Senate Journal 2/16/2010 02:00 PM

JOURNAL OF THE SENATE

EIGHTY-FIFTH SESSION

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, February 16, 2010

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

The prayer was offered by the Chaplain, Father Kevin Doyle, followed by the Pledge of Allegiance led by Senate page Daniel Vellek.

Roll Call: All members present except Sen. Gillespie who was excused.

APPROVAL OF THE JOURNAL

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the twentieth 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,

Which motion prevailed.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1190 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 HB 1117 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Cooper Garnos, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 185 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Craig Tieszen, Vice-Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1120 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1096 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 Agriculture and Natural Resources respectfully reports that it has had under consideration SB 178 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Larry Rhoden, Chair

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 168 and returns the same with the recommendation that said bill do pass and be placed on the consent calendar.

Also MR. PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 188 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 § 35-4-121 be amended to read as follows:

35-4-121. Any person, corporation, or business entity that is issued a new retail license under subdivision 35-4-2(3) in a municipality of the first class after June 30, 2008, and derives more than fifty percent of the licensee's annual gross receipts from the sale of food, prepared food, and food ingredients at the location where the license is held, shall ~~sell~~ display its alcoholic beverages, other than malt beverages, in an area which is separated by a physical barrier from the rest of the establishment. For the purposes of this section, a physical barrier includes a wall or fence erected for the sole purpose of separating the area in which the alcoholic beverages are ~~sold~~ displayed from the rest of the establishment. "

On page 1, line 1, of the printed bill, delete everything after "to" and insert "revise certain provisions relating to the sale and display of alcoholic beverages in establishments that sell food."

On page 1, delete lines 2 to 5, inclusive.

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 116 and 173 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Russell Olson, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 34 and 36 and finds the same correctly enrolled.

Respectfully submitted,

Bob Gray, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to return herewith SB 34 and 36 which have passed the House without change.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1172 and 1260 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

HCR 1007: A CONCURRENT RESOLUTION, Urging the Bureau of Indian Education and other federal and state agencies to provide for the design and implementation of appropriate measures of adequate yearly progress for Native American students under the No Child Left Behind Act.

Was read the second time.

Sen. Bradford moved that the Senate do concur in HCR 1007 as found on page 259 of the House Journal.

The question being on Sen. Bradford's motion that the Senate do concur in HCR 1007.

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Abdallah; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; 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:
Adelstein; Gillespie

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1007 was concurred in.

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

Was read the second time.

Sen. Brown moved that the Senate do concur in HCR 1008 as found on page 325 of the House Journal.

The question being on Sen. Brown's motion that the Senate do concur in HCR 1008.

And the roll being called:

Yeas 24, Nays 8, Excused 3, Absent 0

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

Nays:
Ahlers; Bartling; Hanson (Gary); Hundstad; Jerstad; Merchant; Miles; Turbak Berry

Excused:
Adelstein; Gillespie; Kloucek

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1008 was concurred in.

CONSIDERATION OF REPORTS OF COMMITTEES

The question now being on Sen. Jerstad's pending motion that the words "without recommendation" be stricken from the report of the Committee on Transportation on SB 70 as found on page 289 of the Senate Journal, that the words "do pass" be inserted, and that SB 70 be immediately considered.

And the roll being called:

Yeas 18, Nays 16, Excused 1, Absent 0

Yeas:
Ahlers; Bartling; Bradford; Fryslie; Garnos; Hanson (Gary); Haverly; Heidepriem; Hundstad; Jerstad; Kloucek; Maher; Merchant; Miles; Nesselhuf; Peterson; Tieszen; Turbak Berry

Nays:
Abdallah; Adelstein; Brown; Dempster; Gant; Gray; Hansen (Tom); Howie; Hunhoff (Jean); Knudson; Nelson; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Vehle

Excused:
Gillespie

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried, and SB 70 was up for immediate consideration.

SB 70: FOR AN ACT ENTITLED, An Act to provide certain restrictions regarding the passing of a bicycle.

Was read the second time.

Sen. Jerstad moved that SB 70 be amended as follows:

On page 1, after line 10 of the printed bill, insert:

"Section 2. That § 32-20B-5 be amended to read as follows:

32-20B-5. Any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as practicable to the right-hand curb or edge of the roadway. However, a person operating a bicycle may move from the right-hand curb or edge of the roadway to overtake and pass another bicycle or vehicle proceeding in the same direction, to prepare for a left turn at an intersection or into a private road or roadway or to avoid conditions including~~, but not limited to,~~ fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes that make it unsafe to continue along the right-hand curb or edge. For

purposes of this section, a "substandard width lane" is a lane that is too narrow for a bicycle and vehicle to travel safely side by side within the lane. Any person riding a bicycle shall use reflective material on the person's bicycle and clothing. A violation of this section is a Class 2 misdemeanor. "

Sen. Knudson requested that Joint Rule 5-17 be invoked on SB 70.

Which request was supported and SB 70 with Sen. Jerstad's pending motion to amend was deferred until Thursday, February 18, the 23^rd legislative day.

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

Health and Human Services on SB 69 as found on page 318 of the Senate Journal; also

Local Government on SB 101 as found on page 316 of the Senate Journal; also

State Affairs on SB 137 as found on page 319 of the Senate Journal; also

Local Government on SB 155 as found on page 317 of the Senate Journal be adopted.

Which motion prevailed.

The Senate proceeded to the consideration of the executive reappointment of Dick Werner of Beadle County, Huron, South Dakota, to the South Dakota Lottery Commission.

The question being "Does the Senate advise and consent to the executive reappointment of Dick Werner pursuant to the executive message as found on page 128 of the Senate Journal?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; 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:
Gillespie

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 1172: FOR AN ACT ENTITLED, An Act to repeal certain provisions requiring the approval of the planning commission for the construction of utilities and public facilities.

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

HB 1260: FOR AN ACT ENTITLED, An Act to revise the definition of federal law enforcement officer to include certain United States Forest Service personnel.

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

SECOND READING OF CONSENT CALENDAR ITEMS

SB 81: FOR AN ACT ENTITLED, An Act to exempt open-loop prepaid cards from unclaimed property provisions.

Was read the second time.

The question being "Shall SB 81 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 1058: FOR AN ACT ENTITLED, An Act to restructure the South Dakota Weed and Pest Control Commission.

Was read the second time.

The question being "Shall HB 1058 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 1101: FOR AN ACT ENTITLED, An Act to provide for restructuring the membership of the Corn Utilization Council.

Was read the second time.

The question being "Shall HB 1101 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 1005: FOR AN ACT ENTITLED, An Act to make form and style revisions to certain statutes related to the Bureau of Personnel.

Was read the second time.

The question being "Shall HB 1005 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 1006: FOR AN ACT ENTITLED, An Act to repeal, update, and make form and style revisions to certain statutes related to the Department of Transportation.

Was read the second time.

The question being "Shall HB 1006 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 2 be deferred to Wednesday, February 17, the 22^nd legislative day.

Which motion prevailed.

Sen. Knudson moved that SB 130 be deferred to Thursday, February 18, the 23^rd legislative day.

Which motion prevailed.

SB 76: FOR AN ACT ENTITLED, An Act to revise the composition of the State Veterans' Commission.

Was read the second time.

The question being "Shall SB 76 pass as amended?"

And the roll being called:

Yeas 33, Nays 1, Excused 1, Absent 0

Nays:
Tieszen

Excused:
Gillespie

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 96: FOR AN ACT ENTITLED, An Act to provide for the continuation of the waiver of the collaborative agreement requirement for certified nurse midwives providing out-of-hospital birth services.

Was read the second time.

The question being "Shall SB 96 pass as amended?"

And the roll being called:

Yeas 23, Nays 11, Excused 1, Absent 0

Yeas:
Adelstein; Ahlers; Bradford; Dempster; Fryslie; Garnos; Gray; Hanson (Gary); Heidepriem; Howie; Hundstad; Jerstad; Kloucek; Maher; Merchant; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Tieszen; Turbak Berry

Nays:
Abdallah; Bartling; Brown; Gant; Hansen (Tom); Haverly; Hunhoff (Jean); Knudson; Miles; Peterson; Vehle

Excused:
Gillespie

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 152: FOR AN ACT ENTITLED, An Act to provide procedures by which adopted persons may obtain their original birth certificates.

Was read the second time.

The question being "Shall SB 152 pass as amended?"

And the roll being called:

Yeas 12, Nays 22, Excused 1, Absent 0

Yeas:
Adelstein; Ahlers; Bradford; Dempster; Hanson (Gary); Heidepriem; Hundstad; Jerstad; Kloucek; Merchant; Nelson; Nesselhuf

Nays:
Abdallah; Bartling; Brown; Fryslie; Gant; Garnos; Gray; Hansen (Tom); Haverly; Howie; Hunhoff (Jean); Knudson; Maher; Miles; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Gillespie

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

Sen. Adelstein announced his intention to reconsider the vote by which SB 152 lost.

Which motion prevailed.

SB 172: FOR AN ACT ENTITLED, An Act to revise the definition for environmental upgrades used to provide a property tax exemption for coal-fired power plants.

Was read the second time.

Sen. Knudson requested a fiscal note on SB 172.

Which request was supported.

SB 12: FOR AN ACT ENTITLED, An Act to provide for a tiered sex offender registry and to establish certain criteria for eligibility to petition for removal or reassignment.

Was read the second time.

The question being "Shall SB 12 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 50: FOR AN ACT ENTITLED, An Act to authorize allocation and reallocation of volume, issuance authority, and other benefits in order to facilitate the issuance of bonds and compliance with certain federal requirements and to declare an emergency.

Was read the second time.

The question being "Shall SB 50 pass?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; 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; Gillespie

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.

SB 103: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to trusts.

Was read the second time.

The question being "Shall SB 103 pass as amended?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Excused:
Abdallah; Gillespie

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 108: FOR AN ACT ENTITLED, An Act to prohibit dental insurers from setting fees for noncovered services.

Was read the second time.

The question being "Shall SB 108 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Gillespie

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 132: FOR AN ACT ENTITLED, An Act to permit the utilization of certain DNA samples to determine parentage under certain conditions.

Was read the second time.

The question being "Shall SB 132 pass as amended?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; 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:
Gillespie; Gray

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 140: FOR AN ACT ENTITLED, An Act to reorganize the Department of Tourism and State Development.

Was read the second time.

Sen. Hunhoff (Jean) requested a fiscal note on SB 140.

Which request was supported.

SB 145: FOR AN ACT ENTITLED, An Act to revise certain qualifications for the South Dakota opportunity scholarship program.

Was read the second time.

The question being "Shall SB 145 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Brown; Dempster; Fryslie; Gant; Garnos; 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:
Bradford; Gillespie; Gray

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 191: FOR AN ACT ENTITLED, An Act to establish the South Dakota Early Learning Council, and to establish community planning processes and eligibility criteria for entities seeking state funding to provide voluntary prekindergarten programs to children from low-income families.

Was read the second time.

The question being "Shall SB 191 pass as amended?"

And the roll being called:

Yeas 19, Nays 14, Excused 2, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Dempster; Garnos; Hanson (Gary); Heidepriem; Hundstad; Jerstad; Knudson; Merchant; Nelson; Nesselhuf; Peterson; Tieszen; Turbak Berry; Vehle

Nays:
Brown; Fryslie; Gant; Hansen (Tom); Haverly; Howie; Hunhoff (Jean); Kloucek; Maher; Miles; Novstrup (Al); Olson (Russell); Rhoden; Schmidt

Excused:
Gillespie; Gray

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.

Sen. Knudson moved that SB 192 and HB 1034, 1045, 1094, and 1108 be deferred to Wednesday, February 17, the 22^nd legislative day.

Which motion prevailed.

There being no objection, the Senate reverted to Order of Business No. 7.

MESSAGE FROM THE HOUSE

MR. PRESIDENT:

I have the honor to inform your honorable body that the House has failed to concur in Senate amendments to HB 1014 and has appointed Reps. Russell, Cronin, and Sorenson as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses.

Respectfully,
Karen Gerdes, Chief Clerk

The President announced as such committee Sens. Rhoden, Vehle, and Peterson.

SC 14 Introduced by: Senators Kloucek, Ahlers, Bartling, Brown, Fryslie, Garnos, Howie, Hundstad, Hunhoff (Jean), Maher, Merchant, Olson (Russell), Rhoden, Schmidt, and Vehle and Representatives Putnam, Bolin, Cutler, Deadrick, Faehn, Fargen, Feickert, Frerichs, Gosch, Greenfield, Hamiel, Hoffman, Hunhoff (Bernie), Kirschman, Kopp, Lange, Lederman, Lucas, McLaughlin, Moser, Nygaard, Rounds, Sorenson, Street, Turbiville, and Vanderlinde

A LEGISLATIVE COMMEMORATION, Honoring and congratulating the members of the 2009 Corsica VFW Teener youth baseball team: Kris Menning, Adam Fink, Aaron Groeneweg, Kiefer Johnson, Luke Bamberg, Colin Wieczorek, Gunner Baan Hofman, Ryan Hongslo, Eric Vanden Hoek, Harlan Big Crow, and Kyle Beltman with bat boy Gavin Zomer and Coaches Bob Bamberg and Dave Holstein on their first-ever State B Baseball Championship Title.

WHEREAS, the 2009 Corsica VFW Teener youth baseball team bested teams from Mount Vernon, Leola-Frederick, and White at Lars Anderson Field in Irene at the South Dakota State B VFW Teener Baseball Championship Tournament held August 7-9, 2009; and

WHEREAS, the Corsica VFW Teener youth baseball program has been in existence for four years during which remarkable talent and coaching have been demonstrated; and

WHEREAS, the Corsica Teeners and Coaches Bamberg and Holstein made it their goal to win the State B VFW Teener Championship this year; and

WHEREAS, with hard work, determination, emphasis on fundamental skills, and good coaching the Corsica VFW Teener youth baseball team realized their dream:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eighty-fifth Legislature of the State of South Dakota, that the Corsica VFW Teener youth baseball team and Coaches Bamberg and Holstein be congratulated on their outstanding season culminating in the 2009 State B VFW Teener Baseball Championship.

SIGNING OF BILLS

The President publicly read the title to

SB 34: FOR AN ACT ENTITLED, An Act to provide for the staggered registration of intrastate and interstate commercial motor vehicles.

SB 36: FOR AN ACT ENTITLED, An Act to provide for the denial of certain motor carrier registrations.

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.

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

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

And signed the same in the presence of the Senate.

Sen. Kloucek moved that the Senate do now adjourn, which motion prevailed and at 4:49 p.m. the Senate adjourned.

Trudy Evenstad, Secretary