Senate Journal 01/30/2007 2:00 PM

JOURNAL OF THE SENATE

EIGHTY-SECOND SESSION

FIFTEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, January 30, 2007

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

The prayer was offered by the Chaplain, Pastor Ruth Ann Loughry, followed by the Pledge of Allegiance led by Senate page John Schied.

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 fourteenth 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,

Bob Gray, Chair

Which motion prevailed.

REPORTS OF STANDING COMMITTEES

The Committee on Judiciary respectfully reports that it has had under consideration SB 91 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration SB 109 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration HB 1103 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 Transportation respectfully reports that it has had under consideration the nomination of Judith Payne of Hughes County, Pierre, South Dakota, to the position of Secretary of the Department of Transportation and returns the same with the recommendation that the Senate advise and consent to the confirmation of said appointment.

Respectfully submitted,
Cooper Garnos, Chair

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 112 and returns the same with the recommendation that 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 95 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Ed Olson, Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration SB 100, 127, and 138 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration SB 121 and tabled the same.

Respectfully submitted,
Jay Duenwald, Chair

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 93 and 159 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 Commerce respectfully reports that it has had under consideration SB 10 and returns the same with the recommendation that said bill be amended as follows:

On page 1 of the printed bill, delete lines 5 to 13 , inclusive, and insert:

"(3) "Excavation," any operation in which earth, rock, or other material in or on below the ground is moved or otherwise displaced by means of tools, equipment, or explosives, and includes grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, and cable or pipe plowing or driving, except ~~tilling~~ :

(a) Tilling of soil and gardening to a depth of twelve inches and the tilling of soil for agricultural purposes to a depth of eighteen inches ~~, road and ditch maintenance that does not extend below eighteen inches of original roadgrade or ditch flowline within the road right-of-way, digging~~ ;

(b) Pot hole repair and grading of an existing public road if the pot hole repair and grading does not extend more than twelve inches below the finished roadway;

(c) Any vehicle operation or operation involving the use of any hand tool, other than a power tool, so long as such operation does not extend more than eighteen inches below the surface of the groundline within the right-of-way;

(d) Any road and ditch repair or road and ditch activity that does not extend more than eighteen inches below the surface of the groundline within the right-of- way, so long as the person performing the repair or activity notifies the one- call notification center in advance of commencing excavation, by telephone or other methods approved by the board, of the proposed repair or activities;

(e) Digging in a cemetery ~~, or digging~~ ; and

(f) Digging in a planned sanitary landfill;".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 160 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 5 of the printed bill, delete " sales or " .

On page 1 , line 5, after " service provider " insert "or manufacturer".

On page 2, line 5 of the printed bill, delete " A state's attorney or the attorney general " and insert "Any person".

On page 2 , delete lines 13 to 19 , inclusive, and insert:

"In the event the plaintiff substantially prevails, the court shall award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees."

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 47 and returns the same with the recommendation that said bill be amended as follows:

On page 2, line 3 of the printed bill, after " which is " insert "or was".

On page 2 , line 4, after " program is " insert "or was".

On page 16 , line 7, delete " under this Act " .

On page 16, after line 14 of the printed bill, insert:

"Section 23. That chapter 58-33 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in this Act applies to a joint powers agreement authorized pursuant to chapter 1- 24."

On page 6, line 18 of the printed bill, delete " file a written report with " and insert "notify".

On page 6 , line 21, after " . " insert:

"A licensee meets the requirements of this section if that licensee reviews the division's website of admitted health insurers and either does not notify the division's MEWA contact if that insurer is listed as an admitted insurer or notifies the division's MEWA contact if that insurer is not listed as an admitted insurer. For the purposes of this section an insurer does not include a stop loss insurer but a stop loss insurer is a licensee under this section."

On page 7 , line 5, delete " files the required report " and insert "notifies the division".

On page 7 , between lines 18 and 19, insert:

"A licensee may provide other evidence to the division to indicate that the licensee did not reasonably know that a product is unauthorized. In making its determination regarding whether a licensee should have known the product is unauthorized and the appropriateness of any penalty for failing to notify the division of such a product, the division shall consider the prior experience and the existence or lack of training of that licensee."

On page 7 , line 21, delete " report filed " and insert "notification made".

On page 7 , line 24, after " filed " insert "or information provided".

On page 8 , line 5, after " report " insert "or notification".

On page 8 , line 9, after " filed " insert "or notification provided".

On page 14 , delete lines 3 to 8 , inclusive, and insert:

"A licensee or other person who acts according to the written advice of the MEWA contact has a defense to any violation of sections 11 to 16, inclusive, of this Act if the information provided by the licensee or other person to the MEWA contact, to the extent material to the MEWA contact's advice, is accurate and complete."

On page 14 , line 11, delete " Nothing in this section relieves a licensee or other person " and insert "Nothing in this Act requires a licensee or other person to notify the division of an

unauthorized product or insurer if that licensee or person has reviewed the division's website and the unauthorized insurer is listed as an admitted insurer."

On page 14 , delete lines 12 and 13 .

On page 4, line 19 of the printed bill, after " . " insert "Nothing in this Act applies to an admitted insurer, nonadmitted insurer, or a MEWA if the arrangement is neither issued to a person in this state nor solicited in this state."

And that as so amended 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 107 which was deferred to the 41^st Legislative Day.

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 13 and finds the same correctly enrolled.

Respectfully submitted,
Bob Gray, Chair

REPORTS OF SELECT COMMITTEE

REPORT OF THE
SENATE SELECT COMMITTEE ON DISCIPLINE AND EXPULSION

MR. PRESIDENT:

Your Select Committee on Discipline and Expulsion respectfully reports that it has completed its investigation of the conduct of Senator Dan Sutton; and, after due deliberation, recommends that the Senate do now endorse the finding of the Select Committee that Senator Dan Sutton should, and by the approval of a three-fifths vote of the Senate shall be, censured for conduct by a senator unbecoming the Senate. Specifically, the Select Committee finds, and requests the Senate to concur in its finding, that Senator Dan Sutton exercised poor judgment in inviting and permitting a serving Senate page to share his motel room and bed. Further, that allegations arising out of the aforesaid poor judgment resulted in public allegations of

misconduct, which, though unproved, have served to bring Senator Dan Sutton and the Honor of the Senate into public disrepute.

Respectfully Submitted,
Dave Knudson, Chair
Select Committee on Discipline and Expulsion

January 29, 2006

MINORITY REPORT OF THE
SENATE SELECT COMMITTEE ON DISCIPLINE AND EXPULSION

MR. PRESIDENT:

    We respectfully dissent from the majority report of the committee recommending censure of Senator Sutton. We are reluctant to dissent from the majority's recommendation, but we feel that it is our duty to do so. There are troubling aspects to this case. We regret the lack of clarity in the evidence. We had hoped that the evidence would have allowed the committee to make a unanimous recommendation, but this is not the case.

    There was no credible evidence presented with regard to any alleged victims other than Mr. Wiese. Although in connection with Mr. Wiese, the evidence is unclear in some respects, when we listened to the testimony of Austin Wiese and Senator Sutton and listened to the tape recording of the February 13, 2006, telephone conversation between Mr. Wiese and Senator Sutton, we concluded that something serious involving unwanted touching of a sexual nature occurred in Senator Sutton's motel room during the period of February 5 to February 7, 2006.

Coupled with that belief is the undisputed fact that in a room with both a king bed and a hide-a-bed sofa, Senator Sutton allowed both he and Mr. Wiese to share the king bed.

Given the serious nature of the allegations and given our belief that the evidence shows an unwanted touching of a sexual nature happened during the nights in question, we cannot agree that censure is a sufficiently serious response to what we see as the misconduct of Senator Sutton. We believe the committee should have made a recommendation of expulsion from the South Dakota Senate. For these reasons, we are filing this minority report.

Senator David Knudson
Senator Bob Gray
Senator Ken McNenny

January 29, 2006

MESSAGES FROM THE HOUSE

I have the honor to return herewith SB 13 which has passed the House without change.

Also MR. PRESIDENT:

I have the honor to transmit herewith HCR 1002 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1016, 1017, 1025, 1027, 1056, 1086, 1093, 1097, 1111, 1118, 1127, and 1136 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

SCR 3 Introduced by: Senators Koetzle, Katus, and Kloucek and Representatives Lucas and Glenski

A CONCURRENT RESOLUTION, Encouraging Congress to pass the Employee Free Choice Act.

WHEREAS, in 1935, the United States established, by law, that workers are free to form unions; and

WHEREAS, the freedom to form or join a union is internationally recognized by the 1948 Universal Declaration of Human Rights as a fundamental human right; and

WHEREAS, the free choice to join with others and bargain for better wages and benefits is essential to economic opportunity and good living standards; and

WHEREAS, unions benefit communities by strengthening living standards, stabilizing tax bases, promoting equal treatment, and enhancing civic participation; and

WHEREAS, states in which more people are union members are states with higher wages, better benefits, and better schools; and

WHEREAS, union workers receive better wages and benefits, earn twenty-nine percent more than workers without a union, are thirty-five percent more likely to have access to health insurance, and are four times more likely to have access to a guaranteed defined-benefit pension; and

WHEREAS, workers across the nation are routinely denied the freedom to form unions and bargain for a better life, with twenty-five percent of private-sector employers illegally firing at least one worker for union activity during organizing campaigns; and

WHEREAS, seventy-seven percent of the public believes it is important to have strong laws protecting the freedom for workers to make their own decision about having a union, and fifty- eight percent of workers would join a union if they had the chance; and

WHEREAS, each year millions of dollars are spent to frustrate workers' efforts to form unions, and most violations of workers' freedom to choose a union occur behind closed doors, with seventy-eight percent of employers forcing employees to attend mandatory anti-union meetings; and

WHEREAS, when the right of workers to form a union is violated, wages fall, race and gender pay gaps widen, workplace discrimination increases, and job safety standards disappear; and

WHEREAS, a worker's fundamental right to choose a union free from coercion and intimidation is a public issue that requires public policy solutions, including legislative remedies; and

WHEREAS, the Employee Free Choice Act has been introduced in the United States Congress in order to restore workers' freedom to join a union; and

WHEREAS, the Employee Free Choice Act will safeguard workers' ability to make their own decisions with these abuses and establish meaningful penalties when employers violate workers' rights:

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 State of South Dakota supports the Employee Free Choice Act which would authorize the National Labor Relations Board to certify a union as the bargaining representative when a majority of employees voluntarily sign authorizations designating that union to represent them and the Act would establish meaningful penalties for violations of a worker's freedom to choose a union; and

BE IT FURTHER RESOLVED, that Congress is encouraged to pass the Employee Free Choice Act to protect and preserve for America's workers their freedom to choose for themselves whether or not to form a union.

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

HCR 1002: A CONCURRENT RESOLUTION, Expressing support for the South Dakota coordinated natural resources conservation plan.

Was read the first time and the President waived the committee referral and placed HCR 1002 on the calendar of January 31, the 16^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Local Government on SB 123 as found on page 267 of the Senate Journal ; also

Health and Human Services on SB 162 as found on page 266 of the Senate Journal be adopted.

Which motion prevailed.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 195 Introduced by: Senators Garnos, Gray, McNenny, Nesselhuf, and Peterson (Jim) and Representatives Wick, Elliott, Hills, Olson (Ryan), and Thompson

FOR AN ACT ENTITLED, An Act to allow member schools of the South Dakota High School Activities Association to remit certain admissions fees to private entities for the support of interscholastic activities.

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

SB 196 Introduced by: Senators Hansen (Tom), Hoerth, Hunhoff, Jerstad, and Knudson and Representatives Van Etten, Cutler, Elliott, Faehn, Gilson, Glenski, McLaughlin, Miles, Novstrup (Al), Novstrup (David), Pitts, Rave, Thompson, and Weems

FOR AN ACT ENTITLED, An Act to revise the places where smoking is prohibited.

Was read the first time and referred to the Committee on Health and Human Services.

SB 197 Introduced by: Senators Dempster, Abdallah, Hanson (Gary), Knudson, and Maher and Representatives Lust, Cutler, Gillespie, and Rave

FOR AN ACT ENTITLED, An Act to adopt the Revised Uniform Anatomical Gift Act.

Was read the first time and referred to the Committee on Health and Human Services.

SB 198 Introduced by: Senators Gant, Apa, Heidepriem, McCracken, Schmidt (Dennis), and Smidt (Orville) and Representatives Willadsen, DeVries, Novstrup (Al), and Weems

FOR AN ACT ENTITLED, An Act to provide for an Open Government Commission.

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

SB 199 Introduced by: The Committee on Education at the request of the Office of the Governor

FOR AN ACT ENTITLED, An Act to increase the compulsory attendance age for school attendance.

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

SB 200 Introduced by: Senators Jerstad, Abdallah, Bartling, Dempster, Garnos, Gray, Hanson (Gary), Hoerth, Hunhoff, Katus, Kloucek, Knudson, Koetzle, Maher, Peterson (Jim), and Sutton and Representatives Van Norman, Engels, Feinstein, Hackl, Hargens, Novstrup (Al), Olson (Ryan), Rausch, and Thompson

FOR AN ACT ENTITLED, An Act to prohibit the state and its political subdivisions from releasing or posting social security numbers on the internet or any other media or domain available to the public.

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

SB 201 Introduced by: Senators Jerstad, Katus, Kloucek, and Koetzle and Representatives Van Norman, Feinstein, and Thompson

FOR AN ACT ENTITLED, An Act to provide for the reduction of the sales and use tax on certain food items.

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

SB 202 Introduced by: Senator Gray and Representative Lust

FOR AN ACT ENTITLED, An Act to increase the exemption from process of certain retirement benefits.

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1016: FOR AN ACT ENTITLED, An Act to exempt law enforcement and emergency vehicle accidents from certain driving records.

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

HB 1017: FOR AN ACT ENTITLED, An Act to make an appropriation from the coordinated soil and water conservation fund to the State Conservation Commission.

Was read the first time and referred to the Committee on Agriculture and Natural Resources.

HB 1025: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the definition of predator/varmint and predator/varmint licenses.

Was read the first time and referred to the Committee on Agriculture and Natural Resources.

HB 1027: FOR AN ACT ENTITLED, An Act to authorize the issuance of temporary snowmobile permits to residents and to increase the fee for such permits.

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

HB 1056: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the practice of counseling.

Was read the first time and referred to the Committee on Health and Human Services.

HB 1086: FOR AN ACT ENTITLED, An Act to revise certain provisions related to the release of a lien by undertaking.

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

HB 1093: FOR AN ACT ENTITLED, An Act to provide for the declaration and administration of certain judicial emergencies.

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

HB 1097: FOR AN ACT ENTITLED, An Act to increase the filing fee for appeals from the decisions, orders, and resolutions of boards of supervisors of townships.

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

HB 1111: FOR AN ACT ENTITLED, An Act to permit local government officials and employees to use electronic payments and to permit the state and its political subdivisions to accept electronic payments.

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

HB 1118: FOR AN ACT ENTITLED, An Act to permit counties to sell tax certificates.

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

HB 1127: FOR AN ACT ENTITLED, An Act to clarify the authority of county commissioners to set their annual salary.

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

HB 1136: FOR AN ACT ENTITLED, An Act to allow certain disabled bow hunters to use special equipment to operate the bow.

Was read the first time and referred to the Committee on Agriculture and Natural Resources.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 87: FOR AN ACT ENTITLED, An Act to permit school district boards to consist of a combination of members who are elected at large and by member representation areas.

Was read the second time.

The question being "Shall SB 87 pass?"

And the roll being called:

Yeas 28, Nays 7, Excused 0, Absent 0

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

Nays:
Jerstad; Katus; Kloucek; Koetzle; Maher; Sutton; 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 118: FOR AN ACT ENTITLED, An Act to permit the Public Utilities Commission to approve tariff mechanisms for the automatic annual adjustment of charges for jurisdictional costs of new environmental measures.

Was read the second time.

The question being "Shall SB 118 pass?"

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 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 163: FOR AN ACT ENTITLED, An Act to provide for the recall of certain school district officials.

Was read the second time.

The question being "Shall SB 163 pass?"

And the roll being called:

Yeas 5, Nays 30, Excused 0, Absent 0

Yeas:
Albers; Gant; Hauge; Napoli; Smidt (Orville)

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

So the bill not having received an affirmative vote of a majority of the members-elect, the President declared the bill lost.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1011: FOR AN ACT ENTITLED, An Act to make an appropriation to provide for the renovation of the National Guard armory in Brookings and to declare an emergency.

Was read the second time.

The question being "Shall HB 1011 pass as amended?"

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 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 1047: FOR AN ACT ENTITLED, An Act to revise the taxation of bundled transactions involving telecommunications services and related services.

Was read the second time.

The question being "Shall HB 1047 pass as amended?"

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 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.

SIGNING OF BILLS

The President publicly read the title to

SB 13: FOR AN ACT ENTITLED, An Act to update certain provisions pertaining to motor carrier safety and transportation of hazardous materials.

And signed the same in the presence of the Senate.

Sen. Napoli moved that the Senate do now adjourn, which motion prevailed and at 2:45 p.m. the Senate adjourned.

Trudy Evenstad, Secretary