JOURNAL OF THE SENATE

EIGHTY-SEVENTH SESSION

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, February 21, 2012

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

The prayer was offered by the Chaplain, Rev. Susan Carr, followed by the Pledge of Allegiance led by Senate page Walker Iversen.

Roll Call: All members present except Sens. Cutler, Hundstad, and Johnston who were 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 twenty-third 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.

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

Pages _ Shaunday Antoine, Brooke Clarke, Rachel Day, Peter Delgado, Jr., Aspen Ducheneaux, George Walker Iversen, Mikayla Nepper, Nick Reagan, Allison Stahl

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

The President introduced United States Congresswoman Kristi Noem who addressed the body.

COMMUNICATIONS AND PETITIONS

February 8, 2012

The Honorable Matt Michels
President of the Senate
State Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 41-2 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed William F. Cerney, Gregory County, Burke, South Dakota, to the Game, Fish and Parks Commission.

This appointment is effective immediately, and shall continue until January 10, 2016

Sincerely,
Dennis Daugaard
Governor

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

January 27, 2012

The Honorable Matt Michels
President of the Senate
State Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

Pursuant to the provisions of Chapter 41-2 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Duane K. Sather, Minnehaha County, Sioux Falls, South Dakota, to the Game, Fish and Parks Commission.

This appointment is effective immediately, and shall continue until January 10, 2016

Sincerely,
Dennis Daugaard
Governor

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

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Commerce and Energy respectfully reports that it has had under consideration HB 1097, 1125, and 1229 and returns the same with the recommendation that said bills do pass and be placed on the consent calendar.

Respectfully submitted,
Eldon Nygaard, Vice Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1039 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 1095, 1114, 1160, 1194, and 1245 and returns the same with the recommendation that said bills do pass and be placed on the consent calendar.

Respectfully submitted,
Craig Tieszen, Chair

Also MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration HJR 1006 and HB 1017, 1051, 1164, and 1199 and returns the same with the recommendation that said bills and resolution do pass.

Also MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1157 and 1158 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Corey Brown, Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1117 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 1230 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 8, of the House engrossed bill, overstrike "a week for two successive weeks".

On page 1, line 9, delete "directly impacted".

On page 1, line 10, delete everything after "located" .

On page 1, line 11, delete everything before "." .

On page 1, line 13, after "." insert "If the official newspaper is a weekly newspaper, then the notice shall also be published at least once in a daily newspaper. The daily newspaper selected by the chief engineer shall be located as near as possible to the location where the water will be diverted or used. Public notice of the application shall also be posted on the department's website until final action is taken on the application."

On page 1, line 13, overstrike "second".

On page 2, line 1, delete everything after "." .

On page 2, delete line 2.

On page 2, line 3, delete everything before "No" .

On page 3, after line 16, insert:

"Section 2. That § 46-2A-23 be amended to read as follows:

46-2A-23. Following the issuance of a recommendation to approve an application pursuant to § 46-2A-2, the chief engineer may publish, at the expense of the applicant, a notice to determine whether any person opposes the application or recommendation of the chief engineer. The notice shall be published as provided for in § 46-2A-4, and the notice shall contain the information provided for in subdivisions 46-2A-4(1), (2), (3), (5), (6), and (10). The notice is not required to refer to a board meeting or hearing date. In addition, the notice shall include a statement that if the applicant intends to contest the recommendation, the applicant shall file a petition with the chief engineer, and any interested person who intends to oppose or support the application or recommendation shall file a petition with the chief engineer and the applicant. Any petition shall be filed within ten days of the ~~second~~ published notice.

If no petition to contest the recommendation or to oppose an application is timely filed, the chief engineer, following receipt of proof of publication, shall act on the application consistent with the chief engineer's recommendation as provided by rules promulgated by the Water Management Board pursuant to chapter 1-26 delegating authority to the chief engineer to issue uncontested permits pursuant to §§ 46-1-16 and 46-2-3.1, without hearing by the board.

If a petition to contest the recommendation or to oppose the application is timely filed, the chief engineer shall provide notice of a board hearing pursuant to § 1-26-17. The notice shall also include a statement that the recommendation of the chief engineer is not final or binding upon the board and is subject to the decision of the board based on evidence and record of the public hearing. A statement shall also be included in the notice that the applicant or any interested person who has filed a petition to oppose or support an application, may file a written notice with the chief engineer requesting postponement of the original hearing date. The written notice requesting postponement shall be filed within twenty days of the date of the notice scheduling the board hearing, but not less than ten days before the date the application is scheduled for hearing. Upon timely receipt of a written notice, the chief engineer shall cancel the original hearing and reschedule the hearing not less than twenty days after the original hearing date. Notice of hearing shall be provided by personal service or by first class mail to the applicant and parties of record. "

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1188 which was deferred to the 41st Legislative Day.

Respectfully submitted,
Shantel Krebs, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 5, 11, 19, 39, 41, 56, 57, 69, 107, 115, and 168 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 72 which has been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HCR 1010 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 5, 11, 19, 39, 41, 56, 57, 69, 107, 115, and 168 which have passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Olson moved that HB 1018, 1066, 1131, 1046, and 1064 be deferred to Wednesday, February 22, the 25^th legislative day.

Which motion prevailed.

SCR 6: A CONCURRENT RESOLUTION, Urging the government of Turkey to uphold and safeguard religious and human rights and to respect the property rights and human rights of the Ecumenical Patriarchate.

Was read the second time.

Sen. Heineman moved that SCR 6 as found on page 465 of the Senate Journal be adopted.

The question being on Sen. Heineman's motion that SCR 6 be adopted.

And the roll being called:

Yeas 31, Nays 0, Excused 4, Absent 0

Yeas:
Adelstein; Begalka; Bradford; Brown; Buhl; Frerichs; Fryslie; Hansen (Tom); Haverly; Heineman; Holien; Hunhoff (Jean); Juhnke; Kraus; Krebs; Lederman; Maher; Nelson (Tom); Novstrup (Al); Nygaard; Olson (Russell); Peters; Putnam; Rampelberg; Rave; Rhoden; Schlekeway; Sutton; Tidemann; Tieszen; Vehle

Excused:
Cutler; Gray; Hundstad; Johnston

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and SCR 6 was adopted.

HCR 1010: A CONCURRENT RESOLUTION, Urging Congress to adopt a proposed constitutional amendment limiting federal legislation to a single subject.

Was read the first time, the President waived the referral to committee, and placed HCR 1010 on the calendar of Wednesday, February 22, the 25^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

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

Agriculture and Natural Resources on HB 1083 as found on page 462 of the Senate Journal; also

Commerce and Energy on HB 1227 as found on page 463 of the Senate Journal be adopted.

Which motion prevailed.

SECOND READING OF CONSENT CALENDAR ITEMS

Sen. Frerichs requested that HB 1121 be removed from the Consent Calendar.

Sen. Olson requested that HB 1059 be removed from the Consent Calendar.

HB 1128: FOR AN ACT ENTITLED, An Act to require the Board of Education to conduct public hearings before adopting certain standards.

Was read the second time.

The question being "Shall HB 1128 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Adelstein; Begalka; Bradford; Brown; Buhl; Frerichs; Fryslie; Gray; Hansen (Tom); Haverly; Heineman; Holien; Hunhoff (Jean); Juhnke; Kraus; Krebs; Lederman; Maher; Nelson (Tom); Novstrup (Al); Nygaard; Olson (Russell); Peters; Putnam; Rampelberg; Rave; Rhoden; Schlekeway; Sutton; Tidemann; Tieszen; Vehle

Excused:
Cutler; Hundstad; Johnston

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 1153: FOR AN ACT ENTITLED, An Act to revise and clarify certain provisions relating to the revocation of fur dealer licenses.

Was read the second time.

The question being "Shall HB 1153 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1047: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to military law.

Was read the second time.

The question being "Shall HB 1047 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1063: FOR AN ACT ENTITLED, An Act to repeal certain statutes related to the testimony of sex offense victims and to evidence of a victim's prior sexual conduct and to establish the rationale and effect of the repeal.

Was read the second time.

The question being "Shall HB 1063 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1065: FOR AN ACT ENTITLED, An Act to repeal the requirement that the Unified Judicial System set forth a schedule for all fees paid directly to court reporters in its annual consolidated budget.

Was read the second time.

The question being "Shall HB 1065 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1079: FOR AN ACT ENTITLED, An Act to revise certain publication date citations for references to the International Building Code.

Was read the second time.

The question being "Shall HB 1079 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1088: FOR AN ACT ENTITLED, An Act to revise certain requirements for charging and collecting certain fees for confining certain people in the county jail.

Was read the second time.

The question being "Shall HB 1088 pass as amended?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1202: FOR AN ACT ENTITLED, An Act to repeal certain provisions regarding reckless and unsafe driving.

Was read the second time.

The question being "Shall HB 1202 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1263: FOR AN ACT ENTITLED, An Act to provide for mandatory HIV testing for any person convicted of prostitution or solicitation of prostitution and to provide for appropriate utilization of the test results.

Was read the second time.

The question being "Shall HB 1263 pass as amended?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Yeas:
Adelstein; Begalka; Bradford; Brown; Buhl; Frerichs; Fryslie; Gray; Hansen (Tom); Haverly; Heineman; Holien; Hunhoff (Jean); Juhnke; Kraus; Krebs; Maher; Nelson (Tom); Novstrup (Al); Olson (Russell); Peters; Putnam; Rampelberg; Rave; Rhoden; Schlekeway; Sutton; Tidemann; Tieszen; Vehle

Excused:
Cutler; Hundstad; Johnston; Lederman; Nygaard

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 1195: FOR AN ACT ENTITLED, An Act to authorize the collection of fees for certain educational programming and services, and to declare an emergency.

Was read the second time.

The question being "Shall HB 1195 pass as amended?"

And the roll being called:

Yeas 25, Nays 6, Excused 4, Absent 0

Yeas:
Adelstein; Begalka; Bradford; Brown; Buhl; Frerichs; Fryslie; Gray; Heineman; Hunhoff (Jean); Juhnke; Kraus; Krebs; Maher; Nelson (Tom); Nygaard; Olson (Russell); Putnam; Rampelberg; Rave; Schlekeway; Sutton; Tidemann; Tieszen; Vehle

Nays:
Hansen (Tom); Haverly; Holien; Novstrup (Al); Peters; Rhoden

Excused:
Cutler; Hundstad; Johnston; Lederman

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

HB 1050: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding National Guard discipline and courts-martial.

Was read the second time.

The question being "Shall HB 1050 pass?"

And the roll being called:

Yeas 31, Nays 1, Excused 3, Absent 0

Yeas:
Adelstein; Begalka; Bradford; Brown; Buhl; Frerichs; Fryslie; Gray; Hansen (Tom); Haverly; Heineman; Holien; Hunhoff (Jean); Juhnke; Kraus; Krebs; Lederman; Nelson (Tom); Novstrup (Al); Nygaard; Olson (Russell); Peters; Putnam; Rampelberg; Rave; Rhoden; Schlekeway; Sutton; Tidemann; Tieszen; Vehle

Nays:
Maher

Excused:
Cutler; Hundstad; Johnston

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 1212: FOR AN ACT ENTITLED, An Act to revise certain terms regarding tort liability.

Was read the second time.

The question being "Shall HB 1212 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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 1192: FOR AN ACT ENTITLED, An Act to amend certain limited liability company language.

Was read the second time.

The question being "Shall HB 1192 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Excused:
Cutler; Hundstad; Johnston

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

SIGNING OF BILLS

The President publicly read the title to

SB 5: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the distribution of state publications.

SB 11: FOR AN ACT ENTITLED, An Act to authorize the Governor's Office of Economic Development to create and administer a working capital loan program.

SB 19: FOR AN ACT ENTITLED, An Act to revise the rule-making authority of the Commission on Gaming to allow the commission to authorize the executive secretary of the Commission on Gaming to take certain actions on gaming licensees.

SB 39: FOR AN ACT ENTITLED, An Act to expand the definition of victim for the purposes of certain written victim impact statements.

SB 41: FOR AN ACT ENTITLED, An Act to authorize retailers to choose whether to submit pseudoephedrine purchase records electronically or in writing.

SB 56: FOR AN ACT ENTITLED, An Act to revise and repeal certain provisions relating to the South Dakota Housing Development Authority.

SB 57: FOR AN ACT ENTITLED, An Act to revise and repeal certain administrative rules relating to the South Dakota Housing Development Authority.

SB 69: FOR AN ACT ENTITLED, An Act to repeal the sunset provision on certain statutes relating to nursing homes on Indian reservations.

SB 107: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding personalized motor vehicle license plates.

SB 115: FOR AN ACT ENTITLED, An Act to implement the regulation of insurance coverage for portable electronic devices.

SB 168: FOR AN ACT ENTITLED, An Act to revise the terms and expiration dates of appointees to certain boards and commissions.

HB 1005: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the excuse from attendance of children receiving alternative instruction.

HB 1006: FOR AN ACT ENTITLED, An Act to revise certain outdated and obsolete provisions regarding the Department of Education.

HB 1007: FOR AN ACT ENTITLED, An Act to repeal certain outdated and obsolete statutes regarding the Department of Education.

HB 1020: FOR AN ACT ENTITLED, An Act to authorize the Department of Game, Fish and Parks to sell the Marcotte Tract located within the Marcotte Game Production Area in Meade County to the City of Sturgis.

HB 1021: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the rights of victims of crime.

HB 1029: FOR AN ACT ENTITLED, An Act to authorize the publication of the names of certain delinquent taxpayers.

HB 1033: FOR AN ACT ENTITLED, An Act to clarify certain requirements relating to insurance examinations.

HB 1034: FOR AN ACT ENTITLED, An Act to revise the circumstances under which alterations may be made to certain insurance applications.

HB 1035: FOR AN ACT ENTITLED, An Act to allow the disclosure of the status of certain insurance investigations and examinations.

HB 1036: FOR AN ACT ENTITLED, An Act to establish and revise certain provisions and penalties related to the regulation of grain warehouses, grain buyers, and warehouse receipts.

HB 1037: FOR AN ACT ENTITLED, An Act to revise the purpose of the agriculture mediation program.

HB 1038: FOR AN ACT ENTITLED, An Act to increase the penalty for leaving the brand inspection area without necessary inspection and authorization.

HB 1040: FOR AN ACT ENTITLED, An Act to make an appropriation for the payment of extraordinary litigation expenses and to declare an emergency.

HB 1041: FOR AN ACT ENTITLED, An Act to authorize a carryover of the fiscal year 2012 state aid to special education appropriation to fiscal year 2013 for the purpose of maintaining federal maintenance of effort levels.

HB 1049: FOR AN ACT ENTITLED, An Act to add certain definitions regarding the Department of the Military.

HB 1055: FOR AN ACT ENTITLED, An Act to allow for joint physical custody orders after a court awards joint legal custody if in the best interest of the child.

HB 1060: FOR AN ACT ENTITLED, An Act to permit a probationer who is a registered sex offender to reside in an assigned halfway house or supervised living center within a community safety zone.

HB 1061: FOR AN ACT ENTITLED, An Act to amend certain provisions related to interpreter services in the court system.

HB 1062: FOR AN ACT ENTITLED, An Act to clarify the supporting documentation necessary for a request to implement the standard visitation guidelines.

HB 1070: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the certificate of health requirement for the importation of animals.

HB 1073: FOR AN ACT ENTITLED, An Act to prohibit certain indemnity provisions in motor carrier transportation contracts.

HB 1115: FOR AN ACT ENTITLED, An Act to exempt certain contracts from the competitive bidding requirements for water user districts.

HB 1119: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning mechanical pull-tab devices.

HB 1124: FOR AN ACT ENTITLED, An Act to permit a school district, at the discretion of the school district, to pay the fees charged for any criminal background investigation that is required by law for a prospective employee.

HB 1147: FOR AN ACT ENTITLED, An Act to remove the individual liability of a school board member who authorizes the making of a void contract, check or registered warrant.

HB 1177: FOR AN ACT ENTITLED, An Act to establish provisions to exempt breastfeeding mothers or new parents from jury duty.

HB 1183: FOR AN ACT ENTITLED, An Act to limit copayment or coinsurance amounts for physical and occupational therapy services.

HB 1203: FOR AN ACT ENTITLED, An Act to revise auditing requirements for water development districts.

HB 1223: FOR AN ACT ENTITLED, An Act to exempt from sales tax certain handling fees paid by religious organizations to approved relief agencies for the distribution of food which is provided for the assistance or relief of the poor, distressed, or underprivileged through food giveaway programs.

HB 1232: FOR AN ACT ENTITLED, An Act to repeal the South Dakota Commission on Health Care.

And signed the same in the presence of the Senate.

Sen. Putnam moved that the Senate do now adjourn, which motion prevailed and at 3:34 p.m. the Senate adjourned.

Fee Jacobsen, Secretary