JOURNAL OF THE SENATE

EIGHTY-FIRST SESSION  



TWENTY-SECOND DAY



STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, February 9, 2006

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

     The prayer was offered by the Chaplain, Reverend Richard Fox, followed by the Pledge of Allegiance led by Senate page Mary Grode and Austin Wiese.

     Roll Call: All members present.

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 twenty-first 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.
    Sen. McCracken now presiding

CONSIDERATION OF EXECUTIVE APPOINTMENTS


     The Senate proceeded to the consideration of the executive appointment of Debra C. Flute of Roberts County, Sisseton, 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 Debra C. Flute pursuant to the executive message as found on page 222 of the Senate Journal?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

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

    President Pro Tempore Schoenbeck now presiding.    

REPORTS OF STANDING COMMITTEES


MR. PRESIDENT:

    The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1071 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1015 and returns the same with the recommendation that said bill be referred to the Committee on Appropriations.

Respectfully submitted,
Jay Duenwald, Chair

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 188, which was removed from the table, and returns the same with the recommendation that said bill be amended as follows:

188oa
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. The Legislature of South Dakota finds that the involvement of governmental entities in the sale of goods, commodities, and services is an infringement on the free enterprise system. The Legislature recognizes that the free enterprise system supports and pays for governmental services and competition by governmental entities in some cases is detrimental to the best interests of South Dakota.

     Section 2. No governmental entity, including those adopting home rule pursuant to S.D. Const., Art. IX, §  2 and including the legislative and executive departments may sell goods, commodities, or services to the general public, if those goods, commodities, or services are readily available through a private business or a nongovernmental entity.

     Section 3. The Legislature may by law provide for exceptions to section 2 of this Act in regard to sales of goods, commodities, and services by the State of South Dakota.

     Section 4. The provisions of this Act do not apply to industrial parks or utilities, or to the expansion or creation of infrastructure by a governmental entity for the provision of public services, such as roads, bridges, buildings, water and sewer, and other services not suitable for private enterprise to provide.

     Section 5. If a governmental entity other than the State of South Dakota desires to enter into the sale of goods, commodities, or services that the governmental entity is not presently providing on the effective date of this Act, the governmental entity shall:

             (1)    Propose an ordinance describing the goods, commodities, or services to be provided. The ordinance shall also set forth the costs of such goods, commodities, or services and the source of funds to finance the costs of such goods, commodities, or services;

             (2)    Before adoption of such ordinance the governing body shall hold at least one public hearing. Notice of the time and place of the hearing and a description of the goods, commodities, and services sought to be provided shall be given once at least ten days in advance by publication in an area newspaper of general circulation. Any interested person shall be given a full, fair, and complete opportunity to be heard at the hearing, and the governing body may refuse or adopt the ordinance with or without amendment; and

             (3)    Any ordinance finally adopted by the governing body is subject to referendum. The resolution shall be effective twenty days after the completed publication thereof unless the referendum is invoked. A majority vote of the electorate voting is required to approve the ordinance.

     Section 6. The provisions of this Act shall apply prospectively to the expansion of existing commercial activities or new commercial activities by a governmental entity."

188ota
     On page 1, line 1 of the printed bill, delete everything after " Act to " and insert "prohibit governmental entities from selling certain goods, commodities, and services to the general public."

     On page 1 , delete line 2 .

     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 SJR  1 which was tabled.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB  191 which was deferred to the 36th Legislative Day.

Respectfully submitted,
Eric H. Bogue, Chair

Also MR. PRESIDENT:

    The Committee on Appropriations respectfully reports that it has had under consideration SB 134 and HB 1038, 1239, and 1243 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

    The Committee on Appropriations respectfully reports that it has had under consideration SB 153 and returns the same with the recommendation that said bill be amended as follows:

153he
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. The state treasurer shall transfer forty-two million dollars ($42,000,000) from the railroad trust fund to the property tax reduction fund.

     Section 2. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval."

153htb
     On page 1, line 1 of the printed bill, delete everything after " Act to " and insert "transfer certain moneys from the railroad trust fund to the property tax reduction fund and to declare an emergency."

     On page 1 , delete line 2 .

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Appropriations respectfully reports that it has had under consideration SB 199 which was deferred to the 36th Legislative Day.

Respectfully submitted,
Jerry Apa, Chair

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration HB  1023 and 1024 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB 81, which was removed from the table, and returns the same with the recommendation that said bill be amended as follows:

81ta
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. Terms used in this Act mean:

             (1)    "Communications provider," a provider that offers telecommunications services for a fee to the public, regardless of the facilities used, or a provider of IP-enabled voice service;
             (2)    "Confidential communications records information," information that relates to the quantity, technical configuration, type, destination, incoming calls, outgoing calls, text messaging, location, or amount of use of a service offered by a communications provider subscribed to by any customer of that communications provider which is made available to a communications provider solely by virtue of the relationship between the communications provider and the customer, or information contained in any bill related to the product or service offered by a communications provider and received by any customer of the communications provider;
             (3)    "IP-enabled voice service," the provision of real-time two-way voice communications offered to the public, transmitted through customer premises equipment using TCP/IP protocol, or a successor protocol, for a fee, whether part of a bundle of services or separately, with two-way interconnection capability such that the service can originate traffic to, and terminate traffic from, a public switched telephone network.

     Section 2. No person may obtain, or attempt to obtain, confidential communications records information from a communications provider, without authorization from the customer to whom such confidential communications records information relates, by knowingly and intentionally:

             (1)    Making false or fraudulent statements or representations to an employee of a communications provider;
             (2)    Making false or fraudulent statements or representations to a customer of a communications provider;
             (3)    Providing false documentation to a covered entity knowing that the documentation is false; or
             (4)    Accessing customer accounts of a communications provider via the internet.

     A violation of this section is a Class 1 misdemeanor.

     Section 3. No person may knowingly and intentionally sell, or attempt to sell, confidential communications records information from a communications provider without authorization from the customer to whom such confidential communications records information relates. A violation of this section is a Class 6 felony.

     Section 4. This Act may not be construed to prevent any action by a law enforcement agency, or any officer, employee, or agent of a law enforcement agency, to obtain confidential communications records information from a communications provider in connection with the performance of the official duties of the agency, in accordance with other applicable laws.

     Section 5. This Act does not prohibit a communications provider from obtaining, using, disclosing, or permitting access to any confidential communications records information, either directly or indirectly through its agents as otherwise authorized by law.

     Section 6. Any consumer who claims to have been adversely affected by any act or practice declared to be unlawful by section 2 or section 3 of this Act may bring a civil action for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of the willful act or practice. In addition, the consumer may collect court costs and reasonable attorney fees expended by the consumer to bring an action under this section."

81jb
     On the printed bill, delete everything after the enacting clause and insert:
    "Section 1. Terms used in this Act mean:

             (1)    "Communications provider," a provider that offers telecommunications services for a fee to the public, regardless of the facilities used, or a provider of IP-enabled voice service;

             (2)    "Confidential communications records information," information that relates to the quantity, technical configuration, type, destination, incoming calls, outgoing calls, text messaging, location, or amount of use of a service offered by a communications provider subscribed to by any customer of that communications provider which is made available to a communications provider solely by virtue of the relationship between the communications provider and the customer, or information contained in any bill related to the product or service offered by a communications provider and received by any customer of the communications provider;

             (3)    "IP-enabled voice service," the provision of real-time two-way voice communications offered to the public, transmitted through customer premises equipment using transmission control protocol/internet protocol (TCP/IP), or a successor protocol, for a fee, whether part of a bundle of services or separately, with two-way interconnection capability such that the service can originate traffic to, and terminate traffic from, a public switched telephone network.

     Section 2. No person may obtain, or attempt to obtain, confidential communications records information from a communications provider, without authorization from the customer to whom such confidential communications records information relates, by knowingly and intentionally:

             (1)    Making false or fraudulent statements or representations to an employee of a communications provider;

             (2)    Making false or fraudulent statements or representations to a customer of a communications provider;

             (3)    Providing false documentation to a covered entity knowing that the documentation is false; or

             (4)    Accessing customer accounts of a communications provider via the internet.

     A violation of this section is a Class 1 misdemeanor.

     Section 3. No person may knowingly and intentionally sell, or attempt to sell, confidential communications records information from a communications provider without authorization from the customer to whom such confidential communications records information relates. A violation of this section is a Class 6 felony.

     Section 4. This Act may not be construed to prevent any action by a law enforcement agency, or any officer, employee, or agent of a law enforcement agency, to obtain confidential communications records information from a communications provider pursuant to a subpoena or court order.


     Section 5. This Act does not prohibit a communications provider from obtaining, using, disclosing, or permitting access to any confidential communications records information, either directly or indirectly through its agents as otherwise authorized by law.

     Section 6. This Act does not prohibit a communications provider from obtaining, using, disclosing, or permitting access to any confidential communications records information in connection with the sale or transfer of all or part of its business, the purchase or acquisition of all or part of a business, or the migration of a customer from one communications provider to another.

     Section 7. Any consumer who claims to have been adversely affected by any act or practice declared to be unlawful by section 2 or section 3 of this Act may bring a civil action for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of the willful act or practice. In addition, the consumer may collect court costs and reasonable attorney fees expended by the consumer to bring an action under this section."


81ca
     On the previously adopted amendment (81jb), after Section 7, insert:

     "Section 8. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval."


81cta
     On page 1, line 1 of the printed bill, delete everything after " Act to " and insert "prohibit the acquiring or selling of certain communications records and to declare an emergency."

     On page 1 , delete line 2 .

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB 103, which was reconsidered, and returns the same with the recommendation that said bill be amended as follows:

103ca
     On the printed bill, delete everything after the enacting clause and insert:

    " Section  1.  That § 32-5-42 be amended to read as follows:

     32-5-42.   Any motor vehicle that is the property of this state, the United States, a county, a township, a municipality, a public or nonpublic school accredited by the Department of Education, an Indian mission school in this state, an Indian tribe, a fire department, a federally funded Head Start Program bus, or any bus or van owned by a church, or any vehicle purchased by the state under sections 18 and 16(b)2 of the Urban Mass Transportation Act of 1964 to provide public transportation or specialized transportation or both in rural and urbanized areas may be registered upon application, in the manner provided for other motor vehicles. However, the custodian of the vehicle shall make the application directly to the department. No fees may be charged for the registration of the vehicle. The department, upon payment to it of the actual cost of the plates, shall furnish number plates for the vehicle. All costs collected under the provisions of this section shall be deposited in the license plate special revenue fund. Any disbursement from this fund shall be made by warrants drawn by the state auditor on vouchers duly approved by the department. If the vehicle is used for a private business use or as a commercial motor carrier as defined in § 32-9-1, the operator shall secure vehicle registration pursuant to chapter 32-9 for such use. "


103cta
     On page 1, line 1 of the printed bill, delete everything after " An Act to " and insert "exempt from motor vehicle license fees certain motor vehicles used to transport children to and from certain head start programs."

     On page 1 , delete line 2 .

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

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

1067ca
     On page 1, after line 9 of the printed bill, insert:

    "Section 2. There is hereby appropriated from the general fund the sum of thirty thousand dollars ($ 30,000 ), or so much thereof as may be necessary, to the Board of Regents for the purposes of this Act.

     Section 3. The executive director of the Board of Regents shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by this Act.

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


1067cta
     On page 1, line 2 of the printed bill, after " tuition " insert "and to make an appropriation therefor".

     And that as so amended said bill be referred to the Committee on Appropriations.

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB  170 and 196 which were deferred to the 36th Legislative Day.

Respectfully submitted,
Ed Olson, Chair

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration HB  1111 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration HB  1070 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration SB 98, which was removed from the table, and returns the same with the recommendation that said bill be amended as follows:

98fa
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. That § 35-2-7 be amended to read as follows:

     35-2-7.   Any license granted under this title may be transferred to a new location or to another person. If the transfer is to another person, the licensee must shall show in writing, under oath, that he the licensee has made a bulk sale of the business operated under the license. The bulk sale may be conditioned upon the granting of a transfer of the license. The transferee must shall make an application exactly as if an original applicant, and the application shall take the same course and be acted upon as if an original application. No transfer of any license to another person may be granted until all municipal and state sales taxes incurred by the transferor as a result of the operation of the licensed premises have been paid and that all property taxes levied on such premises which are the liability of the licensee , including municipal and state sales and use taxes, unemployment insurance tax, or any other state tax, are paid or are not delinquent. No transfer of any license to another person may be granted until all property taxes which are the liability of the licensee levied on the licensed premises are paid or are not delinquent. No transfer of any license may be granted from an Indian tribe operating in Indian country controlled by the Indian tribe or from an enrolled tribal member operating in Indian country controlled by the enrolled tribal member's tribe until all use tax incurred as a result of the operation of the licensed premises by nonmembers, and any other state tax, has been remitted or is not delinquent. If the transfer is to a new location, the licensee must shall make application showing all the relevant facts as to such for the new location , which . The application shall take the same course and be acted upon as if an original application. When If a license is transferred, a fee of one hundred fifty dollars is required to continue the unexpired portion of the license.

     Section 2. That § 35-2-24 be amended to read as follows:

     35-2-24.   No license granted under this title may be reissued until all municipal and state sales and use tax taxes incurred by the licensee as a result of the operation of the licensed premises have been paid and that all property taxes which are the liability of the licensee levied on such , including municipal and state sales and use taxes, unemployment insurance tax, or any other state tax, are paid or are not delinquent. No license granted under this title may be reissued until all property taxes which are the liability of the licensee levied on the licensed premises are paid or are not delinquent. No license granted under this title may be reissued to an Indian tribe operating in Indian country controlled by the Indian tribe or to an enrolled tribal member operating in Indian country controlled by the enrolled tribal member's tribe until the Indian tribe or enrolled tribal member remits to the department all use tax incurred by nonmembers as a result of the operation of the licensed premises, and any other state tax has been remitted or is not delinquent.

     Section 3. That § 35-2-25 be amended to read as follows:

     35-2-25.   No license granted pursuant to subdivisions 35-4-2(3), (4), (6), (12), (13), (16), and (17) may be issued unless the applicant has first obtained a sales tax license pursuant to chapter 10-45 , or, if applicable, a use tax license pursuant to chapter 10-46 . The provisions of this section do not apply to a municipality which has procured a retail alcoholic beverage license pursuant to chapter 35-3. "


98fta
     On page 1, line 1 of the printed bill, delete everything after " Act to " and insert "limit the transfer or renewal of certain alcohol beverage licenses."

     On page 1 , delete line 2 .

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration HB 1113 and returns the same with the recommendation that said bill be amended as follows:

1113ja
     On page 1, line 10 of the House engrossed bill, overstrike " or the secretary's designee " .


1113jb
     On page 2 , after line 7, insert:

    "Section 2. 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."


1113jta
     On page 1, line 2 of the House engrossed bill, after " provisions " insert "and to declare an emergency".

     And that as so amended said bill do pass.

Respectfully submitted,
Royal "Mac" McCracken, Chair

Also MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 97 and 146 and finds the same correctly enrolled.

Also MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that SB 42 and 54 were delivered to his Excellency, the Governor, for his approval at 10:04 a.m., February 9, 2006.

Respectfully submitted,
Lee Schoenbeck, Chair

MESSAGES FROM THE HOUSE



MR. PRESIDENT:

    I have the honor to transmit herewith HB 1019, 1103, 1132, 1143, 1149, 1185, 1218, 1222, and 1237 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

    I have the honor to return herewith SB 97 and 146 which have passed the House without change.

Also MR. PRESIDENT:

    I have the honor to transmit herewith HCR 1006 which has been adopted by the House and your concurrence is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS


     Sen. Bogue moved that when we adjourn today, we adjourn to convene at 1:00 p.m. on Friday, February 10, the 23rd legislative day.

     Which motion prevailed.

     HCR 1006:   A CONCURRENT RESOLUTION,   Urging further support from Secretary Donald Rumsfeld and the United States Department of Defense for the South Dakota National Guard.

     Was read the first time.

    The committee referral was waived and HCR1006 was placed on the calendar of Friday, February 10, the 23rd legislative day.

     HCR 1005:   A CONCURRENT RESOLUTION,   Supporting a Taiwan-United States free trade agreement.

    Was read the second time.

     Sen. Bogue moved that the Senate do concur in HCR 1005 as found on page 383 of the House Journal.

     The question being on Sen. Bogue's motion that the Senate do concur in HCR 1005.

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

     So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1005 was concurred in.

     Yesterday, Sen. Kloucek announced his intention to reconsider the vote by which HB 1161 passed.

     No member moved to reconsider the vote by which HB 1161 passed.

CONSIDERATION OF REPORTS OF COMMITTEES


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

     State Affairs on SJR 2 as found on page 403 of the Senate Journal ; also

     Health and Human Services on SB 115 as found on page 402 of the Senate Journal ; also

     Taxation on SB 121 as found on page 400 of the Senate Journal ; also

     Judiciary on SB 138 as found on page 404 of the Senate Journal ; also

     Appropriations on SB 143 as found on page 399 of the Senate Journal ; also

     Judiciary on HB 1075 as found on page 405 of the Senate Journal ; also

     Taxation on HB 1206 as found on page 401 of the Senate Journal be adopted.

     Which motion prevailed.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS


     HB 1019:   FOR AN ACT ENTITLED, An Act to   revise and redirect certain revenues relating to the state capital construction fund, the ethanol fuel fund, the state highway fund, the water and environment fund, and the state general fund.

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

     HB 1103:   FOR AN ACT ENTITLED, An Act to   appropriate money to postsecondary technical institutes for the maintenance and repair of buildings.

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

     HB 1132:   FOR AN ACT ENTITLED, An Act to   create immunity for reporting prenatal alcohol or substance abuse.

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

     HB 1143:   FOR AN ACT ENTITLED, An Act to   authorize the Board of Regents to renovate Wecota Hall at South Dakota State University, and to make an appropriation therefor.

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

     HB 1149:   FOR AN ACT ENTITLED, An Act to   revise certain felony and misdemeanor provisions not located in the criminal code.

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

     HB 1185:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding directed trusts to include custodial accounts.

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

     HB 1218:   FOR AN ACT ENTITLED, An Act to   establish a task force to study education for divorcing parents and visitation and custody matters.

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

     HB 1222:   FOR AN ACT ENTITLED, An Act to   require regental institutions to annually report to the Legislature regarding intellectual diversity.

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

     HB 1237:   FOR AN ACT ENTITLED, An Act to   make an appropriation to fund tax refunds for elderly and disabled persons and to revise the income eligibility requirements for property tax and sales tax refunds.

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

SECOND READING OF CONSENT CALENDAR ITEMS


     HB 1037:   FOR AN ACT ENTITLED, An Act to   revise certain provisions related to the prescription of schedule II controlled drugs by physician assistants, certified nurse practitioners, and certified nurse midwives.

     Was read the second time.

     The question being "Shall HB 1037 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

     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 1171:   FOR AN ACT ENTITLED, An Act to   permit the court to award attorneys' fees in certain custody and visitation cases.

     Was read the second time.

     The question being "Shall HB 1171 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

     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 1189:   FOR AN ACT ENTITLED, An Act to   exempt the value of motor vehicles donated to certain nonprofit corporations from state taxes.


     Was read the second time.

     The question being "Shall HB 1189 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

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

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 53:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding the consideration of assets for the purpose of long-term care eligibility.

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

     Sen. Bogue moved that SB 53 be placed to follow SB 186 on today's calendar.

     Which motion prevailed.

     Sen. Koskan moved that SB 30, 157, 168, 198, and 202 be deferred to Friday, February 10, the 23rd legislative day.

     Which motion prevailed.

     SB 172:   FOR AN ACT ENTITLED, An Act to   authorize certain nonresident members of the South Dakota National Guard to qualify for resident tuition rates.

     Was read the second time.

     The question being "Shall SB 172 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Apa; Greenfield

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

     SB 186:   FOR AN ACT ENTITLED, An Act to   classify the production of certain upland game birds as an agricultural pursuit.

     Was read the second time.

     The question being "Shall SB 186 pass as amended?"

     And the roll being called:

     Yeas 20, Nays 15, Excused 0, Absent 0

     Yeas:
Bartling; Duenwald; Gant; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kloucek; Koetzle; Koskan; Lintz; McNenny; Moore; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Two Bulls

     Nays:
Abdallah; Adelstein; Apa; Bogue; Broderick; Dempster; Duniphan; Earley; Gray; Kelly; Knudson; Kooistra; McCracken; Napoli; Sutton (Duane)

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

     SB 53:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding the consideration of assets for the purpose of long-term care eligibility.

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

53jb

     Sen. Bogue moved that SB 53 be amended as follows:

     On page 1, line 9 of the printed bill, delete everything after " defined " and insert "in this section".
     On page 1 , line 10, delete " department " .

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

    "The look back date is a date thirty-six sixty months prior to the first date on which the individual is both institutionalized and has applied to the Department of Social Services for long-term care".


     On page 1 , line 14, remove the overstrikes from " medical assistance " .

     On page 2 , line 2, remove the overstrikes from " . " .

     Which motion prevailed.

     The question being "Shall SB 53 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

     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 HJR 1003 be immediately considered.

     Which motion prevailed and HJR 1003 was up for immediate consideration.

     HJR 1003:   A JOINT RESOLUTION,   To revise certain constitutional provisions regarding the Legislature.

     Was read the second time.

     Sen. Bogue moved that HJR 1001, 1002, and 1003 be placed to follow HB 1089 on today's calendar.

     Which motion prevailed.

     Sen. Bogue moved that HB 1035, 1072, and 1082 be deferred to Monday, February 13, the 24th legislative day.

     Which motion prevailed.

     HB 1036:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding the certification of an optometrist from another state and to increase the fee for a certificate of registration.

     Was read the second time.

     The question being "Shall HB 1036 pass as amended?"

     And the roll being called:

     Yeas 24, Nays 11, Excused 0, Absent 0

     Yeas:
Bartling; Broderick; Dempster; Duniphan; Earley; Gray; Hansen (Tom); Hanson (Gary); Hundstad; Kloucek; Knudson; Koetzle; Kooistra; Lintz; McCracken; Moore; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

     Nays:
Abdallah; Adelstein; Apa; Bogue; Duenwald; Gant; Greenfield; Kelly; Koskan; McNenny; Napoli

     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 1039:   FOR AN ACT ENTITLED, An Act to   revise certain provisions pertaining to the disposition of funds collected on local exchange service lines, cellular telephones, and radio pager devices.

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

1039jc

     Sen. Adelstein moved that HB 1039 be further amended as follows:

     On page 2, line 13 of the House Health and Human Services Committee engrossed bill, delete " 2009 " and insert "2008".

1039xa

     Sen. Bogue moved that Sen. Adelstein's amendment to HB 1039 be amended as follows:

     On the previous amendment (1039jc), delete "2008" and insert "2007".

     Sen. Abdallah requested a roll call vote.

    Which request was supported.

     The question being on Sen. Bogue's motion that Sen. Adelstein's pending amendment to HB 1039 be amended.

     And the roll being called:

     Yeas 18, Nays 17, Excused 0, Absent 0

     Yeas:
Abdallah; Apa; Bogue; Duenwald; Earley; Gant; Greenfield; Hundstad; Kelly; Knudson; Koskan; Lintz; McNenny; Moore; Napoli; Schoenbeck; Sutton (Dan); Sutton (Duane)

     Nays:
Adelstein; Bartling; Broderick; Dempster; Duniphan; Gray; Hansen (Tom); Hanson (Gary); Kloucek; Koetzle; Kooistra; McCracken; Nesselhuf; Olson (Ed); Peterson (Jim); Smidt; Two Bulls

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

    The question being on Sen. Adelstein's motion that HB 1039 be further amended.

     Which motion prevailed.

     The question now being "Shall HB 1039 pass as amended?"

     And the roll being called:

     Yeas 28, Nays 7, Excused 0, Absent 0

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

     Nays:
Apa; Earley; Greenfield; Kelly; Koskan; Napoli; Schoenbeck


     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 1089:   FOR AN ACT ENTITLED, An Act to   appropriate money for the Vietnam War Memorial.

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

     The question being "Shall HB 1089 pass?"

     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; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

     Excused:
Olson (Ed)

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

     HJR 1003:   A JOINT RESOLUTION,   To revise certain constitutional provisions regarding the Legislature.

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

j1003oe

     Sen. Bogue moved that HJR 1003 be further amended as follows:

     On page 1 of the Senate State Affairs Committee engrossed resolution, delete lines 4 to 14 , inclusive, and insert:

    "Section 1. That at the next general election, the following amendments to Article III of the Constitution of the State of South Dakota, as set forth in sections 2 to 10, inclusive, of this Joint Resolution, which are hereby agreed to, shall be submitted to the electors of the state for approval.

     Section 2. That Article III, section 2 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 2.   After the Legislature elected for the years 1937 and 1938 the The number of members of the house of representatives shall not be less than fifty nor more than seventy-five , and the number of members of the senate shall not be less than twenty-five nor more than thirty-five.

     The sessions of the Legislature shall be biennial except as otherwise provided in this Constitution.

     Section 3. That Article III, section 6 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 6.   The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of § 2 of article XXI of this Constitution , and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route .

     No person may serve more than four consecutive terms or a total of eight consecutive years in the senate and more than four consecutive terms or a total of eight consecutive years in the house of representatives. However, this restriction does not apply to partial terms to which a legislator may be appointed or to legislative service before January 1, 1993 .

     A regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days, excluding Sundays, holidays , and legislative recess, except in cases of impeachment, and members not exceed forty legislative days in each odd-numbered year and shall not exceed thirty-five legislative days in each even-numbered year except in cases of impeachment. Sundays, holidays, and days of legislative recess shall not be included as legislative days. Members of the Legislature shall receive no other pay or perquisites except salary , expenses, per diem , and mileage as provided by law .

     A regular session of the Legislature shall be held in each even-numbered year beginning with the year 1964 and shall not exceed thirty-five legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.

     Section 4. That Article III, section 13 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 13.   Each house shall keep a journal of its proceedings and publish the same from time to time, except such parts as require secrecy, and the as provided by law. The yeas and nays of members on any question shall be taken at the desire of one-sixth of those present and entered upon the journal.

     Section 5. That Article III, section 14 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 14.   In all elections to be made by the Legislature the members thereof shall vote viva voce and their votes shall be entered in the journal.

     Section 6. That Article III, section 15 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 15.   The sessions of each house and of the committee of the whole shall be open, unless when the business is such as ought to be kept secret All legislative sessions and joint sessions shall be open to the public unless a two-thirds majority of the membership declares the business is such as ought to be kept secret. No votes may be taken at any session or meeting closed to the public .

     Section 7. That Article III, section 17 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 17.   Every bill shall be read twice entered upon the journal , by number and title once , when introduced , and once upon shall be read, by number and title, prior to final passage , but one reading at length may be demanded at any time before final passage .

     Section 8. That Article III, section 23 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 23.   The Legislature is prohibited from enacting any private or special laws in the following cases:

     1. Granting divorces.
     2. Changing the names of persons or places, or constituting one person the heir at law of another.
     3. Locating or changing county seats.
     4. Regulating county and township affairs.
     5. Incorporating cities, towns and villages or changing or amending the charter of any town, city or village, or laying out, opening, vacating or altering town plats, streets, wards, alleys and public ground.
     6. Providing for sale or mortgage of real estate belonging to minors or others under disability.
     7. Authorizing persons to keep ferries across streams wholly within the state.
     8. Remitting fines, penalties or forfeitures.
     9. Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever.
     10. Providing for the management of common schools.
     11. Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed.
     But the Legislature may repeal any existing special law relating to the foregoing subdivisions.
     In all other cases where a general law can be applicable no special law shall be enacted may not pass any special or local law when a general law can be made applicable. Whether a general law can be made applicable shall be a matter for judicial determination .

     Section 9. That Article III, section 29 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 29.   Notwithstanding any general or special provisions of the Constitution, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters a natural or man-made disaster or a disaster caused by enemy attack, the Legislature shall have the power and the immediate duty (1) to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations. In the exercise of the powers hereby conferred the Legislature shall in all respects conform to the requirements of this Constitution except to the extent that in the judgment of the Legislature so to do would be impracticable or would admit of undue delay.

     Section 10. That Article III, section 32 of the Constitution of the State of South Dakota, be repealed:

     § 32.   Commencing with the 1992 election, no person may be elected to more than two consecutive terms in the United States senate or more than six consecutive terms in the United States house of representatives. "


     On page 2 , delete lines 1 to 24 , inclusive.

     On page 3 , delete lines 1 to 24 , inclusive.

     On page 4 , delete lines 1 to 21 , inclusive.

     Which motion prevailed.

     The question being "Shall HJR 1003 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

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

     HJR 1001:   A JOINT RESOLUTION,   To revise certain constitutional provisions regarding private and special laws.

     Was read the second time.


j1001oe

     Sen. Bogue moved that HJR 1001 be amended as follows:

     On page 1 of the printed resolution, delete lines 5 to 15 , inclusive, and insert:

    "Section 1. That at the next general election held in the state, the following amendments to Article III and Article IV of the Constitution of the State of South Dakota as set forth in section 2 and 3 of this Joint Resolution, which is hereby agreed to, shall be submitted to the electors of the state for approval.

     Section 2. That Article III be amended by adding thereto a NEW SECTION to read as follows:

     §  33. The members of the senate shall elect one member to preside as president of the senate.

     The members of the house of representatives shall elect one member to preside as speaker of the house of representatives.

     Section 3. That Article IV, section 5 of the Constitution of the State of South Dakota, be amended to read as follows:

     § 5.   The lieutenant governor shall be president of the senate but shall have no vote unless the senators be equally divided. The lieutenant governor shall perform the duties and exercise the powers that may be delegated to him by the Governor.

     Section 4. The provisions of sections 2 and 3 of this Joint Resolution are effective January 1, 2011."


     On page 2 , delete lines 1 to 19 , inclusive.

     Sen. Koskan moved the previous question.

     Which motion prevailed.

     Which motion prevailed and HJR 1001 was so amended.


     The question being "Shall HJR 1001 pass as amended?"

     And the roll being called:

     Yeas 19, Nays 16, Excused 0, Absent 0

     Yeas:
Abdallah; Apa; Bogue; Broderick; Duenwald; Earley; Gant; Gray; Hansen (Tom); Kelly; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Olson (Ed); Schoenbeck; Sutton (Duane)

     Nays:
Adelstein; Bartling; Dempster; Duniphan; Greenfield; Hanson (Gary); Hundstad; Kloucek; Knudson; Koetzle; Moore; Nesselhuf; Peterson (Jim); Smidt; Sutton (Dan); Two Bulls

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

     The question being on the title.

     Sen. Bogue moved that the title to HJR 1001 be amended as follows:

     On page 1, line 1 of the printed resolution, delete everything after "revise" and insert "and establish certain constitutional provisions regarding the lieutenant governor and the presiding officers of the Senate and House of Representatives."

     On page 1 , delete line 2 .

     Which motion prevailed and the title was so amended.

     HJR 1002:   A JOINT RESOLUTION,   To repeal certain voided constitutional provisions regarding term limits for United States senators and representatives.

     Was read the second time.

     Sen. Koskan moved that HJR 1002 be laid on the table.

     The question being on Sen. Koskan's motion that HJR 1002 be laid on the table.

     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; Kloucek; Knudson; Koetzle; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

     Excused:
Kooistra; Nesselhuf


     So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HJR 1002 was laid on the table.

     Sen. Bogue moved that HB 1011, 1134, and 1178 be deferred to Friday, February 10, the 23rd legislative day.

     Which motion prevailed.

     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 failed to concur in Senate amendments to HB 1007 and has appointed Reps. Davis, Jensen, and Halverson as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses.

Respectfully,
Karen Gerdes, Chief Clerk

COMMEMORATIONS


     SC 5   Introduced by:  Senators Sutton (Dan), Bartling, Nesselhuf, and Peterson (Jim) and Representatives Gassman, Garnos, Halverson, and Lange

         A LEGISLATIVE COMMEMORATION,  Honoring Bryan Ellefson for achieving the rank of Eagle Scout.

     WHEREAS,  Bryan Ellefson, son of Mike and Jackie Ellefson of rural Trent, has completed the requirements for and has been examined by the Eagle Scout Board of Review and found worthy of the rank of Eagle Scout; and

     WHEREAS,  the Eagle Scout Award is the highest rank that a young man can achieve within the Boy Scouts of America; and

     WHEREAS,  Bryan Ellefson has shown steady, persistent progress through the ranks to achieve this prestigious award, and has taken an oath to be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent; and
     WHEREAS,  Bryan Ellefson has shown exemplary performance, outstanding character, leadership, loyalty, dedication, and commitment in the Boy Scouts of America, academics, and extracurricular activities:

     NOW, THEREFORE, BE IT COMMEMORATED,  by the Eighty-first Legislature of the State of South Dakota, that Bryan Ellefson, a member of Boy Scout Troop 62, be recognized and congratulated for achieving the elevated rank of Eagle Scout.

     Sen. McCracken moved that the Senate do now adjourn, which motion prevailed and at 4:25 p.m. the Senate adjourned.

Patricia Adam, Secretary