Senate Journal 2/7/2017 02:00 PM

JOURNAL OF THE SENATE

NINETY-SECOND SESSION

EIGHTEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, February 7, 2017

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

The prayer was offered by the Chaplain, Fr. Ron Garry, followed by the Pledge of Allegiance led by Senate pages Shelby Guthrie and Chandler Wilson.

Roll Call: All members present.

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 seventeenth 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,

Brock L. Greenfield, Chair

Which motion prevailed.

COMMUNICATIONS AND PETITIONS

November 2, 2016

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

Dear President and Members of the Senate:

Pursuant to the provisions of Chapter1-16J of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Quentin L. Riggins, of Pennington County, Rapid City, South Dakota to the South Dakota Ellsworth Development Authority.

This appointment is effective immediately, and shall continue until January 18, 2020.

Sincerely,
Dennis Daugaard
Governor

The President announced the referral of the appointment to the Committee on Local Government.

January 6, 2017

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

Dear President and Members of the Senate:

Pursuant to the provisions of Chapter1-45 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have reappointed Scott Herman, Todd County, Mission, South Dakota, to the South Dakota Board of Education.

This appointment is effective immediately, and shall continue until December 31, 2020.

Sincerely,
Dennis Daugaard
Governor

The President announced the referral of the appointment to the Committee on Education.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration SB 123 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 SB 130 and returns the same with the recommendation that said bill be amended as follows:

130ja

On page 1, line 6, of the printed bill, after "trapping license" insert "or snowmobile permit".

130jta

On page 1, line 2, of the printed bill, after "licenses" insert "and permits".

And that as so amended said bill do pass.

Respectfully submitted,
Gary L. Cammack, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 164 and returns the same with the recommendation that said bill be amended as follows:

164wa

On page 2, line 9, of the printed bill, delete "unless the child".

On page 2, line 10, delete "has failed to make a good faith effort to make restitution payments".

On page 3, line 17, delete "unless the child has failed".

On page 3, line 18, delete "to make a good faith effort to make restitution payments".

164wta

On page 1, line 2, of the printed bill, delete everything after "probationers" and insert ".".

On page 1, delete line 3.

And that as so amended said bill do pass.

Respectfully submitted,
Lance S. Russell, Chair

Also MR. PRESIDENT:

The Committee on Commerce and Energy respectfully reports that it has had under consideration SB 75 and 81 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Commerce and Energy respectfully reports that it has had under consideration SB 128 and returns the same with the recommendation that said bill be amended as follows:

128fa

On page 1, line 5, of the printed bill, delete "or wholesaler".

128da

On page 1, line 6, of the printed bill, delete "a charitable organization" and insert "one of the following types of organizations".

On page 1, line 7, before "." insert ":

(1) A civic organization;

(2) A charitable organization;

(3) An educational organization;

(4) A fraternal organization; or

(5) A veterans organization".

128fta

On page 1, line 1, of the printed bill, delete "and".

On page 1, line 2, delete "wholesaler".

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Commerce and Energy respectfully reports that it has had under consideration SB 122 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Phil Jensen, Chair

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 110, 112, and 159 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Jim Bolin, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 4, 30, 31, and 57 were delivered to his Excellency, the Governor, for his approval at 9:45 a.m., February 7, 2017.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 26 and finds the same correctly enrolled.

Respectfully submitted,

Brock L. Greenfield, Chair

MESSAGES FROM THE HOUSE

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1055, 1061, 1077, 1080, 1084, and 1112 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 26 which has passed the House without change.

Respectfully,
Arlene Kvislen, Chief Clerk

MOTIONS AND RESOLUTIONS

SCR 11 Introduced by: Senators Curd, Bolin, Cammack, Cronin, Ewing, Frerichs, Haverly, Jensen (Phil), Klumb, Kolbeck, Monroe, Nelson, Netherton, Novstrup, Partridge, Rusch, Russell, Solano, Stalzer, Tapio, Wiik, and Youngberg and Representatives Heinemann, Beal, Brunner, Campbell, Dennert, DiSanto, Duvall, Frye-Mueller, Glanzer, Goodwin, Greenfield (Lana), Haggar, Haugaard, Holmes, Howard, Hunhoff, Jamison, Johnson, Kettwig, Latterell, Marty, McPherson, Mills, Pischke, Qualm, Rasmussen, Rhoden, Rounds, Schaefer, Steinhauer, Tulson, Willadsen, York, and Zikmund

A CONCURRENT RESOLUTION, Opposing physician-assisted suicide.

WHEREAS, South Dakota has an unqualified interest in the preservation of human life and this state's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this; and

WHEREAS, neither the South Dakota Constitution nor the Constitution of the United States contains a right to assisted suicide, and, thus, no individual has the right to authorize another to kill that individual in violation of federal and state criminal laws; and

WHEREAS, suicide is not a typical reaction to an acute problem or life circumstance, and many individuals who contemplate suicide, including the terminally ill, suffer from treatable mental disorders, most commonly clinical depression, which often goes undiagnosed and untreated by physicians; and

WHEREAS, in Oregon, forty-six percent of patients seeking assisted suicide changed their minds when their physicians intervened and appropriately addressed suicidal ideations by treating their pain, depression, and any other medical problems; and

WHEREAS, palliative care continues to improve and is nearly always successful in relieving pain and allowing a person to die naturally, comfortably, and in a dignified manner without a change in the law; and

WHEREAS, the experiences in Oregon and the Netherlands explicitly demonstrate that palliative care options deteriorate with the legalization of physician-assisted suicide; and

WHEREAS, South Dakota rejects abuses of palliative care through futility care protocols and the use of terminal sedation without life-sustaining care as seen in the Liverpool Care Pathway; and

WHEREAS, a physician's recommendation for assisted suicide relies on the physician's judgment, including any prejudices and negative perceptions that a patient's life is not worth living, ultimately contributing to the use of futility care protocols and euthanasia; and

WHEREAS, South Dakota rejects the sliding-scale approach which claims certain qualities of life are not worthy of equal legal protection; and

WHEREAS, the legalization of assisted suicide sends a message that suicide is a socially acceptable response to aging, terminal illnesses, disabilities, and depression, and subsequently imposes a duty to die; and

WHEREAS, the medical profession as a whole opposes physician-assisted suicide because it is contrary to the medical profession's role as healer and undermines the physician-patient relationship; and

WHEREAS, assisted suicide is significantly less expensive than other care options, and Oregon's experience demonstrates that cost constraints can create financial incentives to limit care and offer assisted suicide; and

WHEREAS, as evidenced in Oregon, the private nature of end-of-life decisions makes it virtually impossible to police a physician's behavior to prevent abuses, making any number of safeguards insufficient; and

WHEREAS, a prohibition on assisted suicide, specifically physician-assisted suicide, is the only way to protect vulnerable citizens from coerced suicide and euthanasia:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Ninety-Second Legislature of the State of South Dakota, the House of Representatives concurring therein, that the Legislature strongly opposes and condemns physician-assisted suicide because the Legislature has an unqualified interest in the preservation of human life, and because anything less than a prohibition leads to foreseeable abuses and eventually to euthanasia by devaluing human life, particularly the lives of the terminally ill, elderly, disabled, and depressed whose lives are of no less value or quality than any other citizen of this state; and

BE IT FURTHER RESOLVED, that the Legislature strongly opposes and condemns physician-assisted suicide even for terminally ill, mentally competent adults because assisted suicide eviscerates efforts to prevent the self-destructive act of suicide and hinders progress in

effective physician interventions including diagnosing and treating depression, managing pain, and providing palliative and hospice care; and

BE IT FURTHER RESOLVED, that the Legislature strongly opposes and condemns physician-assisted suicide because assisted suicide undermines the integrity and ethics of the medical profession, subverts a physician's role as healer, and compromises the physician-patient relationship; and

BE IT FURTHER RESOLVED, that the secretary of the Senate transmit a copy of this resolution to the Governor, the South Dakota Department of Health, the South Dakota Department of Human Services, and the South Dakota State Medical Association.

Was read the first time, the President Pro Tempore waived the referral to committee, and placed SCR 11 on the calendar of Wednesday, February 8^th, the 19^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

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

State Affairs on SB 101 as found on page 308 of the Senate Journal; also

State Affairs on SB 131 as found on page 307 of the Senate Journal; also

State Affairs on SB 93 as found on page 308 of the Senate Journal; also

Local Government on HB 1037 as found on page 304 of the Senate Journal; also

Transportation on SB 118 as found on page 305 of the Senate Journal; also

Transportation on SB 154 as found on page 306 of the Senate Journal be adopted.

Which motion prevailed.

Sen. Killer moved that SB 161 be placed on the calendar of Wednesday, February 8^th, the 19^th legislative day, and be immediately considered pursuant to Joint Rule 6F-6.

And the roll being called:

Yeas 14, Nays 21, Excused 0, Absent 0

Yeas:
Frerichs; Haverly; Heinert; Kennedy; Killer; Maher; Nelson; Nesiba; Netherton; Rusch; Russell; Stalzer; Sutton; Tapio

Nays:
Bolin; Cammack; Cronin; Curd; Ewing; Greenfield (Brock); Jensen (Phil); Klumb; Kolbeck; Langer; Monroe; Novstrup; Otten (Ernie); Partridge; Peters; Soholt; Solano; Tidemann; White; Wiik; Youngberg

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1055: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the need for a driver license or permit to operate certain motor vehicles.

Was read the first time and referred to the Committee on Transportation.

HB 1061: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding consent for correspondence through electronic mail by enrolled customers of portable electronics.

Was read the first time and referred to the Committee on Commerce and Energy.

HB 1077: FOR AN ACT ENTITLED, An Act to provide for the assignment of certain benefits in dental care insurance coverage.

Was read the first time and referred to the Committee on Commerce and Energy.

HB 1080: FOR AN ACT ENTITLED, An Act to adopt the Uniform Fiduciary Access to Digital Assets Act.

Was read the first time and referred to the Committee on Judiciary.

HB 1084: FOR AN ACT ENTITLED, An Act to allow chiropractic corporations operated as sole proprietorships to be operated for a certain time after the death of the chiropractor.

Was read the first time and referred to the Committee on Health and Human Services.

HB 1112: FOR AN ACT ENTITLED, An Act to revise certain provisions related to construction managers on certain public improvement projects.

Was read the first time.

SECOND READING OF CONSENT CALENDAR ITEMS

SB 146: FOR AN ACT ENTITLED, An Act to revise the voting authority of an alderman.

Was read the second time.

The question being “Shall SB 146 pass?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; White; Wiik; Youngberg

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 69: FOR AN ACT ENTITLED, An Act to revise the tax required when a new motor vehicle dealer licenses a new motor vehicle.

Was read the second time.

The question being “Shall SB 69 pass?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 116: FOR AN ACT ENTITLED, An Act to improve online access to information concerning state boards, commissions, and departments.

Was read the second time.

The question being “Shall SB 116 pass as amended?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 1036: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning voter registration and notices of boundary changes for local elections.

Was read the second time.

The question being “Shall HB 1036 pass?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 1057: FOR AN ACT ENTITLED, An Act to revise when improvement districts shall hold an election of board members.

Was read the second time.

The question being “Shall HB 1057 pass?”

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 19: FOR AN ACT ENTITLED, An Act to establish for the Board of Regents and its institutions a fund for the receipt and disbursement of federal grants and contracts and a fund for the receipt and disbursement of other grants and contracts and to make an appropriation therefor.

Was read the second time.

The question being “Shall SB 19 pass as amended?”

And the roll being called:

Yeas 19, Nays 16, Excused 0, Absent 0

Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Greenfield (Brock); Haverly; Klumb; Kolbeck; Langer; Maher; Partridge; Rusch; Soholt; Solano; Tidemann; White; Wiik; Youngberg

Nays:
Frerichs; Heinert; Jensen (Phil); Kennedy; Killer; Monroe; Nelson; Nesiba; Netherton; Novstrup; Otten (Ernie); Peters; Russell; Stalzer; Sutton; Tapio

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

Sen. Peters announced her intention to reconsider the vote by which SB 19 lost.

SB 36: FOR AN ACT ENTITLED, An Act to revise the time to file certain tax returns and remit certain taxes.

Was read the second time.

The question being “Shall SB 36 pass as amended?”

And the roll being called:

Yeas 31, Nays 4, Excused 0, Absent 0

Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Rusch; Soholt; Solano; Stalzer; Sutton; Tidemann; White; Wiik; Youngberg

Nays:
Nelson; Peters; Russell; Tapio

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. Curd moved that SB 77 be deferred to Wednesday, February 8^th, the 19^th legislative day.

Which motion prevailed.

SB 106: FOR AN ACT ENTITLED, An Act to enhance South Dakota.

Was read the second time.

The question being “Shall SB 106 pass?”

And the roll being called:

Yeas 22, Nays 13, Excused 0, Absent 0

Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Haverly; Langer; Maher; Monroe; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Soholt; Solano; Sutton; Tidemann; White; Wiik; Youngberg

Nays:
Frerichs; Greenfield (Brock); Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Nelson; Nesiba; Russell; Stalzer; Tapio

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. Nelson announced his intention to file a letter of dissent pursuant to Joint Rule 1-10.

DISSENT AND PROTEST PASSAGE OF SB 106

Pursuant to Joint Rule 1-10, we, the undersigned Senators, do hereby respectfully dissent and protest the passage of SB 106, "An Act to enhance South Dakota."

The body of SB 106 simply states: "The Legislature shall pursue opportunities to enhance the state." The bill as it passed the Senate has no substantive effect except that it circumvents Chapter 17 of the Joint Rules relating to the deadline for the introduction of bills and Senate Rule 5-1 and Joint Rule 11-1 relating to the suspension of rules, which would have allowed the introduction of a bill after the deadline. Consideration and passage of the bill in this form relinquishes the legislative power and authority of the Senate and cedes such power and authority to the House of Representatives and deprives the people an opportunity to address the actual intent of the bill in a Senate committee hearing.

SB 106 is duly in contravention of South Dakotans' rights under South Dakota Constitutional Article III Section 15 providing for an open legislative process for the people of South Dakota. By hiding the intent of these empty "vehicle bills" and passing them to the House, it denies South Dakotans the open government they are entitled to as a right in South Dakota.

In addition, Article III, Section 21 of the South Dakota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Since the intended effect of SB 106 is not clearly stated and is unknown, the title does not accurately express the purpose or effect of the bill. We believe that the passage of SB 106 does not meet the requirements of Article III, Section 21 of the South Dakota Constitution and contradicts the substantive provisions of Senate Rule 5-1, Joint Rule 11-1, and Chapter 17 of the Joint Rules. For these reasons we believe that the passage of the bill is in contravention of South Dakota's Constitution, is injurious to the rights of the people of South Dakota, besmirches the reputation of the South Dakota Senate, and is therefore null and void.

We respectfully request that this dissent be printed in the Senate Journal as required by Joint Rule 1-10.

Respectfully submitted, Respectfully submitted,
Stace Nelson Lance Russell

Journal amendment: See page 691 of the Senate Journal

In response to dissent and protest see the Attorney General's Official Opinion No. 17-02, as found on page 683 of the Senate Journal.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1040: FOR AN ACT ENTITLED, An Act to license and regulate community living homes.

Was read the second time.

The question being “Shall HB 1040 pass as amended?”

And the roll being called:

Yeas 33, Nays 2, Excused 0, Absent 0

Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; White; Wiik; Youngberg

Nays:
Nelson; Russell

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 26: FOR AN ACT ENTITLED, An Act to revise the state automated victim notification system.

HB 1009: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to accept a donation of land from Pennington County for the use and benefit of the South Dakota School of Mines and Technology.

HB 1011: FOR AN ACT ENTITLED, An Act to repeal certain provisions related to certification of financial good standing of utilities.

HB 1022: FOR AN ACT ENTITLED, An Act to revise and repeal certain provisions relating to education service agencies.

HB 1039: FOR AN ACT ENTITLED, An Act to authorize certain rule making authority for the State Board of Finance.

And signed the same in the presence of the Senate.

Sen. Youngberg moved that the Senate do now adjourn, which motion prevailed and at 3:17 p.m. the Senate adjourned.

Kay Johnson, Secretary