JOURNAL OF THE SENATE

EIGHTY-FIRST SESSION  




THIRTY-FIFTH DAY




STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, March 21, 2006

     The Senate convened at 12:00 p.m., pursuant to adjournment, President Pro Tempore Schoenbeck presiding.

     The prayer was offered by the Chaplain, Rev. Brian Christensen, followed by the Pledge of Allegiance led by Senate page Shanda Volek.

     Roll Call: All members present except Sens. Adelstein and Two Bulls who were excused.

APPROVAL OF THE JOURNAL


MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the thirty-fourth 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. Bogue moved to adjust the 2006 Legislative Calendar and designate March 21, 2006, as the thirty-fifth (35th) legislative day due to the inability of the Legislature to meet because of inclement weather.

     Which motion prevailed.

COMMUNICATIONS AND PETITIONS


March 3, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 2, 2006, I approved Senate Bills 69, 83, 99, 142, 159, 165, and 166, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 6, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 6, 2006, I approved Senate Bill 154, and the same has been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 7, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 7, 2006, I approved Senate Bills 19, 44, 73, 81, 98, 130, 143, 148, 153, 157, and 198, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor


March 8, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 8, 2006, I approved Senate Bill 180, and the same has been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 10, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 10, 2006, I approved Senate Bills 1, 100, and 202, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 13, 2006

Mr. President and Members of the Senate:

     I have the honor to inform you that on March 13, 2006, I approved Senate Bill 209, and the same has been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

EXECUTIVE VETOES AND RECOMMENDATIONS


March 13, 2006

The Honorable Dennis Daugaard
President of the Senate
500 East Capitol Avenue
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:


I herewith return Senate Bill 168 and pursuant to Article IV, Section 4, of the South Dakota Constitution, I exercise the LINE ITEM VETO of the same. Senate Bill 168 is entitled, "An Act to appropriate money for enhancement of secondary career and technical education."

The South Dakota Constitution, Article IV, § 4, paragraph 3 provides, in part: "The Governor may strike any items of any bill passed by the Legislature making appropriations."

An appropriation is legislative sanction for the disbursement of the public revenues. The test of whether an act is an appropriation is whether the money may be paid or drawn from the state treasury on authority of the Act. State ex. rel. Mills v. Wilder, 73 S.D. 330, 42 N.W. 2d 891, 1950 SD Lexis 27 (1950); SEE also, Duxbury, McKellips, Symens v. Harding 490 N. W. 2d 740, 745; 1992 Lexis 132 (1992); State ex. rel. Parker v. Youngquist, 69 S.D. 423, 426; 11 N.W.2d 84, 86; 1943 SD LEXIS 54 (1943). (emphasis added)

The problem with Senate Bill 168 is that it makes an annual appropriation of $1 million in Section 1 of the bill, while in Section 4 of the bill, it provides for a reversion of amounts not lawfully expended or obligated by June 30, 2007, in accordance with SDCL 4-8-21.

SDCL 4-8-21 provides that: "At the end of four full fiscal years following the effective date of any special appropriations act, unless such act explicitly states to the contrary, the amount of the appropriation remaining unexpended and which has not been contractually obligated in writing, and approved by the commissioner of finance and management prior to the end of the fiscal year, shall lapse and cease to be available, and revert to the fund from which appropriated. Such encumbered amounts shall be only available for such expenditure for a period of not to exceed two additional fiscal years as determined by the commissioner of finance and management."

SDCL 4-8-19 provides that: "All unexpended annual appropriations at the end of the fiscal year covered by the general appropriations act which have not been contractually obligated in writing and approved by the commissioner of finance and management prior to the end of the fiscal year, shall lapse and cease to be available, and shall revert to the fund from which appropriated. Such encumbered amounts shall be only available for such expenditure for a period of not to exceed two fiscal years as determined by the commissioner of finance and management." (emphasis added)

Senate Bill 168 is an annual appropriation but is not covered by the general appropriations act. Under SDCL 4-8-21, the funds appropriated by Senate Bill 168 are available for four fiscal years unless the act states specifically to the contrary. While it is clear that the funds appropriated in the first year of this act revert by June 30, 2007, what occurs with the annual appropriation in the ensuing years?

Through the exercise of the line item veto, I can eliminate the provision that creates this confusion. Therefore, I exercise the line item veto on Senate Bill 168 as follows.

On page 1, line 4 of the House Engrossed version (adobe acrobat) of the Bill:
After the word "hereby", delete "annually".


Based on the foregoing, I exercise the LINE ITEM VETO on Senate Bill 168 and I respectfully request your concurrence with my action.

Respectfully submitted,
M. Michael Rounds
Governor

MOTIONS AND RESOLUTIONS

     Sen. Bogue moved 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 wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.

     Which motion prevailed and the President Pro Tempore announced as such committee Sens. Bogue, Dempster, and Moore.

     Sen. Bogue moved 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 fix the time of adjournment sine die.

     Which motion prevailed and the President Pro Tempore appointed as such committee Sens. Bogue, Duenwald, and Moore.

    The President now presiding.

MESSAGES FROM THE HOUSE


MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has passed HB 1110 over the veto of the Governor. The veto message of the Governor is found on page 817 of the House Journal.

    We hereby request your favorable consideration in passing HB 1110, the veto of the Governor notwithstanding.


Also MR. PRESIDENT:

    I have the honor to transmit herewith HB 1248 which has passed the House and your favorable consideration is respectfully requested.



Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Michels, Rhoden, 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 wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Michels, Rhoden, 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 pertaining to fixing the time of adjournment sine die for the Eighty-first Legislative Session.

Respectfully,
Karen Gerdes, Chief Clerk

CONSIDERATION OF EXECUTIVE VETOES AND RECOMMENDATIONS


     The Senate proceeded to the consideration of SB 168 pursuant to the line item veto of the Governor and the veto message found on page 751 of the Senate Journal, as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall the recommendation of the Governor as to the line item veto of SB 168 be approved?"

     And the roll being called:

     Yeas 32, Nays 1, Excused 2, Absent 0

     Yeas:
Abdallah; 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)

     Nays:
Apa

     Excused:
Adelstein; Two Bulls

     So the question having received an affirmative vote of a majority of the members-elect, the President declared the recommendation of the Governor approved.



MOTIONS AND RESOLUTIONS


     Sen. Bogue moved that the rules be suspended for the sole purpose of introducing, giving first reading to, dispensing with committee referral, and placing on today's calendar a bill relating to revising certain appropriations in SB 209.

     The question being on Sen. Bogue's motion that the rules be suspended for the sole purpose of introducing, giving first reading to, dispensing with committee referral, and placing on today's calendar a bill relating to revising certain appropriations in SB 209.

     And the roll being called:

     Yeas 31, Nays 2, Excused 2, Absent 0

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

     Nays:
Apa; Hundstad

     Excused:
Adelstein; Two Bulls

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

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 210   Introduced by:  Senators Bogue, Bartling, Earley, and Moore and Representatives Klaudt, Gillespie, Hargens, and Rhoden

       FOR AN ACT ENTITLED, An Act to   revise certain appropriations contained in Senate Bill 209, the General Appropriations Act, for the fiscal year ending June 30, 2007, as previously enacted by the Eighty-first Session of the South Dakota Legislature.

     Was read the first time.


MOTIONS AND RESOLUTIONS


     Sen. Schoenbeck moved that the rules be suspended for the sole purpose of introducing, giving first reading to, dispensing with committee referral, and placing on today's calendar HB 1248 relating to regulation of persons interpreting for the deaf and hard-of-hearing.

     The question being on Sen. Schoenbeck's motion that the rules be suspended for the sole purpose of introducing, giving first reading to, dispensing with committee referral, and placing on today's calendar HB 1248 relating to regulation of persons interpreting for the deaf and hard- of-hearing.

     And the roll being called:

     Yeas 32, Nays 1, Excused 2, Absent 0

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

     Nays:
Hundstad

     Excused:
Adelstein; Two Bulls

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS


     HB 1248:   FOR AN ACT ENTITLED, An Act to   provide for the regulation of persons interpreting for the deaf and hard-of-hearing.

     Was read the first time.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS


     HB 1248:   FOR AN ACT ENTITLED, An Act to   provide for the regulation of persons interpreting for the deaf and hard-of-hearing.

     Was read the second time.



     The question being "Shall HB 1248 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

     Yeas:
Abdallah; 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)

     Excused:
Adelstein; 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.

CONSIDERATION OF EXECUTIVE VETOES AND RECOMMENDATIONS


     The Senate proceeded to the reconsideration of HB 1141 pursuant to the veto of the Governor and the veto message found on page 742 of the House Journal as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall HB 1141 pass, the veto of the Governor notwithstanding?"

     And the roll being called:

     Yeas 1, Nays 32, Excused 2, Absent 0

     Yeas:
Apa

     Nays:
Abdallah; 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)

     Excused:
Adelstein; Two Bulls

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



     Sen. Bogue moved that the Senate do now recess until 3:00 p.m., which motion prevailed and at 2:45 p.m., the Senate recessed.

RECESS


     The Senate reconvened at 3:00 p.m., the President presiding.

CONSIDERATION OF EXECUTIVE VETOES AND RECOMMENDATIONS

(continued)

     The Senate proceeded to the reconsideration of HB 1110 pursuant to the veto of the Governor and the veto message found on page 817 of the House Journal as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall HB 1110 pass, the veto of the Governor notwithstanding?"

     And the roll being called:

     Yeas 26, Nays 7, Excused 2, Absent 0

     Yeas:
Abdallah; Apa; Bartling; Bogue; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hundstad; Kelly; Kloucek; Koetzle; Koskan; Lintz; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Sutton (Dan); Sutton (Duane)

     Nays:
Broderick; Dempster; Hanson (Gary); Knudson; Kooistra; Moore; Smidt

     Excused:
Adelstein; Two Bulls

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

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 210:   FOR AN ACT ENTITLED, An Act to   revise certain appropriations contained in Senate Bill 209, the General Appropriations Act, for the fiscal year ending June 30, 2007, as previously enacted by the Eighty-first Session of the South Dakota Legislature.

     Was read the second time.

     The question being "Shall SB 210 pass?"


     And the roll being called:

     Yeas 29, Nays 4, Excused 2, Absent 0

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

     Nays:
Apa; Greenfield; Koskan; Napoli

     Excused:
Adelstein; 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.

    There being no objection the Senate reverted to Order of Business No. 5

REPORT OF STANDING COMMITTEE

MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the House and Senate have, pursuant to the recommendation of the Governor as to the line item veto of SB 168, sustained that line item veto and that the Office of Enrolling and Engrossing has engrossed the changes and has returned the same to his Excellency, the Governor at 3:40 p.m., March 21, 2006.

Respectfully submitted,
Lee Schoenbeck, 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 Joint-Select Committee for the purpose of fixing the time of adjournment sine die for the Eighty-first Legislative Session.



Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has adopted the report of the Joint-Select Committee for the purpose of informing his Excellency, the Governor, that the Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.

Also MR. PRESIDENT:

    I have the honor to return herewith SB 210 which has passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

     There being no objection, the Senate reverted to Order of Business No. 5.

REPORTS OF STANDING COMMITTEES


MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 210 and finds the same correctly enrolled.

Also MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that SB 210 was delivered to his Excellency, the Governor, for his approval at 4:56 p.m., March 21, 2006.

Respectfully submitted,
Lee Schoenbeck, Chair

REPORTS OF JOINT-SELECT COMMITTEES


MR. PRESIDENT:

    Your Joint-Select Committee appointed to wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors and is ready to adjourn sine die and to ascertain if he has any further communications to make to the Legislature, respectfully reports that it has performed the duty assigned to it and has been informed by his Excellency, the Governor, that he will not appear for the closing of the Eighty-first Legislative Session.

Respectfully submitted,    Respectfully submitted,
Matthew Michels    Eric Bogue
Larry Rhoden    Tom Dempster
Dale Hargens    Garry Moore
House Committee    Senate Committee

     Sen. Bogue moved that the report of the Joint-Select Committee relative to informing the Governor that the Legislature has completed its labors and is ready to adjourn sine die be adopted.

     Which motion prevailed.

Also MR. PRESIDENT:

    Your Joint-Select Committee appointed to consider the matter of adjournment sine die of the Eighty-first Legislative Session respectfully reports that the Senate and House of Representatives adjourn sine die at the hour of 5:09 p.m., March 21, 2006.

Respectfully submitted,    Respectfully submitted,
Matthew Michels    Eric Bogue
Larry Rhoden    Jay Duenwald
Dale Hargens    Garry Moore
House Committee    Senate Committee

     Sen. Bogue moved that the report of the Joint-Select Committee relative to adjournment sine die be adopted.

     Which motion prevailed.

SIGNING OF BILLS


     The President publicly read the title to

     SB 210: FOR AN ACT ENTITLED, An Act to  revise certain appropriations contained in Senate Bill 209, the General Appropriations Act, for the fiscal year ending June 30, 2007, as previously enacted by the Eighty-first Session of the South Dakota Legislature.

     HB 1248: FOR AN ACT ENTITLED, An Act to  provide for the regulation of persons interpreting for the deaf and hard-of-hearing.


     And signed the same in the presence of the Senate.

    The following closing prayer was offered by Reverend Brian Christensen:

    Good and Glorious Father,

     We give You thanks and praise for Your goodness to us. These days of our South Dakota Legislative Session have been filled with lively debate, enthusiastic discussion, and dedicated effort in pursuit of the common good for every citizen. At the conclusion of our allotted time, there is still more work to be done to establish greater justice and secure the welfare for Your people. Nevertheless, we have done what we could and we ask You to continue to enlighten us in our ongoing service to You and Your people. Bless us as we go forth to serve You in our communities, places of employment, and in our homes. Wherever we are, wherever You send us, may we be Your faithful servants and rejoice always in Your blessings. We offer these prayers in gratitude and praise, may You answer them in accordance with Your holy will, You who live and reign forever and ever. Amen.

     Sen. Bogue moved that the Senate do now adjourn sine die, which motion prevailed and at 5:09 p.m. the Senate adjourned.

Patricia Adam, Secretary