Senate Journal 3/4/2010 01:00 PM

JOURNAL OF THE SENATE

EIGHTY-FIFTH SESSION

THIRTY-SECOND DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, March 4, 2010

The Senate convened at 1:00 p.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Pastor John Fette, followed by the Pledge of Allegiance led by Senate pages Paxton Bachand and Zachary Bunn.

Roll Call: All members present except Sen. Jerstad 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 thirty-first 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.

There being no objection, the Senate proceeded to Order of Business No. 8.

MOTIONS AND RESOLUTIONS

SENATE PAGE RESOLUTION 4 Introduced by: Senators 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

A RESOLUTION, Expressing the appreciation and gratitude of the Senate of the Eighty-fifth Legislature of the State of South Dakota to Alexandra Alspach, Paxton Bachand, Sean Bogue, Zachary Bunn, Zoe Cope, Kelcy Curtis, Jocilyn Hansen, Aaron Schanzenbach, Abbie Schuring, Megan Simon, Elizabeth Volzke, Ann Wilken, Jesse Willard

WHEREAS, the above named served loyally as pages for the Senate of the Eighty-fifth Legislative Session; and

WHEREAS, the members of the Eighty-fifth Senate express their most sincere appreciation to these young people for their service to the state; and

WHEREAS, the members extend to these young people their wishes for every success in life:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Eighty-fifth Legislature of the State of South Dakota, that a personal copy of this resolution be duly certified and furnished to each page on this last day of service.

Sen. Tieszen moved that Senate Page Resolution 4 be adopted.

The question being on Sen. Tieszen's motion that Senate Page Resolution 4 be adopted.

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

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

Excused:
Howie; Jerstad

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

There being no objection, the Senate reverted to Order of Business No. 4.

COMMUNICATIONS AND PETITIONS

March 3, 2010

Mr. President and Members of the Senate:

I have the honor to inform you that on March 3, 2010, I approved Senate Bill 157, and the same has been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1224 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 HB 1136 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1164, 1177, 1187, and 1228 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 Judiciary respectfully reports that it has had under consideration HB 1110 and returns the same with the recommendation that said bill be amended as follows:

1110rc

On page 1, between lines 2 and 3 of the House Judiciary Committee engrossed bill, insert:

"Section 1. That § 22-22-7 be amended to read as follows:

22-22-7. Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person's spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the victim is at least thirteen years of age and the actor is less than ~~three~~ five years older than the ~~other person~~ victim, the actor is guilty of a Class 1 misdemeanor. ~~If an adult has a previous conviction for a felony violation of this section, any subsequent felony conviction for a violation under this section, is a Class 2 felony.~~ Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer. "

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1231 and returns the same with the recommendation that said bill be amended as follows:

1231jf

On page 7, between lines 23 and 24 of the House engrossed bill, insert:

"(8) One member of the South Dakota State Medical Association;

(9) One member of the South Dakota Nurses Association;

(10) One member of the South Dakota Pharmacists Association;".

On page 7, line 24, delete "(8)" and insert "(11)".

On page 8, line 1, delete "(9)" and insert "(12)".

On page 8, line 2, delete "(10)" and insert "(13)".

1231jg

On page 3, line 3, of the House engrossed bill, delete everything after "include" and insert "specifically identified data elements adopted by the board and contained in the 2005 version of the electronic".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1077 and returns the same with the recommendation that said bill be amended as follows:

1077rc

On page 1 of the House engrossed bill, delete lines 4 to 14, inclusive, and insert:

"Section 1. If the court finds that an applicant was denied the right to an appeal from an original conviction in violation of the Constitution of the United States or the Constitution of South Dakota, the court shall issue a new judgment and impose the same sentence if such relief is requested within a reasonable time and an adequate record of the original trial proceeding is available for review. The court shall advise the applicant of the following:

(1) The rights associated with an appeal from a criminal conviction; and

(2) The time for filing a notice of appeal from the reimposed judgment and sentence.

Nothing in this section limits an applicant's right to habeas corpus."

And that as so amended said bill do pass and be placed on the consent calendar.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1265 and returns the same with the recommendation that said bill be amended as follows:

1265ra

On page 1, line 13, of the printed bill, delete everything after "If the" and insert "court-appointed attorney is a party to a contract with the county to provide indigent counsel pursuant to subdivision 23A-40-7(3), the compensation for that attorney shall be that which the attorney would receive".

On page 1, delete lines 14 and 15.

And that as so amended said bill do pass and be placed on the consent calendar.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1161 and 1167 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 4, 7, 8, 11, 50, 56, 60, 89, 122, 132, 136, 145, 183, and 186 and finds the same correctly enrolled.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 16, 24, 26, 27, 28, 29, 31, 33, 45, 46, 47, 48, 52, 63, 118, and 133 were delivered to his Excellency, the Governor, for his approval at 10:00 a.m., March 4, 2010.

Respectfully submitted,
Bob Gray, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to return herewith SB 62 and 121 which have been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 4, 7, 8, 11, 50, 89, 122, 132, 136, and 186 which have passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Abdallah moved that the Senate do concur in House amendments to SB 54.

The question being on Sen. Abdallah's motion that the Senate do concur in House amendments to SB 54.

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); Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

Excused:
Jerstad

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

Sen. Hunhoff (Jean) moved that the Senate do concur in House amendments to SB 66.

The question being on Sen. Hunhoff (Jean)'s motion that the Senate do concur in House amendments to SB 66.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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

SCR 5: A CONCURRENT RESOLUTION, Expressing support for the public awareness of multiple sclerosis and recognizing MS Awareness Week as March 8-14, 2010.

Was read the second time.

Sen. Merchant moved that SCR 5 as found on page 543 of the Senate Journal be adopted.

The question being on Sen. Merchant's motion that SCR 5 be adopted.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and SCR 5 was adopted.

Yesterday, Sen. Knudson announced his intention to reconsider the vote by which HB 1041 lost.

Sen. Knudson moved that the Senate do now reconsider the vote by which HB 1041 lost and that HB 1041 be immediately reconsidered.

The question being on Sen. Knudson's motion to reconsider the vote by which HB 1041 lost and that HB 1041 be immediately reconsidered.

And the roll being called:

Yeas 26, Nays 7, Excused 2, Absent 0

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

Nays:
Abdallah; Hanson (Gary); Heidepriem; Howie; Kloucek; Maher; Schmidt

Excused:
Gray; Jerstad

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HB 1041 was up for reconsideration and final passage.

HB 1041: FOR AN ACT ENTITLED, An Act to revise the discount on the sales of cigarette tax stamps to distributors.

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

The question being "Shall HB 1041 pass as amended?"

And the roll being called:

Yeas 24, Nays 10, Excused 1, Absent 0

Yeas:
Adelstein; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Haverly; Hundstad; Hunhoff (Jean); Knudson; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Rhoden; Tieszen; Turbak Berry; Vehle

Nays:
Abdallah; Ahlers; Bartling; Hanson (Gary); Heidepriem; Howie; Kloucek; Maher; Peterson; Schmidt

Excused:
Jerstad

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Taxation on HB 1202 as found on page 536 of the Senate Journal; also

Local Government on HB 1053 as found on page 538 of the Senate Journal be adopted.

Which motion prevailed.

CONSIDERATION OF EXECUTIVE APPOINTMENT

The Senate proceeded to the consideration of the executive appointment of John L. Cooper of Hughes County, Pierre, South Dakota, to the Game, Fish and Parks Commission.

The question being "Does the Senate advise and consent to the executive appointment of John L. Cooper pursuant to the executive message as found on page 454 of the Senate Journal?"

And the roll being called:

Yeas 22, Nays 12, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Ahlers; Dempster; Gant; Garnos; Gillespie; Gray; Hanson (Gary); Haverly; Heidepriem; Hunhoff (Jean); Knudson; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Tieszen; Turbak Berry; Vehle

Nays:
Bartling; Bradford; Brown; Fryslie; Hansen (Tom); Howie; Hundstad; Kloucek; Maher; Peterson; Rhoden; Schmidt

Excused:
Jerstad

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

SECOND READING OF CONSENT CALENDAR ITEMS

HB 1072: FOR AN ACT ENTITLED, An Act to provide for the election of a vice chair for county commissions.

Was read the second time.

The question being "Shall HB 1072 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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 1091: FOR AN ACT ENTITLED, An Act to revise certain provisions related to municipal elections in the case of death or withdrawal of a candidate.

Was read the second time.

The question being "Shall HB 1091 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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 1109: FOR AN ACT ENTITLED, An Act to revise certain provisions related to business organizations and to provide for certain filing fees relevant thereto.

Was read the second time.

The question being "Shall HB 1109 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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 1130: FOR AN ACT ENTITLED, An Act to include the families of certain members of the armed forces who died in military service as eligible for gold star special license plates.

Was read the second time.

The question being "Shall HB 1130 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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 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 second time.

The question being "Shall HB 1172 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Excused:
Jerstad

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

Sen. Knudson moved that HB 1160, 1036, 1046, 1054, 1057, 1105, 1107, 1135, 1214, 1240, 1241, 1264, and 1270 and HJR 1004 be deferred to Monday, March 8, the 33^rd legislative day.

Which motion prevailed.

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

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to inform your honorable body that the House has failed to concur in Senate amendments to HB 1051 and no committee was appointed.

Also MR. PRESIDENT:

I have the honor to inform your honorable body that the House has concurred in Senate amendments to HB 1001, 1002, 1104, and 1118.

Respectfully,
Karen Gerdes, Chief Clerk

SIGNING OF BILLS

The President publicly read the title to

SB 4: FOR AN ACT ENTITLED, An Act to revise certain rule-making authority regarding the sale of certain alcoholic beverage container sizes to on-sale licensees.

SB 7: FOR AN ACT ENTITLED, An Act to permit certain sex offenders who are homeless or on parole to reside in certain halfway homes or homeless shelters within community safety zones.

SB 8: FOR AN ACT ENTITLED, An Act to establish the application of certain statutes relating to the sex offender registry with regard to out-of-state offenders residing in the state of South Dakota.

SB 11: FOR AN ACT ENTITLED, An Act to define solicitation of or conspiracy to commit certain crimes as registerable sex offenses.

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.

SB 56: FOR AN ACT ENTITLED, An Act to update certain citations to federal regulations regarding pipeline safety inspection.

SB 60: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the siting of energy facilities by the Public Utilities Commission.

SB 89: FOR AN ACT ENTITLED, An Act to exempt from federal regulation any firearm, firearm accessory, or ammunition manufactured and retained in South Dakota.

SB 122: FOR AN ACT ENTITLED, An Act to repeal certain procedures required when actual state revenues fall below legislatively adopted estimates.

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

SB 136: FOR AN ACT ENTITLED, An Act to allow municipalities to maintain the same number of on-sale alcoholic beverage licenses when certain on-sale alcoholic beverage licenses are not reissued.

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

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.

SB 186: FOR AN ACT ENTITLED, An Act to change the unemployment insurance wage base and contribution rates and to declare an emergency.

HB 1025: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to construct a motor pool building at South Dakota State University and to make an appropriation therefor.

HB 1026: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to construct phase II of the Electrical Engineering and Computer Science Building on the campus of South Dakota State University, to accept donations for such purpose, to acquire land incidental thereto, and to make appropriations therefor.

HB 1027: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to construct a visitor center on the grounds of McCrory Gardens on the campus of South Dakota State University, to accept donations for such purpose, to make an appropriation therefor, and to declare an emergency.

HB 1047: FOR AN ACT ENTITLED, An Act to clarify certain powers of the state as conservator of a protected person.

HB 1048: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to a previous appropriation for National Guard armory construction.

HB 1052: FOR AN ACT ENTITLED, An Act to revise the definition of full-time equivalent to exclude students employed by public postsecondary institutions.

HB 1056: FOR AN ACT ENTITLED, An Act to make an appropriation from the coordinated natural resources conservation fund to the State Conservation Commission and to declare an emergency.

HB 1061: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding organization and operation of the public entity pool for liability.

HB 1095: FOR AN ACT ENTITLED, An Act to permit local industrial development corporations to conduct bingo games and lotteries under certain conditions.

HB 1192: FOR AN ACT ENTITLED, An Act to establish an ethanol blender pump incentive grant program, to make an appropriation therefor, and to declare an emergency.

HB 1263: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the terms of wind easements and wind energy leases.

And signed the same in the presence of the Senate.

COMMEMORATION

SC 22 Introduced by: Senator Nesselhuf and Representatives Nygaard and Boomgarden

A LEGISLATIVE COMMEMORATION, Congratulating and commending Sam Miller and Tyler Gutzman of Vermillion High School for a triumphant 2008-2009 debate season and for placing tenth in policy debate at the 2009 National Forensics League National Speech and Debate Tournament.

WHEREAS, Sam Miller and Tyler Gutzman of Vermillion High School exemplified forensic excellence, superiority, and the will to win throughout the 2008-2009 debate season; and

WHEREAS, Sam Miller and Tyler Gutzman of Vermillion High School were the 2008-2009 Class A State Champions in policy debate; and

WHEREAS, Sam Miller and Tyler Gutzman of Vermillion High School qualified to the 2009 National Forensics League National Debate Tournament in policy debate; and

WHEREAS, Sam Miller and Tyler Gutzman of Vermillion High School placed tenth in policy debate at the 2009 National Forensics League National Debate Tournament, the highest any South Dakota policy debate team has placed in nine years:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eighty-fifth Legislature of the State of South Dakota, that Sam Miller and Tyler Gutzman of Vermillion High School be congratulated and commended for a triumphant 2008-2009 debate season and for placing tenth in policy debate at the 2009 National Forensics League National Speech and Debate Tournament.

Sen. Turbak Berry moved that the Senate do now adjourn, which motion prevailed and at 1:51 p.m. the Senate adjourned.

Trudy Evenstad, Secretary