Senate Journal 2/11/2010 02:00 PM

JOURNAL OF THE SENATE

EIGHTY-FIFTH SESSION

NINETEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, February 11, 2010

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

The prayer was offered by the Chaplain, Pastor Howard Grinager, followed by the Pledge of Allegiance led by Senate pages Laci Hale and Tiffany Newman.

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 eighteenth 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.

COMMUNICATIONS AND PETITIONS

February 11, 2010

Mr. President and Members of the Senate:

I have the honor to inform you that on February 10, 2010, I approved Senate Bills 39 and 40, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

February 9, 2010

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

Re: Appointment of Brian K. Zeeb

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of SDCL 24-16A-1 and the Governor's Executive Order 2002-05 and subject to your confirmation, I have the honor to inform you that I have appointed Brian K. Zeeb to the South Dakota Council for Interstate Adult Offender Supervision. I have enclosed the Statement of Financial Interest and Executive Appointment.

This appointment is effective immediately and expires August 23, 2013.

Sincerely,
Marty J. Jackley
ATTORNEY GENERAL

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

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration SB 70, which was removed from the table, and returns the same without recommendation.

Respectfully submitted,
Mike Vehle, Chair

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1108 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 145 and returns the same with the recommendation that said bill be amended as follows:

145ca

On page 2, line 8, after "semesters;" insert "and".

On page 2 of the printed bill, delete lines 9 to 20, inclusive, and insert:

"(2) ~~Complete fifteen credit hours of instruction per semester. The student shall enroll in and complete at least fifteen credit hours of instruction in each consecutive spring and fall term.~~ Earn thirty-two credit hours prior to the beginning of the second year of instruction, sixty-four credit hours prior to the beginning of the third year of instruction, and ninety-six credit hours prior to the fourth year of instruction. If the executive director of the Board of Regents determines that a student's failure to enroll or to maintain continued enrollment occurred as a direct result of legitimate factors outside the student's control, or has resulted from the student's participation in an activity that in the executive director's judgment provides knowledge or experience that will enhance the student's academic pursuits, the executive director may extend the student's eligibility to participate in the program for up to two additional years, if the student does not enroll in a noneligible institution~~; and~~. ".

On page 2, overstrike lines 21 to 24, inclusive.

Overstrike page 3.

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 191 and returns the same with the recommendation that said bill be amended as follows:

191ca

On page 2, line 12, of the printed bill, after "§ 26-6-14.2," insert "be a federally funded Head Start program pursuant to 42 USC 9801 et seq., as amended to January 1, 2010,".

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 194 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Cooper Garnos, Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1058 and 1101 and returns the same with the recommendation that said bills do pass and be placed on the consent calendar.

Respectfully submitted,
Larry Rhoden, Chair

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 2 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 SB 108 and returns the same with the recommendation that said bill be amended as follows:

108ja

On page 1, line 4, of the printed bill, delete "plan or policy of insurance" and insert "contract between an insurer and a dentist".

On page 1, line 5, delete "plan or policy" and insert "contract".

On page 1, line 6, before "plan" insert "insured's".

On page 1, line 7, after "plan" insert ", policy, or contract".

On page 1, line 8, delete "changes" and insert "charges".

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 81 and returns the same with the recommendation that said bill be amended as follows:

81jb

On page 1, line 7, of the printed bill, after "expire" insert "and the records of the depository institution do not disclose the identity of the actual owner".

On page 1, line 11, after "multiple" insert "unaffiliated".

On page 1, after line 12, insert:

"Section 2. That chapter 43-41B be amended by adding thereto a NEW SECTION to read as follows:

Notwithstanding section 1 of this Act, the provisions of this chapter do not apply to any rewards card. For the purposes of this Act, a rewards card is any awards, rewards, rebate, loyalty, incentive, or promotional card for which no money was paid by the cardholder.

Section 3. That chapter 43-41B be amended by adding thereto a NEW SECTION to read as follows:

Any unredeemed open-loop prepaid card or rewards card is subject only to any rights of a purchaser or owner of such card and is not subject to any claim made by any state acting on behalf of a purchaser or owner."

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 117 and 119 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Russell Olson, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 12 and returns the same with the recommendation that said bill be amended as follows:

12rb

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

"Section 1. That § 22-24B-19 be amended to read as follows:

22-24B-19. To be eligible for removal from the registry as a Tier I offender, the petitioner shall show, by clear and convincing evidence, that all of the following criteria have been met:

(1) At least ten years have elapsed since the date the petitioner first registered pursuant to this chapter. For purposes of this subdivision, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility does not count toward the ten-year calculation, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense;

(2) The crime requiring registration was for:

(a) Statutory rape under subdivision 22-22-1(5), or an attempt to commit statutory rape under subdivision 22-22-1(5), but only if the petitioner was twenty-one years of age or younger at the time the offense was committed or attempted;

(b) A juvenile adjudication for a sex crime as defined in § 22-24B-1(1), 22-24B-1(9), or 22-22-7.2; or

© Sexual contact under § 22-22-7 if the victim was between the ages of thirteen and sixteen and the petitioner was at least three years older than the victim, but only if the petitioner was twenty-one years of age or younger at the time the offense was committed;

(d) Misdemeanor indecent exposure under § 22-24-1.2; or

(e) An out-of-state, federal or court martial offense that is comparable to the elements of the crimes listed in (a) or, (b), (c), or (d);

(3) The circumstances surrounding the crime requiring registration did not involve a child under the age of thirteen;

(4) The petitioner is not a recidivist sex offender. A recidivist sex offender is a person who has been convicted or adjudicated for more than one sex crime listed in subdivisions 22-24B-1(1) to (17), inclusive, regardless of when those convictions or adjudications occurred. For purposes of this subdivision, a conviction or adjudication includes a verdict or plea of guilty; a verdict or plea of guilty but mentally ill; a plea of nolo contendere; a suspended imposition of sentence granted under § 23A-27-13, regardless of whether it has been discharged; a deferred prosecution agreement entered by a prosecutor; and a determination made in another state, federal jurisdiction, or courts martial that is comparable to any of these events; and;

(5) The petitioner has completely and truthfully complied with the registration and re-registration requirements imposed under chapter 22-24B; and

(6) Petitioner demonstrates to the satisfaction of the court that he or she does not pose a risk or danger to the community.

For purposes of this section, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility does not count toward the ten-year calculation, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense.

Section 2. That chapter 22-24B be amended by adding thereto a NEW SECTION to read as follows:

To be eligible for removal from the registry as a Tier II offender, the petitioner shall show, by clear and convincing evidence, that all of the following criteria have been met:

(1) At least twenty-five years have elapsed since the date the petitioner first registered pursuant to this chapter;

(2) The crime requiring registration was for:

(a) Incest as defined in § 22-22A-2; or

(b) An out-of-state, federal or court martial offense that is comparable to the elements of incest as defined in § 22-22A-2;

(3) The circumstances surrounding the crime requiring registration did not involve a child under the age of thirteen;

(4) The petitioner is not a recidivist sex offender;

(5) The petitioner has substantially complied in good faith with the registration and re-registration requirements imposed under chapter 22-24B; and

(6) Petitioner demonstrates to the satisfaction of the court that he or she does not pose a risk or danger to the community.

For purposes of this section, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility does not count toward the twenty-five year calculation, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense.

Section 3. That chapter 22-24B be amended by adding thereto a NEW SECTION to read as follows:

Any person, who is on the sex offender registry and who is not eligible for removal pursuant to sections 1 and 2 of this Act, is a Tier III offender and is thus ineligible for removal from the registry for life.

Section 4. That chapter 22-24B be amended by adding thereto a NEW SECTION to read as follows:

A recidivist sex offender is a person who has been convicted or adjudicated for more than one sex crime listed in § 22-24B-1, regardless of when those convictions or adjudications occurred. For purposes of this section, a conviction or adjudication includes a verdict or plea of guilty; a verdict or plea of guilty but mentally ill; a plea of nolo contendere; a suspended imposition of sentence granted under § 23A-27-13, regardless of whether it has been discharged; a deferred prosecution agreement entered by a prosecutor; and a determination made in another state, federal jurisdiction, or courts martial that is comparable to any of these events.

Section 5. That § 22-24B-20 be amended to read as follows:

22-24B-20. If the court finds that all of the criteria described in § 22-24B-19 or in section 2 of this Act have been met and that the petitioner is not likely to offend again, then the court may, in its discretion, enter an order terminating the petitioner's obligation to register in this state and require the removal of petitioner's name from the registry. However, if the court finds that the offender has provided false, misleading, or incomplete information in support of the petition, or failed to serve the petition and supporting documentation upon the respondent, then the petition may be denied. If the petition is denied, the petitioner may not file a subsequent petition for at least two years from the date the previous petition was denied.

Section 6. That § 22-24B-17 be amended to read as follows:

22-24B-17. Any person required to register under this chapter who is eligible to seek removal from the registry as provided for in § 22-24B-19 or in section 2 of this Act may petition the circuit court in the county where the person resides for an order terminating the person's obligation to register. If the person seeking removal from the registry is not a resident of this state, but is required to register under other requirements of § 22-24B-2, then the person may petition the circuit court of any county of this state where the person is currently registered. The offender shall serve the petition and all supporting documentation on the state's attorney in the county where the offender is currently registered, the office of the prosecutor in the jurisdiction

where the offense occurred, and the Attorney General. The Attorney General's office shall respond to each petition to request removal from the sex offender registry.

No person petitioning the court under this section for an order terminating the person's obligation to register is entitled to court appointed counsel, experts, or publicly funded witnesses. "

12rd

On the previously adopted amendment (12rb), in Section 4, after the first sentence, insert "However, no person is a recidivist sex offender unless the person committed the second sex crime after having been convicted or adjudicated of a previous sex crime.

12re

On the previously adopted amendment (12rb), in Section 1, subdivision (5), overstrike "completely and truthfully" and insert "substantially".

On the previously adopted amendment (12rb), in Section 1, subdivision (5), after "complied" insert "in good faith".

12rh

On the previously adopted amendment (12rb), in Section 3, delete "and is thus ineligible for removal from the registry for life".

On the previously adopted amendment (12rb), after Section 6, insert a new section as follows:

"Section 7. That chapter 22-24B be amended by adding thereto a NEW SECTION to read as follows:

The sex offender registry shall consist of three tiers as provided for in this Act. Placement in Tier III requires registrants to register throughout their lifetime. Placement in Tier II requires registrants to register for a minimum of twenty-five years. Placement in Tier I requires registrants to register for a minimum of ten years."

12rj

On the previously adopted amendment (12rb), in Section 2, subdivision (2)(b), after ";" insert "or (c) Bestiality as set forth in § 22-22-42;".

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 132 and returns the same with the recommendation that said bill be amended as follows:

132ra

On page 1, line 7, of the printed bill, delete "to determine parentage".

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 103 and returns the same with the recommendation that said bill be amended as follows:

103ja

On page 10, line 16, of the printed bill, delete "54" and insert "55".

On page 11, between lines 8 and 9, insert:

"Section 10. That chapter 55-4 be amended by adding thereto a NEW SECTION to read as follows:

A certificate of a trustee or of trustees of a trust in support of a real property transaction may be substantially in the following form:

This instrument was prepared by:
__________________________
__________________________
__________________________
(insert name, address and phone number)

CERTIFICATE
OF TRUST

STATE OF SOUTH DAKOTA)
: SS
COUNTY OF MINNEHAHA )

________________________, being duly sworn under oath, does hereby state as follows:

1. A trust instrument or Will executed on _________________ established a trust which is still in existence on the date this Certificate is signed. The name of the trust, if it has been named, is _____________________. (Insert n/a if the Trust does not have a name.)

2.    The name of the settlor, grantor, trustor, testator or testatrix, as the case may be, is __________________________________________________________________.

3.    The name of each original trustee and the name and address of each trustee and each trust protector currently empowered to act under the trust instrument or Will on the date of the execution of this Certificate of Trust is as follows:
    ________________________________________________________________________
    _______________________________________________________________________.

4.    The person who signs this certificate below certifies that the trust instrument or Will contains the following powers which are given to the trustee:
    _______________________________________________________________________,
    the following powers are given to the trust protector:
    ______________________________________________________________________ ,
    and further contains the following provisions:
     ______________________________________________________________________ .
    The number of trustees required to join in an action by the provisions of the trust instrument or Will to is ___________.

5.    The trust is revocable/irrevocable./The following person(s) has/have the right to revoke the trust: _____________________________________________________________.
    The trust has not been revoked.

6. The trust is/is not supervised by a court. The following restrictions are currently imposed by the court on the trustee(s) ability to act even though actions so restricted may be permitted by statute or the terms of the trust instrument or Will:
_______________________________________________________________________.

7. The Trustee intends to convey the following property owned by the Trust:
_______________________________________________________________________.

8. The trust has not been modified or amended in any manner that would cause the representations contained in this Certificate of Trust to be incorrect. The statements contained in this Certificate of Trust are true and correct.

___________________________________

STATE OF SOUTH DAKOTA    )
        : SS
COUNTY OF             )

On this, the _____ day of _______________, 20___, before me, the undersigned officer, personally appeared, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that she/he executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

______________________________________

Notary Public, South Dakota
My Commission expires: __________".

On page 12, delete lines 6 to 24, inclusive, and insert:

"(a) After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, and expenses.

(b) A trustee may:

(1) If the trustee has knowledge of a creditor or potential creditor, provide written notice to the creditor or potential creditor at their last known address, advising the creditor that a claim may not be paid if the creditor fails to present a claim within sixty days of the date of such notice; and

(2) For all unknown creditors and all creditors which the trustee, in good faith, is unable to locate, publish notice to such creditors once a week for three successive weeks in a legal newspaper in the county:

(A) Where the settlor was last a resident if the deceased settlor was a resident of South Dakota; or

(B) Where the principal administration of the trust takes place if the deceased settlor was a nonresident of South Dakota.

The published notice shall state that creditors of a deceased settlor must present their claim within four months after the date of the first publication of the notice or any claim or collection efforts which otherwise could have been asserted or enforced against the trust or assets thereof may be barred.

For purposes of this section, a trustee has knowledge of a creditor or potential creditor if the trustee is aware that the creditor has demanded payment from the settlor or the settlor's estate.

(c) Creditors of the deceased settlor who are given written notice or receive notice by publication are barred if no claim is filed within the applicable period.

(d) Claims by a creditor of a deceased settlor may be presented to the trustee by any of the following three methods:

(1) The creditor may deliver or mail to the trustee a written statement of the claim indicating its basis, the name and address of the creditor, and the amount claimed;

(2) If the trust is court-supervised, the creditor may file a written statement of the claim with the clerk of courts and mail or deliver a copy thereof to the trustee. The claim is deemed presented on the first to occur of the receipt of the written statement of claim by the trustee, or the filing of the claim with the clerk of courts; or

(3) The creditor may commence a proceeding against the trust in any court where the trustee may be subject to jurisdiction, to obtain payment of the claim. Such a claim is deemed presented on the date the proceeding is commended.

(e) If a claim is not yet due, the date when it will become due shall be stated in the written statement of the claim. If the claim is contingent or unliquidated, the nature of the uncertainty shall be described. If the claim is secured, the nature of the security shall be described. Failure to describe correctly the nature of the security or uncertainty, or the due date of a claim not yet due, does not invalidate the presentation.

(f) No presentation of claim is required in regard to matters claimed in proceedings against a settlor which were pending at the time of the death of the settlor in any court.

(g) No trustee may incur liability for a nonnegligent or nonwillful failure to give notice to a particular creditor.

(h) If the applicable assets of the trust that are otherwise subject to the claim of an unbarred creditor are insufficient to pay the claim in full, the trustee shall make payment in the following order:

(1) Costs and expenses relating to administration of the trust or estate;

(2) Reasonable funeral expenses of the settlor;

(3) Debts and taxes with preference under federal law;

(4) Debts and taxes with preference under other laws of this state;

(5) All other claims.

(i) In paying claims of a deceased settlor, the trustee shall give no preference in the payment of any claim over any other claim of the same class, and a claim due and payable is not entitled to a preference over claims not yet due except as to claims which are compromised in part or in full.

(j) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to pay creditor claims with the trust property in accordance with the terms of the trust and this section. The trustee is not subject to liability for doing so unless:

(1) The trustee knows of a pending proceeding contesting the validity of the trust or regarding a creditor's claim; or

(2) A potential contestant or creditor has notified the trustee of a possible proceeding to contest the trust or regarding a creditor's claim, and a proceeding is commenced within sixty days after the contestant sent the notification.

However, the trustee may pay creditor claims without liability so long as the trustee determines that, at the time of the determination, the assets of the trust are reasonably adequate to allow for payment of the claim in view of the type of proceeding, the amount at issue, and the likelihood of its probable success.

(k) A creditor who has received a payment from the trustee, if it is later determined to have been invalid, or wrongfully paid under this section, is liable to return any payment received to the trustee. If the creditor refuses to return the payment, the creditor may be liable for all costs, including attorney's fees, incurred for the recovery of the payment.

(l) Except as to creditors barred by publication or by written notice, the statute of limitations provisions of §§ 29A-3-802(b) and 29A-3-803(a)(3) apply.

(m) Nothing in this section requires a trustee to give notice to a secured creditor of a settlor, nor diminish the rights of a secured creditor under applicable law.".

Delete pages 13 and 14, inclusive.

On page 25, after line 17, insert:

"Section 27. That § 55-16-5 be amended to read as follows:

55-16-5. Any individual may serve as ~~a fiduciary~~ an investment trust advisor described in subdivision ~~55-1B-1(4)~~ 55-1B-1(6), notwithstanding that such individual is the transferor of the qualified disposition, but such an individual may not otherwise serve as a fiduciary of a trust that is a qualified disposition except with respect to the retention of the veto right permitted by subdivision 55-16-2(2). "

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 5, 6, 9, 43, 44, 163, and 167 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Gene G. Abdallah, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to transmit herewith HB 1033, 1051, 1060, 1117, 1176, 1190, and 1214 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HCR 1008 which has been adopted by the House and your concurrence is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Knudson moved that when we adjourn today, we adjourn to convene at 12:30 p.m. on Friday, February 12, the 20^th legislative day.

Which motion prevailed.

HCR 1008: A CONCURRENT RESOLUTION, Urging Congress to oppose current energy and climate legislation under consideration in the United States Senate.

Was read the first time, the President waived the referral to committee, and placed HCR 1008 on the calendar of Friday, February 12, the 20^th legislative day.

HCR 1006: A CONCURRENT RESOLUTION, Urging the United States Forest Service, the National Park Service, the Bureau of Land Management, and other federal agencies to actively manage mountain pine beetle infestations on lands under their control in South Dakota.

Was read the second time.

Sen. Rhoden moved that the Senate do concur in HCR 1006 as found on page 214 of the House Journal.

The question being on Sen. Rhoden's motion that the Senate do concur in HCR 1006.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Kloucek

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1006 was concurred in.

CONSIDERATION OF REPORTS OF COMMITTEES

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

State Affairs on SB 76 as found on page 275 of the Senate Journal; also

Health and Human Services on SB 96 as found on page 274 of the Senate Journal; also

Health and Human Services on SB 152 as found on page 275 of the Senate Journal; also

Taxation on SB 172 as found on page 272 of the Senate Journal be adopted.

Which motion prevailed.

The Senate proceeded to the consideration of the executive reappointment of George Nikolas of Brown County, Aberdeen, South Dakota, to the South Dakota Railroad Authority.

The question being “Does the Senate advise and consent to the executive reappointment of George Nikolas pursuant to the executive message as found on page 39 of the Senate Journal?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Abdallah

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

The Senate proceeded to the consideration of the executive reappointment of Warren Lotsberg of Beadle County, Huron, South Dakota, to the South Dakota Railroad Authority.

The question being “Does the Senate advise and consent to the executive reappointment of Warren Lotsberg pursuant to the executive message as found on page 39 of the Senate Journal?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

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

The Senate proceeded to the consideration of the executive reappointment of Kory Menken of Union County, Dakota Dunes, South Dakota, to the South Dakota Lottery Commission.

The question being “Does the Senate advise and consent to the executive reappointment of Kory Menken pursuant to the executive message as found on page 128 of the Senate Journal?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1033: FOR AN ACT ENTITLED, An Act to permit and regulate the blending of natural gasoline and ethyl alcohol and to provide for an ethanol broker license.

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

HB 1051: FOR AN ACT ENTITLED, An Act to revise certain allocations for disabilities in the state aid for special education formula.

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

HB 1060: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the refunds for new or expanded agricultural facilities and the refunds for new or expanded business facilities.

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

HB 1117: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the hiring by school districts of persons convicted of felony drug distribution.

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

HB 1176: FOR AN ACT ENTITLED, An Act to authorize certain licensed hunters who are quadriplegic to hunt using a designated hunter.

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

HB 1190: FOR AN ACT ENTITLED, An Act to revise the high school course requirements and the requirements necessary to maintain eligibility for the South Dakota opportunity scholarship program.

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

HB 1214: FOR AN ACT ENTITLED, An Act to allow for the acquisition of the fee ownership of highway right-of way land for certain local governments.

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

SECOND READING OF CONSENT CALENDAR ITEMS

SB 97: FOR AN ACT ENTITLED, An Act to provide that salvage titles be issued for stolen vehicles and to provide that thefts be noted on the title of recovered motor vehicles.

Was read the second time.

The question being “Shall SB 97 pass as amended?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 109: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the deposit of county funds related to the 24/7 sobriety program.

Was read the second time.

The question being “Shall SB 109 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 allow the register of deeds to electronically preserve certain documents.

Was read the second time.

The question being “Shall SB 118 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 125: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to violations associated with the statewide one-call notification system.

Was read the second time.

The question being “Shall SB 125 pass as amended?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 1007: FOR AN ACT ENTITLED, An Act to repeal, update, and make form and style revisions to certain statutes related to the Aeronautics Commission.

Was read the second time.

The question being “Shall HB 1007 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 1032: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the reporting period for the collection of the use tax.

Was read the second time.

The question being “Shall HB 1032 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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 1039: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the use of an exemption certificate for tax purposes.

Was read the second time.

The question being “Shall HB 1039 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Abdallah

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

Sen. Knudson moved that SB 124 and SJR 3 be placed to precede SB 79 on today's calendar.

Which motion prevailed.

SB 124: FOR AN ACT ENTITLED, An Act to equate, within certain limits, the annual percentage increase in per student funding for general education and for special education to the projected change in state general fund revenue, and to require the Legislature to estimate general fund revenues for the current fiscal year and the next fiscal year.

Was read the second time.

124cc

Sen. Jerstad moved that SB 124 be further amended as follows:

On page 4, line 15, of the printed bill, delete "$4,804.60" and insert "$4,862.26".

Sen. Rhoden moved the previous question.

Which motion prevailed.

Sen. Kloucek requested a roll call vote.

Which request was supported.

The question being on Sen. Jerstad's motion that SB 124 be further amended.

And the roll being called:

Yeas 17, Nays 18, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Gillespie; Hanson (Gary); Heidepriem; Hundstad; Jerstad; Kloucek; Maher; Merchant; Miles; Nesselhuf; Peterson; Turbak Berry

Nays:
Brown; Dempster; Fryslie; Gant; Garnos; Gray; Hansen (Tom); Haverly; Howie; Hunhoff (Jean); Knudson; Nelson; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Tieszen; Vehle

So the motion not having received an affirmative vote of a majority of the members present, the President declared the motion lost.

The question being “Shall SB 124 pass as amended?”

And the roll being called:

Yeas 27, Nays 8, Excused 0, Absent 0

Yeas:
Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Heidepriem; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Miles; Nelson; Nesselhuf; Olson (Russell); Peterson; Tieszen; Turbak Berry; Vehle

Nays:
Abdallah; Haverly; Howie; Maher; Merchant; Novstrup (Al); Rhoden; Schmidt

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.

SJR 3: A JOINT RESOLUTION, Proposing and submitting to the electors at the next general election an amendment to Article VI of the Constitution of the State of South Dakota, relating to the right of individuals to vote by secret ballot.

Was read the second time.

The question being “Shall SJR 3 pass?”

And the roll being called:

Yeas 22, Nays 13, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gray; Hansen (Tom); Haverly; Howie; Hunhoff (Jean); Knudson; Maher; Nelson; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Tieszen; Vehle

Nays:
Ahlers; Bartling; Gillespie; Hanson (Gary); Heidepriem; Hundstad; Jerstad; Kloucek; Merchant; Miles; Nesselhuf; Peterson; Turbak Berry

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

SB 79: FOR AN ACT ENTITLED, An Act to revise certain format requirements relating to real estate documents to be filed with the register of deeds.

Was read the second time.

The question being “Shall SB 79 pass?”

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Garnos; Howie; Nesselhuf

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 98: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the yielding of the right-of-way to pedestrians making a crossing of a highway.

Was read the second time.

The question being “Shall SB 98 pass?”

And the roll being called:

Yeas 20, Nays 13, Excused 2, Absent 0

Yeas:
Abdallah; Adelstein; Fryslie; Hansen (Tom); Hanson (Gary); Haverly; Howie; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Miles; Nelson; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Tieszen; Vehle

Nays:
Bartling; Bradford; Brown; Dempster; Gant; Gillespie; Gray; Heidepriem; Hundstad; Merchant; Nesselhuf; Peterson; Turbak Berry

Excused:
Ahlers; Garnos

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 131: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning when motor vehicles are required to have lighted front and rear lamps.

Was read the second time.

President Pro Tempore Gray now presiding.

The President now presiding.

The question being “Shall SB 131 pass?”

And the roll being called:

Yeas 24, Nays 10, Excused 1, Absent 0

Yeas:
Adelstein; Ahlers; Brown; Dempster; Fryslie; Gant; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Heidepriem; Howie; Jerstad; Knudson; Maher; Merchant; Miles; Nelson; Olson (Russell); Peterson; Rhoden; Tieszen; Turbak Berry; Vehle

Nays:
Abdallah; Bartling; Bradford; Haverly; Hundstad; Hunhoff (Jean); Kloucek; Nesselhuf; Novstrup (Al); Schmidt

Excused:
Garnos

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 141: FOR AN ACT ENTITLED, An Act to establish certain provisions regarding documents or instruments filed with the register of deeds that may contain personally identifiable information.

Was read the second time.

The question being “Shall SB 141 pass?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Garnos

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 183: FOR AN ACT ENTITLED, An Act to exclude students served in residential treatment facilities from the determination of the small school adjustment in the state aid to general education formula.

Was read the second time.

The question being “Shall SB 183 pass as amended?”

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Garnos

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

HB 1014: FOR AN ACT ENTITLED, An Act to define trophy and nontrophy antelope, mule deer, white-tailed deer, and elk, and establish civil damages for the unlawful taking of trophy animals.

Was read the second time.

The question being “Shall HB 1014 pass as amended?”

And the roll being called:

Yeas 33, Nays 1, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Nays:
Kloucek

Excused:
Garnos

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.

COMMEMORATION

SC 13 Introduced by: Senators Adelstein, Hansen (Tom), Hunhoff (Jean), Merchant, Novstrup (Al), Tieszen, and Turbak Berry

A LEGISLATIVE COMMEMORATION, Commending the Boys & Girls Clubs of South Dakota and honoring the 2010 Boys & Girls Club Youth of the Year Contestants Melissa Howe, representing the Boys & Girls Clubs of Three District Youth Services; Arisbet Escalante, representing the Boys & Girls Clubs of the Black Hills; Bryana Schull, representing Ellsworth Air Force Base Youth Activities Center; Kami Bailey, representing the Boys & Girls Club of Watertown; Nikol Purucker, representing the Boys & Girls Club of Brookings; and Torey Williams, representing the Boys & Girls Club of Aberdeen.

WHEREAS, the Boys & Girls Clubs of South Dakota provide a safe place for youth to learn and grow by providing programs and services that promote leadership development, health, and educational career enhancement; and

WHEREAS, each year the Boys & Girls Clubs of South Dakota host the Youth of the Year competition to allow members of the Boys & Girls Clubs in South Dakota to showcase their talents and achievements, share their hopes and dreams, and work towards a bright and positive future with the skills they have learned through their membership in their Boys & Girls Club; and

WHEREAS, it is fitting and proper that the South Dakota Legislature acknowledge the opportunities and positive influence of the Boys & Girls Clubs of South Dakota through their programs and guidance to develop much needed life skills; and

WHEREAS, it is fitting and proper that the South Dakota Legislature acknowledge the accomplishments and hard work of the 2010 Boys & Girls Club Youth of the Year contestants:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eighty-fifth Legislature of the State of South Dakota, that the Boys & Girls Clubs of South Dakota be commended for their work in providing a safe and positive place for young people to learn and grow and that Melissa Howe, Arisbet Escalante, Bryana Schull, Kami Bailey, Nikol Purucker, and Torey Williams be commended for their achievements as participants in the 2010 Boys & Girls Club Youth of the Year competition.

SIGNING OF BILLS

The President publicly read the title to

HB 1021: FOR AN ACT ENTITLED, An Act to authorize the deposit of federal special education funds into the capital outlay fund for the purchase of equipment for the purpose of special education and to declare an emergency.

And signed the same in the presence of the Senate.

Sen. Haverly moved that the Senate do now adjourn, which motion prevailed and at 4:16 p.m. the Senate adjourned.

Trudy Evenstad, Secretary