 6 to 8 , inclusive, and insert:

No workers' compensation benefits may be provided by the state if the claim arises while dispatched to a wildland fire outside the state, unless the fire is a threat to resources within South Dakota. ".

Which motion prevailed.

The question being “Shall HB 1113 pass as amended?”

And the roll being called:

Yeas 65, Nays 5, Excused 0, Absent 0

Yeas:
Boomgarden; Brunner; Buckingham; Cutler; Davis; Deadrick; Dennert; Dykstra; Faehn; Frost; Fryslie; Garnos; Gassman; Gillespie; Glenski; Hackl; Halverson; Hanks; Hargens; Haverly; Heineman; Hennies; Hills; Howie; Hunhoff; Hunt; Jensen; Jerke; Klaudt; Koistinen; Kraus; Krebs; Kroger; Lange; McCoy; McLaughlin; Miles; Murschel; Nelson; Novstrup; O'Brien; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Roberts; Rounds; Schafer; Sebert; Sigdestad; Street; Tidemann; Tornow; Turbiville; Valandra; Van Etten; Van Norman; Vehle; Weems; Wick; Willadsen; Speaker Michels

Nays:
Bradford; Elliott; Glover; Haley; Thompson

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

Rep. Rhoden moved that HB 1246 be placed to precede HB 1160 on today's calendar.

Which motion prevailed.

HB 1246: FOR AN ACT ENTITLED, An Act to authorize the state to join an interstate compact for the prevention and control of forest fires.

Was read the second time.

The question being “Shall HB 1246 pass?”

And the roll being called:

Yeas 70, Nays 0, Excused 0, Absent 0

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

Rep. Rhoden moved that HB 1160, 1186, 1205, 1172, 1212, 1184, 1224, and 1229 and SB 32, 11, 12, 71, and 77 be deferred to Monday, February 6^th, the 19^th legislative day.

Which motion prevailed.

REPORTS OF STANDING COMMITTEES

MR. SPEAKER:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared HB 1025, 1041, 1056, 1068, 1073, 1078, 1095, 1104, and 1121 and finds the same correctly enrolled.

Respectfully submitted,
Matthew Michels, Chair

SIGNING OF BILLS

The Speaker publicly read the title to

HB 1025: FOR AN ACT ENTITLED, An Act to revise state aid to special education.

HB 1041: FOR AN ACT ENTITLED, An Act to allow for denial, suspension, or revocation of emergency medical technician certificates for past gross incompetence and for unprofessional or dishonorable conduct.

HB 1056: FOR AN ACT ENTITLED, An Act to permit municipalities to delegate to employees the authority to enter into certain contracts on behalf of the municipality.

HB 1068: FOR AN ACT ENTITLED, An Act to require the names of certain parties to be listed in instruments recorded by the register of deeds.

HB 1073: FOR AN ACT ENTITLED, An Act to revise the circumstances under which certain arrests may be effected without warrant.

HB 1078: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the bonding of township clerks and treasurers.

HB 1095: FOR AN ACT ENTITLED, An Act to clarify the elements of the crime of impersonating another.

HB 1104: FOR AN ACT ENTITLED, An Act to revise the elements of the crime of eavesdropping.

HB 1121: FOR AN ACT ENTITLED, An Act to revise notification requirements for certain planning and zoning changes.

And signed the same in the presence of the House.

COMMEMORATIONS

HC 1010 Introduced by: Representatives Dykstra and Gillespie and Senator Broderick

A LEGISLATIVE COMMEMORATION, Honoring Charles Kuehl of Canton for a life of public service.

WHEREAS, Mr. Charles W. Kuehl, a distinguished citizen of Canton, South Dakota, who devoted his life to public service, died on February 1, 2006; and

WHEREAS, Charles Kuehl, a veteran of the United States Army, was a lifelong farmer in the Canton area who was honored as an Outstanding Young Farmer in South Dakota, as a Pioneer Livestock Shipper by the Sioux Falls stockyards, and as a recipient of the WNAX Farm Family award for contributions to agriculture and the community. He was an avid supporter of 4-H and served for fourteen years as a member of the Canton School Board; and

WHEREAS, Charles Kuehl was an early and strong advocate of rural water in South Dakota. He helped develop the South Lincoln Rural Water System and served on its board of directors for twenty-eight years, nineteen of those years as its chairman. He was an organizer of the Southeastern South Dakota Water System, which evolved into the Lewis and Clark Rural Water System; and he served as the chairman of the Lewis and Clark Rural Water System Board of Directors from 1994 until his death. Mr. Kuehl was honored for his service in the development of rural water in South Dakota with the Lyle Trautman Memorial Award by the Lewis and Clark Rural Water System and the Friend of South Dakota Rural Water award by the South Dakota Rural Water Association, given on January 12, 2006:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eighty-first Legislature of the State of South Dakota, that the South Dakota Legislature and the people of South Dakota are indebted to Mr. Charles W. Kuehl, of Canton, for a life of service to his family, his community, to South Dakota Agriculture, and to South Dakota rural water. His efforts, dedication, and foresight on behalf of his fellow citizens have made South Dakota a better place.

Rep. Pederson moved that the House do now adjourn, which motion prevailed and at 1:54 p.m. the House adjourned.

Karen Gerdes, Chief Clerk