The prayer was offered by the Chaplain, Fr. Ron Garry, followed by the Pledge of
Allegiance led by Senate page Alexis McCarvel.
Roll Call: All members present, except Sen. Buhl O'Donnell who was excused.
The Committee on Legislative Procedure respectfully reports that the Secretary of the
Senate has had under consideration the Senate Journal of the fifth day.
All errors, typographical or otherwise, are duly marked in the temporary journal for
correction.
And we hereby move the adoption of the report.
The Committee on Transportation respectfully reports that it has had under consideration
SB 35 and returns the same with the recommendation that said bill do pass and be placed on the
consent calendar.
The Committee on Local Government respectfully reports that it has had under
consideration SB 2 and returns the same with the recommendation that said bill be amended as
follows:
The Committee on State Affairs respectfully reports that it has had under consideration SB
1 and returns the same with the recommendation that said bill do pass.
The Committee on State Affairs respectfully reports that it has had under consideration SB
32 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 State Affairs respectfully reports that it has had under consideration SB
50 and returns the same with the recommendation that said bill be amended as follows:
The Committee on Taxation respectfully reports that it has had under consideration SB 52
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 Taxation respectfully reports that it has had under consideration SB 53
and returns the same with the recommendation that said bill be amended as follows:
The Committee on Health and Human Services respectfully reports that it has had under
consideration SB 29 and returns the same with the recommendation that said bill do pass.
I have the honor to transmit herewith HB 1021 and 1022 which have passed the House and
your favorable consideration is respectfully requested.
Sen. Brown moved that the reports of the Standing Committees on
Agriculture and Natural Resources on SB 23 as found on page 56 of the Senate
Journal; also
Commerce and Energy on SB 42 as found on page 56 of the Senate Journal be adopted.
Which motion prevailed.
SB 56 Introduced by: Senators Olson, Curd, Greenfield (Brock), Jensen (Phil), Monroe,
Peterson (Jim), Rampelberg, and Shorma and Representatives Verchio, Brunner, Campbell,
Craig, Greenfield (Lana), Klumb, Marty, May, Russell, and Werner
FOR AN ACT ENTITLED, An Act to require legislative approval of all land acquisitions
by the Department of Game, Fish and Parks.
Was read the first time and referred to the Committee on State Affairs.
HB 1021: FOR AN ACT ENTITLED, An Act to allow child advocacy centers and tribal
agencies that provide child placement services to obtain results from a check of the central
registry for abuse and neglect.
Was read the first time and referred to the Committee on Judiciary.
HB 1022: FOR AN ACT ENTITLED, An Act to revise certain provisions related to the
use of another planned permanent living arrangement as a permanency plan for certain children.
Was read the first time and referred to the Committee on Judiciary.
The question being "Does the Senate advise and consent to the executive appointment of
Norbert Sebade pursuant to the executive message as found on page 31 of the Senate Journal?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar
(Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil);
Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim);
Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle;
White
Excused:
Buhl O'Donnell
So the question having received an affirmative vote of a majority of the members-elect, the
President declared the appointment confirmed.
The Senate proceeded to the consideration of the executive reappointment of
Theodore H. Hustead of Pennington County, Wall, South Dakota to the Board of Economic
Development.
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar
(Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil);
Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim);
Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle;
White
Excused:
Buhl O'Donnell
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
Pat L. Prostrollo of Lake County, Madison, South Dakota to the Board of Economic
Development.
The question being "Does the Senate advise and consent to the executive reappointment
of Pat L. Prostrollo pursuant to the executive message as found on page 32 of the Senate
Journal?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar
(Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil);
Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim);
Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle;
White
Excused:
Buhl O'Donnell
So the question having received an affirmative vote of a majority of the members-elect, the
President declared the reappointment confirmed.
The question being "Does the Senate advise and consent to the executive reappointment
of Donald L. Kettering pursuant to the executive message as found on page 32 of the Senate
Journal?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar
(Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil);
Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim);
Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle;
White
Excused:
Buhl O'Donnell
So the question having received an affirmative vote of a majority of the members-elect, the
President declared the reappointment confirmed.
SB 19: FOR AN ACT ENTITLED, An Act to revise certain mandatory reporting
requirements for elder and disabled adult abuse and neglect.
Was read the second time.
The question being "Shall SB 19 pass?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar
(Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil);
Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim);
Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle;
White
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 55: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the
HOPE probation program.
Was read the second time.
The question being "Shall SB 55 pass?"
And the roll being called:
Yeas 30, Nays 4, Excused 1, Absent 0
Yeas:
Bradford; Brown; Cammack; Curd; Ewing; Fiegen; Frerichs; Haggar (Jenna); Haverly;
Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Monroe; Novstrup (David); Olson;
Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton;
Tidemann; Tieszen; Van Gerpen; Vehle; White
Nays:
Greenfield (Brock); Jensen (Phil); Omdahl; Otten (Ernie)
Excused:
Buhl O'Donnell
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. Novstrup (David) moved that the Senate do now adjourn, which motion prevailed and
at 2:32 p.m. the Senate adjourned.
I suspect there is an expectation when I present my annual message that it will fall along
predictable lines and topics. Admittedly, after 13 years of presenting these messages to you in
an oral and written manner, one might think there are no new issues to discuss. Yet when I
reviewed the first message I delivered to you in 2003, there was not one subject I then addressed
which will be covered in today's message. Clearly, times change and the South Dakota Unified
Judicial System changes with them to provide necessary judicial services to the citizens of South
Dakota. As Vince Lombardi once noted, "perfection is not attainable, but if we chase perfection
we can catch excellence."
In 1972, then Chief Justice of the United States, Warren Burger, gave a speech to the
American Bar Association. In it he mused that if the legendary fictional figure Rip Van Winkle
woke from his 20-year-sleep and wandered into a courtroom, the only changes he would notice
were that the ties had gotten wider and the air conditioning worked better. Times do change.
Sometimes they change a lot. There have been more changes in the Unified Judicial System in
the past twelve months than in any one-year period since I became the Chief Justice in 2001.
Major problems are rarely identified, addressed, and overcome within the span of a year. A
long-term commitment is required. These programs do not result in a "one and done." Reforms
are often achieved by continuous improvement.
The front of the National Archives in Washington D.C. magnificently proclaims, "The Past
is Prologue." When asked by a United States Senator what that meant, a cab driver is reported
to have said, "You ain't seen nothing yet."
So what does all of this mean? Obviously judges come and go. Of all the justices and
judges who were in the UJS when I became a judge in 1986, only one remains. Yet the system
goes on. It is a better system than when it began in 1975 due to the hard work and efforts of all
those who held judicial positions during those intervening years. They set a fine example that
the present and future holders of South Dakota's judicial offices must strive to build upon.
I want to recognize the efforts of all employees of the UJS - both past and present. At one
point, Andrew Carnegie, the 19th century industrialist, was the richest and arguably the most
powerful man in the world. He later gave away most of his fortune to build libraries. On his
tombstone is an epitaph he personally wrote that applies to me as Chief Justice - "Here [is a
person] who knew how to enlist the service of better [people] than himself."
The alternative sentencing program continues to enjoy steady growth. During the three
years of FY08 through FY10 we accepted 48 new clients. For the three-year time period of
FY11 through FY13, 129 new clients were accepted. In FY14 alone there were 105 new clients
and in FY15 there were 170 new clients.
We served a total of 293 clients in FY15. Factoring in the number of unsuccessful
completions, in one year's time, 261 people were not in the penitentiary that would otherwise
be there. They are succeeding in overcoming the addiction that brought them into the criminal
justice system.
Depending on various factors, the cost of a year of incarceration in the penitentiary is in
the area of $25,000 per year. The cost of a year in a drug or alcohol court program is about
$9,000. The math favors the taxpayers.
In addition, there have been 588 dependent children of program participants in the last two
years. These children have not been in the custody of the Department of Social Services at
taxpayer expense of $10,000 per year, per child. As the book of Proverbs admonished thousands
of years ago, "train up [children] in the way [they] should go, and when [they] are old they will
not depart from it."
Through the vision of Governor Daugaard, this Legislature, and all who have worked on these types of programs since their inception in the Northern Black Hills, we are now approaching a point where all the cities in South Dakota that are large enough to provide the necessary services for a drug or alcohol court have one or the other, or, in some instances, both
types of courts. There remains an opportunity to set up drug and alcohol courts in the Brookings
area. I am requesting that this Legislature consider funding such a proposal.
Where do we go from here with the drug and alcohol courts? I see two additional
opportunities to keep addicts out of the penitentiary and restructure their lives so that they
become useful citizens who pay taxes and support their families.
First, I would like to see both alcohol and drug courts offered in each of the locations where
there is one or the other. You treat an alcoholic differently than a drug addict so, like a railroad,
twin rails for the track are necessary. A circuit judge who has been active in these programs for
years defined the difference between drug addicts and alcoholics this way: "Alcoholics, although
they are addicted to alcohol, generally they maintain a home and have some form of
employment. Drug addicts are 'couch potatoes.' They generally have no job, no home, and
nothing more than the clothes on their backs. Thus, a key component in getting drug addicts into
a drug court program is finding them a place to live and a job."
Second, I would like to see the existing programs expanded to accommodate more
participants. A lack of personnel is not holding us back from expansion. Rather, it is mainly the
lack of dollars for addiction treatment by trained professional counselors. We currently have a
capacity of 290 people. If we were to fund the Brookings program, that capacity would increase
to 310. From there if we were to add just one additional Court Services Officer---- in Minnehaha
County and expand the use of existing personnel with increased treatment dollars we could, in
one year, potentially increase our capacity from 290 to 445. That is more than currently are
housed in the women's penitentiary. The total cost of the increased treatment program would
be an additional $590,041 - a small fraction of the cost of constructing of a new prison and
staffing it.
These alternative sentencing programs are not easy. Every program graduate I have ever
talked to said it would have been easier to go to the penitentiary, do the time, and leave still an
addict. It is a proud day for each individual when he or she graduates from the program and can
move on to a productive life
The value of the program became evident when Governor Daugaard announced that the
state was able to avoid the construction of a new women's prison, which would be on-going
now, and the construction of a new men's prison, in the near future.
Several years ago a friend gave me a judicial gavel with a claw hammer on its head instead
of a normal cylindrical head. He said judges should use their authority to "build things." Such
a gavel can be used by judges in alternative sentencing programs to build lives, not additional
prisons.
Drug and alcohol courts take people who are not at high risk to the public and provide them with the tools necessary to reduce their risk both to themselves and the community. However, we do not bring individuals into our drug and alcohol courts with a guarantee of success. Addiction is a lifelong, relapsing, chronic disease that can only be treated, not cured. What we accomplish is to give individuals the opportunity to achieve success. In the end the burden falls on the individual. With the leverage of the criminal justice system and the partnership of treatment, he or she can succeed or fail with corresponding consequences. Simple fifteen minute
lectures do not work. Intensive twenty-four month rehabilitative programs do. As Benjamin
Franklin observed, "Tell me and I forget. Teach me and I remember. Involve me and I learn."
The Unified Judicial System started a local program called HOPE to combat drug and
alcohol addiction in rural areas. The pilot project was in Walworth County. It worked so well
we started additional programs in Tripp, Charles Mix, and Brown counties.
The HOPE program requires random drug or alcohol testing of participants. It also involves
intense supervision by specially trained UJS Court Services Officers. It is not a modified drug
or alcohol court program; rather, it is a form of intensive probation.
In a pilot program, we are starting a HOPE program in Aberdeen that already has a drug
court and an alcohol court. Since the HOPE program does not include the intensive professional
counselling and other components of a drug court, it is less expensive per client. We are going
to see if those who are not as addicted to alcohol or other drugs, but are involved with the legal
system can benefit from the HOPE program and save the openings in the drug and alcohol court
programs for those who more severely suffer from the disease of addiction. I hope to report to
you next year on how this experiment works.
The Fifth Judicial Circuit is also expanding its HOPE program. Presiding Judge Scott
Myren plans to have a HOPE program in every county of that circuit by the end of 2016.
Last year, this Legislature allowed the UJS to shift funds to set up a second group of
sixteen slots. Because there are 48 counties eligible for the program, we are excited to move the
program forward into its second phase.
I recently hosted a seminar for attorneys who are already practicing law in the program and
law students and attorneys who are interested in the program. The attorneys who are already
practicing reported that they were doing very well. One attorney already argued a case before
the South Dakota Supreme Court. Another reported he was "swamped" with clients who needed
his legal services. One attendee observed, "If you practice in an urban firm you live on 'their'
terms. If you practice in a rural setting you live on 'your' terms."
Each county that participates in the program or has shown an interest in participating has
individual needs. Clearly this is not a case of one size fits all. As Speaker Tip O'Neil once
quipped, "all politics is local." We work individually with each county to try to match an
attorney to the needs of that county.
Elder abuse can be generally divided into physical, emotional, or financial abuse.
According to the United States Department of Justice only one in 23 cases of elder abuse is
reported to a reporting agency. Of particular concern to me is that while we have laws to protect
seniors from physical and financial abuse, we have no explicit mental anguish or mental health
components in our abuse and neglect statutes. While the risk of emotional abuse may be less
than an epidemic of perpetration by third parties, keep in mind that 90% of elder abuse is
perpetrated by family members. Given the fact that 38 states do address the issue of emotional
abuse by statutory protection it certainly merits our attention.
In my message to you last year I reported my concerns over physical, emotional, and financial abuse of the elderly in South Dakota. I was delighted my public concerns became the catalyst for a law this Legislature passed to set up a task force to study the issue. This task force
had an organizational meeting in July and worked throughout the remainder of the year. It was
comprised of a group of outstanding South Dakota citizens who possess great knowledge in the
areas under study. Justice Steven Zinter of the South Dakota Supreme Court chaired the task
force. The UJS provided staffing and funding.
The task force issued a thorough report this past fall which is available for your review. The core
of the report indicates the following subjects were considered by the task force and many will
result in legislative proposals to this Legislature this session:
(1) Incorporating emotional and psychological abuse into our criminal abuse and neglect
statutes for elders;
(2) Recognizing the predominantly domestic or family nature of elder abuse, creating a
civil right of action for elder abuse similar to our existing protection order proceedings;
(3) Considering the creation of a central registry for substantiated reports, convictions,
and civil judgments of abuse and neglect of elders, but concluding adequate reporting
systems are already in place;
(4) Increasing the criminal penalty for theft by exploitation of an elder from a
misdemeanor to a felony;
(5) Clarifying abuse, neglect, and exploitation reporting by financial institutions;
(6) Employing a new prosecutor in the Office of the Attorney General to specialize in
prosecuting the financial exploitation of elders;
(7) Creating a civil right of action against financial exploiters who, if a family member
or heir, could be disinherited from the from the elder's estate;
(8) Creating enhanced protections in the execution of a power of attorney for financial and health care decisions;
(9) Identifying educational resources to assist public officials and the general public to
better identify and report elder abuse;
(10) Requesting the creation of an educational handbook to assist guardians and
conservators. 40 states have already done this;
(11) Asking the UJS to actively monitor guardians and conservators and notify them of
pending filing dates for accountings and reports;
(12) Requiring background checks for proposed guardians and conservators and generally
prohibiting felons from serving in those positions;
(13) Terminating a conflicting power of attorney when a guardian or conservator is
appointed by the court, and precluding such conflicting powers of attorney thereafter;
While this will not cure all aspects of the problem, it will make it more difficult to prey on
a vulnerable senior. As my father-in-law recently told me, "getting old is not for the timid."
Since those elders needing protection cannot be here today, on their behalf I wish to thank this
Legislature for giving its time and attention this most important work.
The law you passed seeks to divert funds from outside placements to local treatment
options for the juvenile and for the first time, the juvenile's families. As author Alex Haley
observed, "In every conceivable manner, the family is the link to our past, bridge to our future."
The overall goal is the same as with the adult corrections overhaul of a few years ago - to
hold youthful offenders more accountable, improve public safety, and save the taxpayers money
in the process.
Portions of the law went into effect on July 1, 2015 and other portions went into effect
January 1, 2016. Thus by a matter of days the program is becoming operational. It is too soon
to draw any comprehensive conclusions about how it is working. Next year I hope to be able to
give you a more extensive report.
The Public Safety Improvement Act seeks to lessen the number of felons sent to prison for
non-violent felonies. However, they have to go somewhere. That "somewhere" is often adult
probation with the UJS which results in some of the increase. The Act, however, also provides
for earned discharge credits for good behavior to reduce the length of probation. The UJS
awarded earned discharge credits to over 2,200 probationers last year. That credit can effectively
cut an offender's supervision time in half if he or she demonstrates good behavior and
compliance with the conditions of probation.
This multi-jurisdictional approach involves the Standing Rock Sioux Tribe, South Dakota's
Unified Judicial System, South Dakota's Department of Corrections, South Dakota's Department
of Tribal Relations, North Dakota's Department of Corrections, North Dakota's Indian Affairs
Commission, North and South Dakota's Federal Probation offices and the United States
Attorney's offices in both states.
This is a significant step forward in creating a collaborative approach to allow offenders
to return home and receive the supervision and services necessary for successful re-entry into
the home community. The UJS is hopeful that this approach will serve as a model for how our
probation program can work with other governmental entities to address complex
multi-jurisdictional issues.
With that in mind the South Dakota Supreme Court enacted a rule which expedites civil
actions where the damages claimed are under $75,000. There is limited discovery using
depositions and interrogatories. Each side is allowed two days for trial.
Nevertheless, we sometimes treat South Dakota's system of justice as if it is indestructible.
It has withstood some fierce onslaughts such as "JAIL for Judges" in 2006. In reality, it is not
indestructible. It needs our constant attention and concern. Our judicial system rests on our state
motto, "Under God the People Rule," on fundamental fairness, and on the principles of Equal
Protection and Due Process. Those principles, however, are often framed by the perception of
the beholder. That perception, more often than not, stems from an individual's trust and
confidence in our system of justice. That trust and confidence must be preserved.