Senate Journal 01/22/2007 2:00 PM

JOURNAL OF THE SENATE

EIGHTY-SECOND SESSION

NINTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Monday, January 22, 2007

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

The prayer was offered by the Chaplain, Pastor Levi Willms, followed by the Pledge of Allegiance led by Senate page Michelle Hollatz.

Roll Call: All members present.

APPROVAL OF THE JOURNAL

The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the eighth day and finds that the following correction should be made:

In the Journal of the eighth legislative day, on page 169, delete line 24 and insert:

"And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Abdallah; Albers; Apa; Bartling; Dempster; Gant; Garnos; Gray; Hansen (Tom); Hanson (Gary); Hauge; Heidepriem; Hoerth; Hundstad; Hunhoff; Jerstad; Katus; Kloucek; Knudson; Koetzle; Lintz; Maher; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schmidt; Smidt; Turbak; Two Bulls

Excused:
Duenwald; Greenfield; Sutton

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."

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

And we hereby move the adoption of the report.

Respectfully submitted,

Bob Gray, Chair

Which motion prevailed.

The oath of office was administered by the President to the following named persons:

Pages (2^nd term) -- Andrea Block, Harrison Hagg, Michelle Hollatz, Nicholas Hoyme, Jose. Nesselhuf, Katrin Profilet, Jonathan Schied, Derrick Schnabel, and Kayla Spiel.

Which were subscribed to and placed on file in the office of the Secretary of State.

COMMUNICATIONS AND PETITIONS

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the Constitution, and subject to your consent, I am honored to inform you that I have appointed Judith Payne, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Transportation.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Transportation.

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the Constitution, and subject to your consent, I am honored to inform you that I have appointed Jerry Hofer, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Human Services.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Health and Human Services.

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the Constitution, and subject to your consent, I am honored to inform you that I have appointed Paul Kinsman, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Revenue and Regulation.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Commerce.

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the Constitution, and subject to your consent, I am honored to inform you that I have appointed Dr. Rick Melmer, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Education.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Education.

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the Constitution, and subject to your consent, I am honored to inform you that I have appointed Jeffrey R. Vonk, Hughes County, Pierre, South Dakota, to the position of the Secretary of the Department of Game, Fish and Parks.

This appointment was effective January 16, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Agriculture and Natural Resources.

January 19, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Section 1-33-10 of the Codified Laws, and subject to your consent, I am honored to inform you that I have appointed Sandra Zinter, Hughes County, Pierre, South Dakota, to the position of Commissioner of the Bureau of Personnel.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on State Affairs.

January 16, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the South Dakota Constitution, and subject to your consent, I am honored to inform you that I have appointed Doneen Hollingsworth, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Health.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Health and Human Services.

January 16, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the South Dakota Constitution, and subject to your consent, I am honored to inform you that I have appointed Timothy Reisch, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Corrections.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Judiciary.

January 16, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the South Dakota Constitution, and subject to your consent, I am honored to inform you that I have appointed Larry Gabriel, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Agriculture.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Agriculture and Natural Resources.

January 16, 2007

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Article IV, Section 9, of the South Dakota Constitution, and subject to your consent, I am honored to inform you that I have appointed Pamela Roberts, Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Labor.

This appointment was effective January 8, 2007.

Sincerely,
M. Michael Rounds
Governor

The President announced the referral of the appointment to the Committee on Commerce.

REPORTS OF STANDING COMMITTEES

The Committee on State Affairs respectfully reports that it has had under consideration HB 1014 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 60 and returns the same with the recommendation that said bill be referred to the Committee on Appropriations.

Respectfully submitted,
Thomas A. Dempster, Chair

Also MR. PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration SB 81 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration HB 1007 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Respectfully submitted,
Kenneth Albers, Chair

Also MR. PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration SB 18 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 9 of the printed bill, after " manipulation " insert " , adjustment, and mobilization of a joint ".

On page 1 , line 9, delete " Manipulation is a procedure that is performed by " .

On page 1 , delete lines 10 to 14 , inclusive.

On page 1 , line 15, delete " range of motion. " .

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration SB 64 and returns the same with the recommendation that said bill be amended as follows:

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

" Section 1. That § 28-6-3.1 be amended to read as follows:

28-6-3.1. Any real or personal assets disposed of by an individual, the individual's spouse, or other person acting on behalf of or at the request of the individual, applying for or receiving Title XIX medical assistance for long-term care and home and community based services through the Department of Social Services at less than fair market value, at any time on or after a look back date as defined in this section, are presumed to be assets to the fullest extent allowable for federal financial participation when determining eligibility.

The look back date is a date thirty-six 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 medical assistance, or in If the asset was disposed of prior to February 8, 2006, and was not a trust or similar legal device, the look back date is a date thirty-six 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 medical assistance. If the asset was disposed of after February 7, 2006, the look back date is a date 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 medical assistance. In the case of a trust or similar legal device that is treated as an asset disposed of at less than fair market value, the look back date is a date 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 medical assistance.

The Department of Social Services shall promulgate rules, pursuant to chapter 1-26, to determine eligibility for medical assistance for long-term care which shall relate to the following areas:

(1) The period of ineligibility when real or personal assets are given away or sold at less than fair market value;

(2) Exemptions; and

(3) Such other standards and requirements as may be necessary for federal financial participation. "

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration SB 65 and returns the same with the recommendation that said bill be amended as follows:

On page 1 of the printed bill, delete lines 5 and 6 , and insert "58-12-23. Notwithstanding any ~~other~~ provision of a ~~health benefit plan, health insurance~~ policy, plan, contract, or certificate, an insurer shall recognize that an application for medical".

On page 2 , delete lines 8 to 10 , inclusive, and insert "58-12-24. Notwithstanding any ~~other~~ provision of a ~~health benefit plan, health insurance~~ policy, plan, contract, or certificate, ~~that is issued, entered into, or renewed after July 1, 2005,~~ no insurer may refuse to".

On page 2 , line 16, after " sought " insert " , ".

And that as so amended said bill do pass.

Respectfully submitted,
Tom Hansen, Chair

Also MR. PRESIDENT:

The Committee on Government Operations and Audit respectfully reports that it has had under consideration SB 7 and 71 and returns the same with the recommendation that said bills do pass.

Respectfully submitted,
Jason M. Gant, Chair

MOTIONS AND RESOLUTIONS

SCR 1 Introduced by: Senators Knudson, Abdallah, Albers, Apa, Bartling, Dempster, Duenwald, Gant, Garnos, Gray, Greenfield, Hansen (Tom), Hanson (Gary), Hauge, Heidepriem, Hoerth, Hundstad, Hunhoff, Jerstad, Katus, Kloucek, Koetzle, Lintz, Maher, McCracken, McNenny, Napoli, Nesselhuf, Olson (Ed), Peterson (Jim), Schmidt, Smidt, Sutton, Turbak, and Two Bulls and Representatives Rhoden, Ahlers, Boomgarden, Bradford, Brunner, Buckingham, Burg, Carson, Cutler, Davis, Deadrick, Dennert, DeVries, Dreyer, Dykstra, Elliott, Engels, Faehn, Feinstein, Gassman, Gillespie, Gilson, Glenski, Hackl, Halverson, Hanks, Hargens, Haverly, Heineman, Hills, Howie, Hunt, Jerke, Juhnke, Kirkeby, Koistinen, Krebs, Lucas, Lust, McLaughlin, Miles, Moore, Nelson, Noem, Novstrup (Al), Novstrup (David), Nygaard, Olson (Betty), Olson (Russell), Olson (Ryan), Pederson (Gordon), Peters, Pitts, Putnam, Rausch, Rave, Rounds, Sigdestad, Steele, Street, Thompson, Tidemann, Turbiville, Van Etten, Van Norman, Vanneman, Vehle, Weems, Wick, and Willadsen

A CONCURRENT RESOLUTION, Expressing the Legislature's support and hope for a full recovery for United States Senator Tim Johnson.

WHEREAS, United States Senator Tim Johnson served for eight years as a member of the South Dakota Legislature, from 1979 to 1986, including four years in the House of Representatives and four years in the Senate; and

WHEREAS, Senator Johnson was elected to the United States House of Representatives in 1986 and served for five terms before being elected to the Senate in 1996; and

WHEREAS, Senator Johnson was elected to the United States Senate in 1996 and reelected in 2002. He serves as a member of the Interior Appropriations Subcommittee, the Transportation, Housing and Urban Development Appropriations Subcommittee, the Agriculture and Rural Development Appropriations Subcommittee, and the Energy and Water Appropriations Subcommittee, and he serves as Chairman of the Military Construction and Veterans Affairs Appropriations Subcommittee; and

WHEREAS, Senator Johnson's distinguished career represents a life devoted to serving the people of South Dakota and the entire nation and a life of character and integrity; and

WHEREAS, Senator Johnson is currently hospitalized as he recovers from a sudden and unexpected challenge to his health. The hearts and prayers of all South Dakotans go out to Senator Johnson and his family as they cope with this challenge:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Eighty-second Legislature of the State of South Dakota, the House of Representatives concurring therein, that the South Dakota Legislature extends its gratitude to Senator Tim Johnson for his life dedicated to public service, its great desire for his family's comfort and sense of peace at this difficult time, and its sincerest wishes for his complete and speedy recovery from his current illness.

Was read the first time.

The President announced the waiving of committee referral.

Sen. Knudson moved that the rules be suspended for the sole purpose of immediately considering SCR 1.

The question being on Sen. Knudson's motion that the rules be suspended for the sole purpose of immediately considering SCR 1.

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Abdallah; Albers; Apa; Bartling; Dempster; Duenwald; Gant; Garnos; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hauge; Heidepriem; Hoerth; Hundstad; Hunhoff; Jerstad; Katus; Kloucek; Knudson; Koetzle; Lintz; Maher; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schmidt (Dennis); Smidt (Orville); Sutton; Turbak; 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.

SCR 1: A CONCURRENT RESOLUTION, Expressing the Legislature's support and hope for a full recovery for United States Senator Tim Johnson.

Was read the second time.

Sen. Knudson moved that SCR 1 as found on page 182 of the Senate Journal be adopted.

The question being on Sen. Knudson's motion that SCR 1 be adopted.

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Abdallah; Albers; Apa; Bartling; Dempster; Duenwald; Gant; Garnos; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hauge; Heidepriem; Hoerth; Hundstad; Hunhoff; Jerstad; Katus; Kloucek; Knudson; Koetzle; Lintz; Maher; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schmidt (Dennis); Smidt (Orville); Sutton; Turbak; Two Bulls

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and SCR 1 was adopted.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Appropriations on SB 53 as found on page 164 of the Senate Journal ; also

Appropriations on SB 57 as found on page 164 of the Senate Journal be adopted.

Which motion prevailed.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 94 Introduced by: Senators McCracken, Napoli, and Peterson (Jim) and Representatives Krebs, McLaughlin, Vanneman, and Willadsen

FOR AN ACT ENTITLED, An Act to require a motor vehicle manufacturer to reimburse a consumer for excise tax and license and registration fees if a vehicle is replaced under lemon law provisions.

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

SB 95 Introduced by: Senators Knudson, Abdallah, Dempster, Gray, Hanson (Gary), Heidepriem, Jerstad, Katus, Koetzle, Lintz, McCracken, Napoli, Nesselhuf, and Peterson (Jim) and Representatives Haverly, Burg, Cutler, Dennert, Dykstra, Gillespie, Hargens, Hunt, Juhnke, Kirkeby, Krebs, Lucas, McLaughlin, Miles, Peters, Thompson, Turbiville, Weems, and Willadsen

FOR AN ACT ENTITLED, An Act to establish a State Board of Technical Institutes, to provide for its powers, duties, and responsibilities, and to provide for the transfer of authority over public postsecondary technical education from the Department of Education to the State Board of Technical Institutes.

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

SB 96 Introduced by: Senators McCracken, Abdallah, Albers, Dempster, Gray, Heidepriem, Koetzle, Lintz, McNenny, Olson (Ed), Smidt (Orville), and Turbak and Representatives Nygaard, Dreyer, Dykstra, Haverly, Lust, McLaughlin, Noem, Pederson (Gordon), Peters, Rhoden, Thompson, and Van Etten

FOR AN ACT ENTITLED, An Act to provide property tax benefits to certain disabled veterans.

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

SB 97 Introduced by: Senator Knudson and Representative Cutler

FOR AN ACT ENTITLED, An Act to revise certain miscellaneous provisions of the trust statutes.

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

SB 98 Introduced by: Senator Knudson and Representative Cutler

FOR AN ACT ENTITLED, An Act to revise or clarify certain provisions relating to the classification and creation of trusts.

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

SB 99 Introduced by: Senator Knudson and Representative Cutler

FOR AN ACT ENTITLED, An Act to adopt the Uniform Principal and Income Act.

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

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 67: FOR AN ACT ENTITLED, An Act to repeal certain provisions related to distribution of funds to school districts based on adequate yearly progress.

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

The question being "Shall SB 67 pass?"

And the roll being called:

Yeas 21, Nays 14, Excused 0, Absent 0

Yeas:
Abdallah; Albers; Apa; Dempster; Duenwald; Gant; Garnos; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hauge; Hunhoff; Knudson; Lintz; McCracken; McNenny; Napoli; Olson (Ed); Schmidt (Dennis); Smidt (Orville)

Nays:
Bartling; Heidepriem; Hoerth; Hundstad; Jerstad; Katus; Kloucek; Koetzle; Maher; Nesselhuf; Peterson (Jim); Sutton; Turbak; 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.

SB 30: FOR AN ACT ENTITLED, An Act to to make an appropriation for costs related to payments to sparse school districts and to declare an emergency.

Was read the second time.

The question being "Shall SB 30 pass?"

And the roll being called:

Yeas 34, Nays 1, Excused 0, Absent 0

Yeas:
Abdallah; Albers; Apa; Bartling; Dempster; Duenwald; Gant; Garnos; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hauge; Heidepriem; Hoerth; Hundstad; Hunhoff; Jerstad; Katus; Kloucek; Knudson; Lintz; Maher; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schmidt (Dennis); Smidt (Orville); Sutton; Turbak; 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 and the title was agreed to.

Sen. Knudson moved that SB 31 be deferred to Tuesday, January 23, the 10^th legislative day.

Which motion prevailed.

Sen. Knudson moved that SB 55 be deferred to Tuesday, January 23, the 10^th legislative day.

Which motion prevailed.

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

REPORTS OF STANDING COMMITTEES

The Committee on Judiciary respectfully reports that it has had under consideration SB 74, 76, and 78 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 75 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 15 of the printed bill, overstrike " qualified " .

On page 2 , line 9, overstrike everything after " (7) " .

On page 2 , overstrike lines 10 and 11 .

On page 2 , line 12, overstrike " (8) " .

On page 4 , line 15, after " imminent " insert " or I am permanently unconscious ".

On page 4 , line 17, after " imminent " insert " or I am permanently unconscious ".

On page 4 , line 19, after " imminent " insert " or I am permanently unconscious ".

On page 5 , line 18, after " imminent " insert " or I am permanently unconscious ".

On page 5 , line 20, after " imminent " insert " or I am permanently unconscious ".

On page 6 of the printed bill, delete lines 18 to 20 , inclusive.

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 77 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 2 of the printed bill, delete " liability " .

And that as so amended said bill do pass.

Respectfully submitted,
Gene G. Abdallah, Chair

Sen. Greenfield moved that the Senate do now adjourn, which motion prevailed and at 2:52 p.m. the Senate adjourned.

Trudy Evenstad, Secretary