The prayer was offered by the Chaplain, Fr. Joe Holzhauser, followed by the Pledge of
Allegiance led by Senate page Eli Pieper.
Roll Call: All members present except Sens. Nesiba, Partridge, and Peters who were
excused.
The Committee on Legislative Procedure respectfully reports that the Secretary of the
Senate has had under consideration the Senate Journal of the 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.
Lt. Governor Matt Michels, President of the Senate
Mark Mickelson, Speaker of the House
500 East Capitol Avenue
Pierre, SD 57501
Dear President and Speaker,
Pursuant to Article IV, Section 8 of the South Dakota Constitution, I respectfully submit to the
Legislature the enclosed Executive Orders concerning the administrative organization of state
government on this 4th Legislative day, January 13, 2017.
See page 88 of the Senate Journal for the Executive Reorganization Orders 2017-01 and
2017-02.
The Committee on Taxation respectfully reports that it has had under consideration SB 37
and 38 and returns the same with the recommendation that said bills do pass and be placed on
the consent calendar.
I have the honor to inform your honorable body that the House has adopted the report of the Joint-Select Committee relative to setting the compensation schedule for the elective and appointive officers and employees of the Senate and House for the Ninety-second Legislative Session.
I have the honor to inform your honorable body that the House has adopted the report of
the Joint-Select Committee relative to arranging for legislative days for the members, officers,
and employees of the House and Senate.
Also MR. PRESIDENT:
I have the honor to inform your honorable body that the House has adopted the report of
the Joint-Select Committee relative to making arrangements for the distribution of the official
directory, Senate and House journals, and bills and other legislative printing for the two houses
and the state offices.
Also MR. PRESIDENT:
I have the honor to inform your honorable body that the House has adopted the report of
the Joint-Select Committee relative to securing chaplains for the Ninety-second Legislative
Session.
Also MR. PRESIDENT:
I have the honor to inform your honorable body that the House has adopted the report of
the Joint-Select Committee relative to making arrangements for a memorial recognition of
deceased former members of the House and Senate.
HCR 1001: A CONCURRENT RESOLUTION, Reappointing Mr. Marty Guindon of
Pierre, South Dakota, to the Office of Auditor General.
Was read the second time.
Sen. White moved that the Senate do concur in HCR 1001 as found on page 57 of the
House Journal.
The question being on Sen. White's motion that HCR 1001 be concurred in.
And the roll being called:
Yeas 32, Nays 0, Excused 3, Absent 0
Excused:
Nesiba; Partridge; Peters
So the motion having received an affirmative vote of a majority of the members-elect, the
President declared the motion carried and HCR 1001 was concurred in.
Sen. Greenfield (Brock) moved that SB 20 be referred from the Joint Committee on
Appropriations to the Senate Committee on Appropriations
Which motion prevailed.
Sen. Greenfield (Brock) moved that SB 33 be referred from the Joint Committee on
Appropriations to the Senate Committee on Appropriations
Which motion prevailed.
Sen. Greenfield (Brock) moved that SB 35 be referred from the Joint Committee on
Appropriations to the Senate Committee on Appropriations
Which motion prevailed.
Sen. Curd moved that the report of the Joint-Select Committee relative to the Joint Rules
for the Ninety-second Legislative Session as found on page 55 of the Senate Journal be adopted.
Senator Nelson moved as a substitute motion that the Joint-Select Committee report on
the joint rules not be adopted and that a new committee be appointed with instructions to
consider the following:
New rule:
1B-3.1 Sexual contact prohibited. No legislator may have sexual contact with any legislative
intern or page who is not the legislator's fiancé or spouse.
Amendment to the following rule:
Sen. Curd requested a division of the question pursuant to J.R.5-9.
The President ruled the question is divisible.
Sen. Nelson objected to the ruling of the President.
Senator Nelson moved as a substitute motion that the Joint-Select Committee report on
the joint rules not be adopted and that a new committee be appointed with instructions to
consider the following:
New rule:
1B-3.1 Sexual contact prohibited. No legislator may have sexual contact with any legislative
intern or page who is not the legislator's fiancé or spouse.
Which motion lost.
Senator Nelson moved as a substitute motion that the Joint-Select Committee report on
the joint rules not be adopted and that a new committee be appointed with instructions to
consider the following:
Amendment to the following rule:
5-9. Division of the question. Any member may call for a division of the question. The
presiding officer shall divide the question if it contains questions so distinct that, one being
taken away, the rest may stand as a separate proposition. A motion for division of the question
is not in order on a bill which is before either house for final disposition.
Which motion lost.
The question being on Sen. Curd's pending motion that the report of the Joint-Select
Committee relative to the Joint Rules for the Ninety-second Legislative Session be adopted.
And the roll being called:
Yeas 19, Nays 13, Excused 3, Absent 0
Nays:
Ewing; Frerichs; Greenfield (Brock); Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck;
Nelson; Russell; Stalzer; Tapio
Excused:
Nesiba; Partridge; Peters
So the motion having received an affirmative vote of a majority of the members-elect, the
President declared the motion carried.
SB 8: FOR AN ACT ENTITLED, An Act to codify legislation enacted in 2016.
Was read the second time.
The question being “Shall SB 8 pass?”
And the roll being called:
Yeas 32, Nays 0, Excused 3, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Netherton;
Novstrup; Otten (Ernie); Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann;
White; Wiik; Youngberg
Excused:
Nesiba; Partridge; Peters
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 16: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding a
violation for an escape from certain facilities, programs, or services located outside the
penitentiary.
Was read the second time.
And the roll being called:
Yeas 32, Nays 0, Excused 3, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Netherton;
Novstrup; Otten (Ernie); Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann;
White; Wiik; Youngberg
Excused:
Nesiba; Partridge; Peters
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 47: FOR AN ACT ENTITLED, An Act to revise and repeal certain provisions
regarding dental corporations.
Was read the second time.
The question being “Shall SB 47 pass?”
And the roll being called:
Yeas 32, Nays 0, Excused 3, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Netherton;
Novstrup; Otten (Ernie); Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann;
White; Wiik; Youngberg
Excused:
Nesiba; Partridge; Peters
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 51: FOR AN ACT ENTITLED, An Act to revise certain references regarding loans and
investments for insurance companies.
Was read the second time.
And the roll being called:
Yeas 32, Nays 0, Excused 3, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Netherton;
Novstrup; Otten (Ernie); Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann;
White; Wiik; Youngberg
Excused:
Nesiba; Partridge; Peters
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 25: FOR AN ACT ENTITLED, An Act to provide for the release of certain booking
photographs.
Was read the second time.
The question being “Shall SB 25 pass?”
And the roll being called:
Yeas 20, Nays 12, Excused 3, Absent 0
Nays:
Bolin; Ewing; Frerichs; Heinert; Jensen (Phil); Kennedy; Killer; Langer; Maher; Otten (Ernie);
Soholt; Sutton
Excused:
Nesiba; Partridge; Peters
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 52: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding federal
covered securities.
Was read the second time.
The question being “Shall SB 52 pass?”
And the roll being called:
Yeas 31, Nays 1, Excused 3, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Netherton;
Novstrup; Otten (Ernie); Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann;
White; Wiik; Youngberg
Nays:
Nelson
Excused:
Nesiba; Partridge; Peters
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. Monroe moved that the Senate do now adjourn, which motion prevailed and at
1:26 p.m. the Senate adjourned.
WHEREAS, this executive order has been submitted to the 92nd Legislative Assembly on the
4th legislative day, being the 13th day of January, 2017;
IT IS, THEREFORE, BY EXECUTIVE ORDER, directed that the executive branch of state
government be reorganized to comply with the following sections of this order.
Section 2. Any agency not enumerated in this order, but established by law within another
agency which is transferred to a principal department under this order, shall also be transferred
in its current form to the same principal department and its functions shall be allocated between
itself and the principal department as they are now allocated between itself and the agency
within which it is established.
Section 3. "Agency" as used in this order shall mean any board, authority, commission,
department, bureau, division or any other unit or organization of state government.
Section 4. "Function" as used in this order shall mean any authority, power, responsibility,
duty or activity of an agency, whether or not specifically provided for by law.
Section 5. Unless otherwise provided by this order, division directors shall be appointed
by the head of the department of which the division is a part, and shall be removable at the
pleasure of the department head, provided, however, that both the appointment and removal of
division directors shall be subject to approval by the Governor.
Section 6. It is the intent of this order not to repeal or amend any laws relating to functions
performed by an agency, unless the intent is specifically expressed in this order or unless there
is an irreconcilable conflict between this order and those laws.
Section 7. If a part of this order is invalid, all valid parts that are severable from the invalid
part remain in effect. If a part of this order is invalid in one or more of its applications, the part
remains in effect in all valid applications.
Section 9. It is hereby declared that the sections, clauses, sentences and parts of this
executive order are severable, are not matters mutual essential inducement, and any of them
may be excised by any court of competent jurisdiction if any section, clause, sentence or part
of this executive order would otherwise be unconstitutional or ineffective.
Section 10. In the event that it has been determined that a function of a transferred agency,
which has not been eliminated by this order, and its associated records, personnel, equipment,
facilities, unexpended balances or appropriations, allocations or other funds have not been
clearly allocated to an agency, the Governor shall specify by interim procedures the allocation
of the function and its associated resources. At the next legislative session following the
issuance of such interim procedures, the Governor shall make recommendations concerning the
proper allocation of the functions or transferred agencies which are not clearly allocated by this
order. Any interim procedures issued in conjunction with this section shall be filed with the
Secretary of State.
Section 11. The rights, privileges and duties of the holders of bonds and other obligations
issued, and of the parties to contracts, leases, indentures, and other transactions entered into,
before the effective date of this order, by the state or by any agency, officer, or employee
thereof, and covenants and agreements as set forth therein, remain in effect, and none of those
rights, privileges, duties, covenants, or agreements are impaired or diminished by abolition of
an agency in this order. The agency to which functions of another agency are transferred is
substituted for that agency and succeeds to its rights and leases, indentures, and other
transactions.
Section 12. No judicial or administrative suit, action or other proceeding lawfully
commenced before the effective date of this order by or against any agency or any officer of the
state, in his official capacity or in relation to the discharge of his official duties, shall abate or
be affected by reason of taking effect of any reorganization under the provision of this order.
The court may allow the suit, action or other proceeding to be maintained by or against the
successor of any agency or any officer affected by this order.
Section 13. If any part of this order is ruled to be in conflict with federal requirements
which are a prescribed condition to the receipt of federal aid by the state, an agency or a
political subdivision, that part of this order has no effect and the Governor may by executive
order make necessary changes to this order to receive federal aid, and the changes will remain
in effect until the last legislative day of the next legislative session or until the Legislature
completes legislation addressed to the same questions, whichever comes first.
Section 14. Pursuant to § 2-16-9, the Code Commission and Code Counsel of the Legislative Research Council are required to make the name and title changes necessary to correlate and integrate the organizational changes made by this Executive Reorganization Order into the South Dakota Codified Laws.
Section 16. Whenever a function is transferred by this order, all personnel, records,
property, unexpended balances or appropriations, allocations or other funds utilized in
performing the function are also transferred by this order.
Section 17. The effective date of this Executive Reorganization Order #2017-01 shall be
ninety days after its submission to the Legislature.
Section 19. The functions of the South Dakota Advisory Council on Aging established by
Executive Order 2012-04 shall now be performed in relation to the Department of Human
Services. The Secretary of Human Services shall perform the functions of the former Secretary
of Social Services relating to the South Dakota Advisory Council on Aging.
Section 20. That § 1-36-36 be amended to read as follows.
1-36-36. Each person hired by the Department of Social Services to serve as a social
service aide, family services specialist, family services specialist supervisor, and regional
manager in the Division of Child Protection Services or by the Department of Human Services
as a home health aide, adult services and aging specialist, social services supervisor, and
regional manager in the Division of Adult Services and Aging shall submit to a criminal
background investigation, by means of fingerprint checks by the Division of Criminal
Investigation and the Federal Bureau of Investigation. The department shall submit completed
fingerprint cards to the Division of Criminal Investigation before the prospective new employee
enters into service. If no disqualifying record is identified at the state level, the fingerprints shall
be forwarded by the Division of Criminal Investigation to the Federal Bureau of Investigation
for a national criminal history record check. Any person whose employment is subject to the
requirements of this section may enter into service on a temporary basis pending receipt of
results of the criminal background investigation. The department may, without liability,
withdraw its offer of employment or terminate the temporary employment without notice if the
report reveals a disqualifying record. Any person whose employment is subject to the
requirements of this section shall pay any fees charged for the criminal record check.
Section 21. That § 1-36A-1.3 be amended to read as follows.
1-36A-1.3. Agencies constituting department. The Department of Human Services shall
consist of the following agencies:
(1) The Division of Developmental Disabilities;
(3) The Division of Rehabilitation Services;
(4) The Division of Service to the Blind and Visually Impaired;
(5) The Division of Adult Services and Aging.
Section 22. That § 22-46-5 be amended to read as follows.
22-46-5. The person or agency that receives, pursuant to § 22-46-7, a report of abuse,
neglect, or exploitation of an elder or adult with a disability shall also forward the report to the
Office of the Attorney General, if the person or agency determines that reasonable suspicion
exists to support further investigation. In investigating a violation of this chapter, law
enforcement agencies shall cooperate with and assist the Department of Social Human Services.
Upon receiving a report made pursuant to this chapter, the law enforcement agency shall
evaluate whether a criminal investigation is appropriate.
Section 23. That § 22-46-7 be amended to read as follows.
22-46-7. A report of abuse, neglect, or exploitation under this chapter may be made orally
or in writing to the state's attorney of the county in which the elder or disabled adult resides or
is present, to the Department of Social Human Services, or to the law enforcement officer. The
state's attorney or law enforcement officer, upon receiving a report, shall immediately notify
the Department of Social Human Services.
Section 24. That § 22-46-9 be amended to read as follows.
22-46-9. Any:
(1) Physician, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, religious
healing practitioner, hospital intern or resident, nurse, paramedic, emergency medical
technician, social worker, or any health care professional;
(2) Psychologist, licensed mental health professional, or counselor engaged in
professional counseling; or
(3) State, county, or municipal criminal justice employee or law enforcement officer;
who knows, or has reasonable cause to suspect, that an elder or adult with a disability has been
or is being abused, neglected, or exploited, shall, within twenty-four hours, report such
knowledge or suspicion orally or in writing to the state's attorney of the county in which the
elder or adult with a disability resides or is present, to the Department of Social Human
Services, or to a law enforcement officer. Any person who knowingly fails to make the required
report is guilty of a Class 1 misdemeanor.
A person described in this section is not required to report the abuse, neglect, or exploitation of an elder or adult with a disability if the person knows that another person has already reported to a proper agency the same abuse, neglect, or exploitation that would have been the basis of the person's own report.
28-1-44. The Department of Social Human Services may establish a program of services
for adults and the elderly to promote the development, coordination, and utilization of resources
to meet the long-term needs of adults and the elderly and to provide services to assist them in
their social and health problems. The program may include program planning and development,
coordination of services for adults and the elderly, and administration of programs funded under
the Older Americans Act, Social Security Act, and other federal programs which are available
for health, social, transportation, nutrition, counseling, protective, and referral services for
adults and the elderly.
Section 26. That § 28-1-45 be transferred to chapter 1-36A.
Section 27. That § 28-1-45.1 be transferred to chapter 1-36A.
Section 28. That § 28-1-45.2 be transferred to chapter 1-36A.
Section 29. That § 28-1-45.5 be transferred to chapter 1-36A.
Section 30. That § 28-1-45.7 be transferred to chapter 1-36A.
Section 31. That § 29A-5-110 be amended to read as follows.
29A-5-110. Any adult individual may be appointed as a guardian, a conservator, or both,
if capable of providing an active and suitable program of guardianship or conservatorship for
the minor or protected person, and if not employed by any public or private agency, entity, or
facility that is providing substantial services or financial assistance to the minor or protected
person. The court may waive the prohibition on appointing an individual as guardian or
conservator because of the individual's employment if the court finds the appointment is in the
best interest of the minor or protected person.
Any public agency or nonprofit corporation may be appointed as a guardian, a conservator,
or both, if it is capable of providing an active and suitable program of guardianship or
conservatorship for the minor or protected person, and if it is not providing substantial services
or financial assistance to the minor or protected person.
Any bank or trust company authorized to exercise trust powers or to engage in trust
business in this state may be appointed as a conservator if it is capable of providing a suitable
program of conservatorship for the minor or protected person.
The Department of Human Services or the Department of Social Services may be
appointed as a guardian, a conservator, or both, for individuals under its care to whom it is
providing services or financial assistance, but such appointment may only be made if there is
no individual, nonprofit corporation, bank or trust company, or other public agency that is
qualified and willing to serve.
No individual who has been convicted of a felony is eligible for appointment as a guardian
or conservator unless the court finds appointment of the person convicted of a felony to be in
the best interests of the person for whom the guardianship or conservatorship is sought. As part
of the best interest determination, the court shall consider the nature of the offense, the date of
offense, and the evidence of the proposed guardian's or proposed conservator's rehabilitation.
A person, except for a financial institution or its officers, directors, employees, or agents,
or a trust company, who has been nominated for appointment as a guardian or conservator, shall
obtain an Interstate Identification Index criminal history record check and a record check of
South Dakota state court civil judgments for abuse, neglect, or exploitation of an elder or adult
with a disability. The nominee shall file the results of these record checks with the court at least
ten days prior to the appointment hearing date, unless waived or modified by the court for good
cause shown by affidavit filed simultaneously with the petition for appointment.
The judge may not sign an order appointing a guardian or conservator until the record
check results have been filed with the court and reviewed by the judge. The record check
results, or the lack thereof, shall be certified by affidavit. The court may not require a record
check upon the application of a petitioner for a temporary guardianship or temporary
conservatorship. The court may waive the record check for good cause shown.
Section 32. That § 29A-5-305 be amended to read as follows.
29A-5-305. A petition for the appointment of a guardian, a conservator, or both, may be
filed by the person alleged to need protection, by an interested relative, by the individual or
facility that is responsible or has assumed responsibility for the person's care or custody, by the
individual or entity that the person has nominated as guardian or conservator, or by any other
interested person, including the department of human services or the department of social
services.
The petition shall state the petitioner's name, place of residence, post office address, and
relationship to the person alleged to need protection, and shall, to the extent known as of the
date of filing, state the following with respect to the person alleged to need protection and the
relief requested:
(1) The person's name, date of birth, place of residence or location, and post office
address or, if it is alleged that the person is an absentee, the person's last known residence and
post office address;
(2) The names and post office addresses of the person's nearest relatives, in the following
order:
(a) The spouse and children, if any; or if none
(b) The parents and brothers and sisters, if any; or if none
(3) The name, place of residence or location, and post office address of the individual or
facility that is responsible for or has assumed responsibility for the person's care or custody;
(4) The name, place of residence or location, and post office address of any agent or
agents designated under a durable power of attorney of which the person alleged to need
protection is the principal, and the petitioner shall attach a copy of any such power or powers
of attorney, if available;
(5) Whether the person's incapacity will prevent attendance at the hearing and the reasons
therefor;
(6) If the petition alleges that the person is an absentee, a statement of the relevant
circumstances, including the time and nature of the disappearance or detention and a description
of any search or inquiry concerning the person's whereabouts;
(7) The type of guardianship or conservatorship requested, the reasons therefor, and the
interest of the petitioner in the appointment;
(8) The name, post office address and, if the proposed guardian or conservator is an
individual, the individual's age, occupation and relationship to the person alleged to need
protection;
(9) The name, post office address and, if the person alleged to need protection has
nominated a guardian or conservator who is an individual, the individual's age, occupation and
relationship to the person alleged to need protection;
(10) The name and post office address of any guardian or conservator currently acting,
whether in this state or elsewhere;
(11) If the appointment of a limited guardian is requested, the specific areas of protection
and assistance to be included in the court's order of appointment; and
(12) If the appointment of a limited conservator is requested, the specific areas of
management and assistance to be included in the court's order of appointment.
Dated in Pierre, South Dakota, this 13th day of January, 2017.
Dennis Daugaard
Governor of South Dakota
(Seal) ATTEST:
Teresa Bray, Deputy
On behalf of Shantel Krebs
Secretary of State
WHEREAS, this executive order has been submitted to the 92nd Legislative Assembly on
the 4th legislative day, being the 13th day of January, 2017;
IT IS, THEREFORE, BY EXECUTIVE ORDER, directed that the executive branch of
state government be reorganized to comply with the following sections of this order.
Section 2. Any agency not enumerated in this order, but established by law within
another agency which is transferred to a principal department under this order, shall also be
transferred in its current form to the same principal department and its functions shall be
allocated between itself and the principal department as they are now allocated between
itself and the agency within which it is established.
Section 3. "Agency" as used in this order shall mean any board, authority, commission,
department, bureau, division or any other unit or organization of state government.
Section 4. "Function" as used in this order shall mean any authority, power,
responsibility, duty or activity of an agency, whether or not specifically provided for by law.
Section 5. Unless otherwise provided by this order, division directors shall be
appointed by the head of the department or bureau of which the division is a part, and shall
be removable at the pleasure of the department or bureau head, provided, however, that both
the appointment and removal of division directors shall be subject to approval by the
Governor.
Section 6. It is the intent of this order not to repeal or amend any laws relating to
functions performed by an agency, unless the intent is specifically expressed in this order or
unless there is an irreconcilable conflict between this order and those laws.
Section 8. Except when inconsistent with the other provisions of this order all rules,
regulations and standards of the agencies involved in executive reorganization in effect on
the effective date of this order, shall continue with full force and effect until they are
specifically altered, amended, or revoked in the manner provided by law, unless the
statutory authority for such rules is superseded by this order.
Section 9. It is hereby declared that the sections, clauses, sentences and parts of this
executive order are severable, are not matters of mutual essential inducement, and any of
them may be excised by any court of competent jurisdiction if any section, clause, sentence
or part of this executive order would otherwise be unconstitutional or ineffective.
Section 10. In the event that it has been determined that a function of a transferred
agency, which has not been eliminated by this order, and its associated records, personnel,
equipment, facilities, unexpended balances or appropriations, allocations or other funds have
not been clearly allocated to an agency, the Governor shall specify by interim procedures the
allocation of the function and its associated resources. At the next legislative session
following the issuance of such interim procedures, the Governor shall make
recommendations concerning the proper allocation of the functions of transferred agencies
which are not clearly allocated by this order. Any interim procedures issued in conjunction
with this section shall be filed with the Secretary of State.
Section 11. The rights, privileges and duties of the holders of bonds and other
obligations issued, and of the parties to contracts, leases, indentures, and other transactions
entered into, before the effective date of this order, by the state or by any agency, officer, or
employee thereof, and covenants and agreements as set forth therein, remain in effect, and
none of those rights, privileges, duties, covenants, or agreements are impaired or diminished
by abolition of an agency in this order. The agency to which functions of another agency are
transferred is substituted for that agency and succeeds to its rights and leases, indentures,
and other transactions.
Section 12. No judicial or administrative suit, action or other proceeding lawfully
commenced before the effective date of this order by or against any agency or any officer of
the state, in his official capacity or in relation to the discharge of his official duties, shall
abate or be affected by reason of the taking effect of any reorganization under the provisions
of this order. The court may allow the suit, action or other proceeding to be maintained by or
against the successor of any agency or any officer affected by this order.
Section 13. If any part of this order is ruled to be in conflict with federal requirements which are a prescribed condition to the receipt of federal aid by the state, an agency or a political subdivision, that part of this order has no effect and the Governor may by executive order make necessary changes to this order to receive federal aid, and the changes will
remain in effect until the last legislative day of the next legislative session or until the
Legislature completes legislation addressed to the same question, whichever comes first.
Section 14. Pursuant to § 2-16-9, the Code Commission and Code Counsel of the
Legislative Research Council are requested to make the name and title changes necessary to
correlate and integrate the organizational changes made by this Executive Reorganization
Order into the South Dakota Codified Laws.
Section 15. Any provisions of law in conflict with this order are superseded.
Section 16. Whenever a function is transferred by this order, all personnel, records,
property, unexpended balances of appropriations, allocations or other funds utilized in
performing the function are also transferred by this order.
Section 17. The effective date of this Executive Reorganization Order #2017-01 shall
be ninety days after its submission to the Legislature.
Section 19. Pursuant to § 2-16-9, the Code Commission and Code Counsel of the
Legislative Research Council are requested to amend the following sections by deleting
references to "Division of Securities" and inserting "Division of Insurance."
37-5B-1; 37-5B-5; 37-5B-44; 37-24-5.2; 37-25A-1; 37-25A-3; 37-25A-4; 37-25A-5;
37-25A-8; 37-25A-9; 37-25A-11; 37-25A-12; 37-25A-13; 37-25A-18; 37-25A-19;
37-25A-20; 37-25A-22; 37-25A-23; 37-25A-25; 37-25A-26; 37-25A-27; 37-25A-28;
37-25A-29; 37-25-30; 37-25A-31; 37-25A-32; 37-25A-33; 37-25A-34; 37-25A-35;
37-25A-36; 37-25A-41; 37-25A-42; 37-25A-44; 37-25A-45; 58-28-31
Section 20. That § 1-37-21 be amended to read as follows:
1-37-21. Administrative functions performed for subordinate divisions. The
Department of Labor and Regulation shall, under the direction and control of the secretary
of labor and regulation, perform all administrative functions (as defined in § 1-32-1) of the
following divisions:
(1) The Division of Banking, created by chapter 51A-2;
(2) The Division of Securities;
(3) (2) The Division of Insurance, created by chapter 58-2.
Section 21. That § 1-37-16 be repealed.
1-37-16. Division of Securities transferred. The Division of Securities and its functions
in the former Department of Revenue and Regulation are transferred to the Department of
Labor and Regulation created by Executive Reorganization Order 2011-01. The secretary of
labor and regulation shall perform the functions of the former secretary of revenue and
regulation, relating to the Division of Securities.
Section 22. That § 1-47-8 be repealed.
1-47-8. Division of Securities transferred. The Division of Securities and its functions
in the former Department of Revenue and Regulation are transferred to the Department of
Labor and Regulation. The secretary of the Department of Labor and Regulation shall
perform the functions of the former secretary of the Department of Revenue and Regulation,
relating to the Division of Securities.
Dated in Pierre, South Dakota, this 13th day of January, 2017.
Dennis Daugaard
Governor of South Dakota
(Seal) ATTEST:
Teresa Bray, Deputy
On behalf of Shantel Krebs
Secretary of State
In March of 1861 as the United States was on the verge of tearing itself apart in a
bloody Civil War, Congress passed the Organic Law creating the Dakota Territory. This
initial government was modeled after the federal constitution and divided up governmental
authority into the legislative, executive, and judicial branches. In 1889 the constitution of
the new state of South Dakota continued this model. It remains a fundamental "bedrock" of
our republican form of government.
In arguing for adoption of the United States Constitution, James Madison set forth the
reasons for the necessity of three branches of government: "It may be a reflection on human
nature that such devices should be necessary to control the abuses of government. But what
is government itself but the greatest of all reflections on human nature? If [people] were
angels, no government would be necessary. If angels were to govern [people], neither
external or internal controls on government would be necessary."
Now, 128 years after the adoption of the South Dakota Constitution, that format
continues to stand the test of time and works well for the benefit of our citizens.
Last year this Legislature passed SB 54 which, for the first time, provided broad, across
the board, protections for South Dakota's senior citizens. Under this act, protection begins
when a South Dakotan reaches age 65. As we all know, life expectancy in South Dakota
now extends well past that age.
SB 54 contains important protections for South Dakota's seniors. For the first time
emotional abuse is a criminal offense. We join with 38 other states in making the perpetrator
of emotional abuse civilly and now criminally liable. For a violation to occur the perpetrator
must be the elder's caretaker and the emotional misconduct must be willful, malicious, and
repeated. A careless or negligent act is not a crime. It comports with United States
Supreme Court Justice Oliver Wendel Holmes Jr.'s observation that, "even a dog
distinguishes between being stumbled over and being kicked." As with domestic abuse, the
courts and law enforcement can protect a victim through a protection order and the
prohibition of stalking.
In the past, many instances of elder abuse were written off as family squabbles because
law enforcement and part-time prosecutors were not familiar with which abusive acts were
criminal. This law provides funding for the Attorney General to hire a full-time elder abuse
prosecutor and a full-time investigator. It is modeled after a successful program in
California. Although this position has only been in existence for six months, the Attorney
General reports that the caseload has exceeded his original expectations. There have already
been 135 referrals to this new position.
The penalty for financial exploitation of an elder has increased from a misdemeanor to
a felony. Previously, a bank or other financial institution suspecting financial abuse of an
elder could only report the suspected abuse to federal banking authorities and that report
never made its way to South Dakota law enforcement officials. Now banks may also report
the matter to the Attorney General who will maintain a central registry of reports and have
the ability to investigate and prosecute.
A civil cause of action is available against a person who financially exploits an elder.
Should the elder prevail, he or she can recover compensatory damages, punitive damages,
and reasonable attorney fees in appropriate cases.
SB 54 reins in abuses in the creation of joint-tenancy accounts. If a person uses a
joint-tenancy to financially damage an elder, the court may sever the joint-tenancy and
return the funds to the elder unless the other joint-tenant can prove financial contribution to
the account.
If financial misconduct is committed by a person who stands to gain through a will or
other device upon the elder's death, the court may order the forfeiture of the perpetrator's
interest in the will. A perpetrator will no longer be able to literally and improperly "probate"
an elder's estate while the elder is still alive.
Last November, I called for a task force to address this situation and other challenges at
the intersection of mental health and criminal justice. I was quickly joined and fully
supported by Governor Daugaard.
Together we created a task force which brought together 22 key stakeholders in the
criminal justice and mental health fields. We met for the first time in March 2016 and
continued to meet monthly until our work was completed last October. The task force
received financial support from the Leona M. and Harry B. Helmsley Charitable Trust.
The task force had three goals:
(1) To improve public safety and treatment of people with mental illness who
come into contact with the criminal justice system;
(2) To more quickly and effectively identify people suffering from a form of
mental illness; and,
(3) To better allocate limited local resources in order to improve early
intervention and preserve limited jail and prison resources for violent, chronic, and
career criminals.
The task force further recommends other proposals. Examples include training in this
area for law enforcement, prosecutors, judges and probation officers to educate them on the
signs of mental illness and how to better deal with it in the law enforcement and judicial
systems.
I would like to thank the members of the task force for their many months of study and
hard work that went into the preparation of the report that you now have. This is a fine
example of South Dakotans confronting a South Dakota problem and coming up with a
South Dakota solution.
South Dakota is fortunate to have programs in place for alternative sentencing
including drug, DUI, and veterans courts as well as the HOPE program. Without these we
would be faced with the unfortunate situation of building a new women's prison and a new
men's prison and staffing them on a 24/7 basis.
Drug and alcohol courts in South Dakota continue to grow and expand. As of July 1, 2016, there are eight drug courts, four DUI/alcohol courts, two drug and DUI courts and two veterans courts for a total of 16 courts. This includes a new drug court in Brookings and significant expansion in Minnehaha and Pennington counties.
Our history is positive in moving the programs forward:
YEAR PARTICIPANTS SERVED
FY08 TO FY12 153
FY13 TO FY16 616
FY17 (projected) 614
Because of our increased numbers, the cost per participant served has dropped due to
economy of scale. In 2015 the cost was approximately $9000 per year, per participant. With
the increased numbers that figure has fallen to $8300 per year, per participant. Compare
these figures with the $25,000 cost of a year in the penitentiary. We now treat three
participants in our drug and alcohol courts for the cost of a single inmate in the penitentiary
for the same period of time.
The financial savings and the human gains do not end there. Our drug and alcohol court
participants are parents of 707 children who, if their parents were in the penitentiary instead
of our programs, would be the wards of DSS at $10,000 per year, per child. Instead, these
707 children are living with and being supported by their parents. Thus, in one year, we
saved taxpayers $7,070,000 in child care costs.
Additional savings are realized by not having people with addictions clogging our
hospital emergency rooms and placing additional burdens on the medical system paid for by
taxpayers either in the form of increased medical costs or county poor relief.
While these are good numbers, they are only numbers. The human gains are just as
important. In March, I had the opportunity to speak at the DUI court graduation in
Rapid City. Five proud people graduated that day. One, with 658 days of sobriety, told of his
attempt to defeat alcohol. Although he was only 47 years old, he had been in the
penitentiary five times for DUI and failed treatment 15 times. He found sobriety and a new
life through the Pennington County DUI court. Summing up the change in his life, he
reflected, "everything is better from top to bottom." He now occupies a job rather than a
prison cell.
I encourage you to attend a drug or alcohol court graduation.
They are public events and everyone is welcome. I have yet to attend a graduation
where people were not moved by hearing graduates speak about their struggle with
addiction and the positive turn-around their lives experienced as a result of an arrest which
led them to these fine programs.
Pennington County is waiting for full funding to start a veterans court. It, however, has
started a "veterans track" probation program. It has 128 veterans on probation; 80 are on
felony probation. They receive special attention because they have returned from the service
with potential service-related problems.
At the end of the horrific Civil War, President Lincoln said, "Thank God I have lived to
see this day. It seems to me that I have been dreaming a horrid dream for four years and now
the nightmare is gone." We hope veterans who complete our program will be able to put
their demons behind them and say the same.
These programs could not move forward without the full cooperation of the
Veterans Administration in South Dakota. It has given us access to both in-patient and
out-patient treatment for the veterans who need it.
As a condition of supervised probation, participants follow the requirements of
HOPE probation under the supervision of a specially trained Court Services Officer. The
program focuses on drug offenders with a high risk to reoffend. Random, frequent drug
testing is a key component of HOPE. There are swift, certain, and proportional sanctions for
noncompliance with probation conditions or failing a drug test.
Last year this Legislature recognized HOPE's success, removed its "pilot" status, and
allowed statewide implementation of HOPE probation. Statewide protocols have been put in
place to ensure consistency. Given the effectiveness of this program, it is the goal of the UJS
to use HOPE in a significant number of counties across the state, affording offenders the
opportunity to remain in their communities under HOPE probation supervision and to stay
out of the penitentiary.
While there has been significant growth of the penitentiary population, the county jail
population, and other alternative sentencing programs, the growth in the number of people
on felony probation is measured in the 1000's:
FISCAL YEAR CASES OF ADULT
ENDING FELONY PROBATIONER
FY11 5130
FY12 5149
FY13 5892
FY14 6893
FY15 8006
FY16 8634
These numbers do not reflect the total number of people on probation. We also
supervise juveniles, people convicted of misdemeanors, and Interstate Compact felons from
other states. The result is increased pressure on our Court Service Officers who are
responsible for supervising probation. The average individual caseload has increased from
88 per CSO in FY 2011 to 114 in FY 2016. The nationally recommended caseload is a
maximum of 80. The rubber band will only stretch so far before it breaks.
Does this mean everyone should be on probation? Of course not. Dangerous felons,
career criminals, sex offenders and the like belong in a penitentiary. Those seriously
addicted to drugs or alcohol belong in our drug and alcohol courts and other treatment
programs. The vast majority of the 8634 people on adult felony probation however, remain
on, or successfully complete, probation.
I never tire of getting into the car and visiting one or more of our 64 courthouses. As
South Dakota is the land of "Infinite Variety," so are our courthouses. They are large, small,
old, new, humble, palatial, and everything in between. Three pre-date statehood and are still
in use. A courthouse, solely as a structure, serves a very limited function. It is only when
one considers what happens inside the courthouse walls, that these buildings acquire a
special and unique significance in our society. Courthouses are used to provide justice,
resolve disputes, and keep the peace. While participants come and go, the building, and
more importantly what it is used for, endures. As the prophet Amos declared over three
thousand years ago, "let justice roll down like waters."
The availability of attorneys in rural areas of South Dakota is essential to the successful
operation of our state's legal system.
Without them a courthouse is little more than any other public building. No legal
system can operate on "auto-pilot." It takes the professional skills of an attorney to keep the
system moving.
48 of our 66 counties have a population of under 10,000. The few remaining urban
areas cannot become isolated outposts of justice. If they do, it is only a question of time
before they topple and the entire legal system begins to collapse.
South Dakota's rural attorney program continues to be a model for the nation. Its goal is to place licensed attorneys in counties with a population of under 10,000 by providing financial incentives to the attorney to practice full-time in that county for five years. The financial incentive is in an amount equivalent to the cost of an in-state legal education. The program lends a helping hand to those attorneys who want to establish a law practice in a
rural area. As President Ronald Reagan noted, "There are no easy answers but there are
simple ones."
Originally this Legislature authorized funding to place 16 attorneys and gave us five
years to complete the project. Although each county has individual needs, we were able to
fill all 16 slots in a little over two years. We then received legislative authorization to
re-direct UJS funds to create an additional 16 slots. We took advantage of this second
authorization and now have contracts with 17 counties.
The shortage of attorneys in rural areas is not just a problem for the so-called "fly-over"
states. 48 of the 50 states have the same rural attorney problem. These states can benefit
from the success of our program. I was pleased to be able to spread the word of this South
Dakota success when I addressed the American Bar Association in February and a legal
services forum in the White House last April.
The current law limits participants to counties under the population cap of 10,000.
There are, however, smaller municipalities in larger counties that could benefit from
program participation. As an example, the town of Wall is hardly a suburb of Rapid City. I
will offer this Legislature the opportunity to expand the scope of the current program to
include municipalities with a population under 3,000. No additional tax dollars will be
required, just expansion of the existing program to include these rural municipalities along
with the rural counties.
To show the essential nature of the rural attorney to South Dakota, simply think back
on each topic I am discussing today. How many could function without the direct
involvement of an attorney? How many small counties and cities could function without
legal services? Will we re-populate the land with attorneys available to all no matter the
locale? Probably not. But as my friend, Chief Judge Judith Kaye of the New York Court of
Appeals observed, "We might not be able to move mountains but we sure can try to nudge
them a bit."
Each of our nine Indian reservations has a tribal legal system and court. Federal statutes
play a significant role in the area. Despite its importance, very few South Dakota attorney
practitioners possessed a working knowledge of Indian Law when I started practicing law.
In 2002, after several years of my urging, the Supreme Court modified its requirements for
the South Dakota bar exam and required mandatory testing on the subject of Indian Law.
The rationale was simple. To pass the South Dakota bar exam one would have to know the
subject of Indian Law and be competent in that area of law. South Dakota was the second
state in the nation to test on Indian Law.
I am opposed to any modification of our bar exam that would have the ultimate effect
of removing Indian Law from our legal scene. My position is strongly supported by the
Supreme Court and the Board of Bar Examiners. While other states may choose to go with
standardized tests that do not include an examination on Indian Law, South Dakota's best
course of action is to continue to administer our bar exam on an independent basis consistent
with the best interests of all our citizens. Cooperation between the tribes and the state must
be more than mere words. It must also be deeds. As Benjamin Franklin observed, "Well
done is better than well said."
For far too long, the three legal aid services in South Dakota that provide legal services
to those who cannot afford them have been underfunded and understaffed. Limited federal
funds and additional contributions from concerned organizations cannot come close to
filling the need that exists. The bulk of the need is in the area of domestic relations. Imagine
you, as a parent, having the future custody of your children decided in a court proceeding
with you acting as your own attorney. Nationally, 81% of domestic relations cases find one
or both of the parties unable to afford an attorney. They must represent themselves in these
important cases the best they can.
Three years ago I invited the three legal services entities to participate in discussions
about increased efficiency and coordination. While we had fruitful discussions, the core
problem was, and still is, the lack of funding to meet the needs. It is time to have a serious
discussion about how this crisis can be solved.
About 10 years ago technology stepped in and made the bulk of legal research
materials available online. Literally overnight, the necessity for a majority of the law books
disappeared. This allowed the Supreme Court to contemplate restoring the law library to
how it looked in 1911. Unfortunately we did not know what the law library originally
looked like. Through a bit of luck we located a 1911 copy of the Western Architectural
Digest which showcased a photograph of the law library when the Capitol opened.
Armed with this picture and the ability to discard law books replaced by computer
terminals, we started to hunt for a rumored mural covered by bookcases. Removal of the
mezzanine bookcases established there never was a missing mural. While the rumor had the
makings of a great story, in the end it was not factually accurate. However, we did find
names of distinguished Dakota Territorial and early South Dakota Supreme Court Justices
painted at the top of the library walls. For unknown reasons, these names along with
gorgeous patterns and stenciling had been painted over long ago. Beautiful hardwood floors
were covered up with now well-worn carpet. Vintage Victorian brass lighting was discarded
in favor of functional, but ugly, florescent lighting.
After careful research and restoration work by people who take great pride in their
crafts, you are now invited to step back into time and view the Supreme Court law library as
it looked when the building was open. While most of my tasks are important and interesting,
very few qualify as "fun." This project was "fun," and we take great pride in now having a
fully functioning Supreme Court law library that also carefully preserves the past. You are
invited to visit it during our normal business hours.
When I was growing up in the 1950's in this state, it clearly was a simpler time. Most houses had front porches. In the evenings in good weather one would sit on the porch and visit with people who happened to stroll by. Everyone knew everyone else so this was a way of communicating face-to-face rather than by smart phones. It was a way to maintain cordial relationships with the neighbors. Gone are most front porches. They have been replaced
with backyard decks with "privacy fences" around them. While I have no complaint with a
person seeking privacy, some of the concern one neighbor once had for another has been
lost. Hopefully the programs I have reviewed today will help fill that void. As Mark Twain
once observed, "20 years from now you will be more disappointed by the things you didn't
do than the ones you did do."
With technology, attention spans seem to be getting shorter. We should not pass by on
the other side of the road like the priest and the Levite in the parable of the Good Samaritan.
The most important part of a person's life is the impact it has on others.
This completes my report to you. I would like to avoid the observation of a church member
who once told my Father about another minister, "His sermon was too long. He had seven
good chances to quit and missed them all."