The prayer was offered by the Chaplain, Fr. Joe Holzhauser, followed by the
Pledge of Allegiance led by Senate page Bethany Lange.
Roll Call: All members present.
MR. PRESIDENT:
The Committee on Legislative Procedure respectfully reports that the Secretary of the
Senate has had under consideration the Senate Journal of the fourth 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 Honorable Matt Michels
President of the Senate
500 E. Prospect
Pierre, SD 57501
Dear President and Members of the Senate:
Pursuant to the provisions of Chapter 24-13 of the South Dakota Codified Laws and
subject to your consent, I have the honor to inform you that I have reappointed Paige W. Bock
to the South Dakota Board of Pardons and Parole.
Enclosed is a copy of the following:
1. The Statement of Financial Interest
2. Senate Confirmation Information
3. Oath
4. The October 30, 2017, letter of appointment
This appointment is effectively January 16, 2018, and will expire January 17, 2022.
Thank you.
The Committee on Agriculture and Natural Resources respectfully reports that it has had
under consideration SB 26 and returns the same with the recommendation that said bill do pass.
The Committee on Agriculture and Natural Resources respectfully reports that it has had
under consideration SB 39 and returns the same with the recommendation that said bill do pass
and be placed on the consent calendar.
The Committee on Education respectfully reports that it has had under consideration SB 18
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 Education respectfully reports that it has had under consideration SB 66
and returns the same with the recommendation that said bill be amended as follows:
" Section 2. That chapter 13-7 be amended by adding a NEW SECTION to read:
The Committee on Judiciary respectfully reports that it has had under consideration the
nomination of Kenneth D. Albers of Lincoln County, Canton, South Dakota, to the Board of
Pardons and Paroles and returns the same with the recommendation that the Senate advise and
consent to the confirmation of said reappointment, and that said reappointment be placed on the
consent calendar.
Also MR. PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration the
nomination of Krista Heeren-Graber, to the SD Interstate Compact for Adult Offender
Supervision and returns the same with the recommendation that the Senate advise and consent
to the confirmation of said reappointment, and that said reappointment be placed on the consent
calendar.
Also MR. PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration the
interim nomination of Shannon Riter-Osborn of Rapid City, South Dakota, to the Board of
Pardons and Paroles and returns the same with the recommendation that the Senate advise and
consent to the confirmation of said interim appointment, and that said appointment be placed
on the consent calendar.
The Committee on Judiciary respectfully reports that it has had under consideration the
nomination of Shannon Riter-Osborn of Rapid City, South Dakota, to the Board of Pardons and
Paroles and returns the same with the recommendation that the Senate advise and consent to the
confirmation of said reappointment, and that said reappointment be placed on the consent
calendar.
There being no objection, the Senate reverted to Order of Business No. 6.
Your Joint-Select Committee on Joint Rules respectfully reports that it has had under
consideration the joint rules and recommends that the temporary joint rules adopted by the
Ninety-third Legislative Session be adopted as the permanent joint rules of the Ninety-third
Legislative Session with the following changes:
Amend Chapter 1 of the Joint Rules as follows:
1-8. Signing of documents by presiding officer. The presiding officer of each house shall
sign all concurrent resolutions and commemorations and that are approved by the
Legislature. The president pro tempore and the speaker shall sign all writs, warrants, and
subpoenas issued by the house over which the officer presides.
1-10. Dissent against an act or resolution. Any two members of a house may dissent or
protest in respectful language against any act or resolution which they think injurious to the
public or to any individual. and have the The reason for their dissent or protest shall be
presented to the house and entered upon the subsequent legislative day's journal. However,
if an objection is made any member objects prior to adjournment on the subsequent
legislative day that the language of the dissent or protest is not respectful, and a majority of
the house agrees, the house may refer the dissent or protest back to the dissenting or
protesting members for emendation. Members submitting a dissenting report shall be given
one opportunity for emendation, which shall be completed within one week of the request
for emendation.
Amend Chapter 1A of the Joint Rules as follows:
1A-4. Sexual harassment prohibited. All members are responsible for ensuring that the
workplace is free from sexual harassment. All members shall avoid any action or conduct
which could be viewed as sexual harassment. A member shall report any sexual harassment
complaint to the presiding officer of the house to which the member belongs. If the situation
is not resolved, the member shall forward the complaint to the Executive Board of the
Legislative Research Council.
Amend Chapter 1B of the Joint Rules as follows:
1B-3.2. Sexual harassment prohibited. All members are responsible for ensuring that the
workplace is free from sexual harassment. All members shall avoid any action or conduct
that could be viewed as sexual harassment. A member shall report any sexual harassment
complaint to the president pro tempore or the speaker according to which house the member
belongs. If the situation is not resolved, the member shall forward the complaint to the
Executive Board of the Legislative Research Council.
1B-4. Action in event of violation. Failure to observe the highest standards of public
conduct will subject a legislator to appropriate action, pursuant to the rules of the Chamber
and Mason's Manual of Legislative Procedure respective house.
Amend Chapter 2 of the Joint Rules as follows:
2-1. Those permitted on the floor during session. In addition to current legislators, only
the following persons are entitled to the floor of the House of Representatives or Senate
during sessions: justices of the Supreme Court or persons who are or have been Governor,
Lieutenant Governor, or members of the Congress of the United States from South Dakota;
former members of the South Dakota Legislature, except those currently serving in any
elective state or local office other than Governor or Lieutenant Governor; current legislative
employees; and news reporters; and former members of the South Dakota Legislature,
except those who are registered lobbyists or those currently serving in any elective state or
local office other than Governor or Lieutenant Governor. However, these persons may not
be on the floor if acting in a manner to influence legislation. No other person may be
admitted to the floor without consent of the presiding officer.
Amend Chapter 5 of the Joint Rules as follows:
5-3. Priority of motions. When a question is under debate, no motion may be made except
the following motions which have precedence in the order listed:
I 1. To adjourn; (nondebatable)
II 2. To recess;
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. A
member may not call for the division of a bill.
5-15. Order of questions motions. All questions, other than privileged questions motions
as listed in Joint Rule 5-3, shall be put in the order they are moved.
Amend Chapter 6C of the Joint Rules as follows:
6C-1. Bills and resolutions that require fiscal notes. A bill, amendment, or resolution that
has an effect on the revenues, expenditures, or fiscal liability of the state or any political
subdivision of the state may include a fiscal note incorporating an estimate of the effect.
This rule does not apply to the cost of legislative processing, or any appropriation bill with
specific dollar amounts. A fiscal note is an estimate of the fiscal implications relating to
revenues, expenditures or debt, and the probable cost of the bill, amendment, or resolution.
In preparing the fiscal note, the Director of the Legislative Research Council may use
information or data supplied by any person, agency, organization, or governmental unit that
the director deems reliable. The director shall state the sources of the information or data
used and may state the extent to which the director relied on the information or data in
preparing the fiscal note. If the director is unable to acquire or develop sufficient
information or data to prepare a fiscal note, the director may prepare the fiscal note stating
that fact, and the fiscal note shall be deemed to comply with this rule. If the director
determines that the fiscal impact of a bill, amendment, or resolution cannot be determined,
the director may prepare the fiscal note stating that fact, and the fiscal note shall be deemed
to comply with this rule.
This rule does not apply to prison or jail population cost estimates required by §§ 2-1-19 and
2-1-20 2-9-33 and 2-9-34.
6C-1.3. Prison or jail population cost estimates. A prison or jail population cost estimate
may be requested pursuant to Joint Rule 6C-1.1 for any bill or amendment with a Class 1
misdemeanor penalty that may impact the state prison or county jail population. The cost
estimate shall be prepared pursuant to §§ 2-1-19 and 2-1-20 2-9-33 and 2-9-34.
7-1.8. Final disposition. Final disposition is any action which moves a bill out of a
committee to the floor of a house or to another committee or which removes it from further
consideration by the committee. Examples of final disposition include "Do Pass,"
"Do Pass, Amended," "Refer to Another Committee," "Lay on the Table," and "Defer to a
Day Certain Beyond the End of the Session the 41st Day."
7-4. Dissenting reports. If the members of a committee cannot agree on its report, the
majority and minority may each make a report. Any member dissenting in whole or in part
from the reasoning and conclusions of both majority and minority may also present a
statement of the member's reasoning and conclusions. All reports must shall be entered in
the journal if found by the presiding officer to be decorous in language and respectful to the
house and shall be entered in the journal.
7-16. Motions. When a question is under debate, no motion may be made except the
following motions:
(1) Adjourn; (nondebatable)
(2) Recess;
(3) Call the previous question; (nondebatable)
(4) Lay on the table; (nondebatable)
(5) Defer to a day certain beyond the end of the session; the 41st day;
(6) Do pass;
(7) Do pass, amended;
(8) Do not pass;
(9) Do not pass, amended;
(9) (10) Without recommendation;
(11) Without recommendation, amended;
(10) (12) Defer to a day certain;
(11) (13) Refer to another committee;
(14) Refer to another committee, amended
(12) (15) Amend;
(16) Approve or amend minutes; and
(13) (17) Appoint a subcommittee.
7-27. Division of the question. Any member may call for a division of the question. The
chair shall divide the question if it contains questions so distinct that, one being taken away,
the rest may stand as a separate proposition. A member may not call for the division of a
bill.
7-28. Committee procedure - Remote electronic testimony. During any regular or special
session of the Legislature, a committee chair may, upon the unanimous consent of the
members present, permit a person to appear from a remote site and give testimony before
the committee by electronic audio/video audio or video means.
Amend Chapter 12 of the Joint Rules as follows:
Amend Chapter 15 of the Joint Rules as follows:
15-3. Notification of bill or resolution deferred to 36th or the 41st day. If the
consideration of any bill or joint resolution which originated in one house shall be
postponed in the other house to a day so distant that it will not be taken up again by the
present session, the house of origin shall be immediately notified of such action.
The joint rules and the rules of the Senate and House shall be printed in the
House Journal.
Respectfully submitted, Respectfully submitted,
G. Mark Mickelson Brock Greenfield
Lee Qualm R. Blake Curd
Spencer Hawley Jason E. Frerichs
House Committee Senate Committee
SCR 1 Introduced by: Senators Bolin, Frerichs, Heinert, Kennedy, Killer, Kolbeck,
Nelson, Nesiba, Netherton, Russell, Sutton, and Wiik and Representatives Holmes, Ahlers,
Brunner, Campbell, Clark, Glanzer, Hawley, Heinemann, Jamison, Jensen (Kevin),
Latterell, Lust, McCleerey, Ring, Schoenfish, Smith, Wiese, Willadsen, Wismer, and
Zikmund
Was read the first time, the President Pro Tempore waived the referral to committee,
and placed SCR 1 on the calendar of Wednesday, January 17th, the sixth legislative day.
SB 72 Introduced by: Senators Novstrup, Frerichs, and Klumb and Representatives
Kaiser, Bartels, Campbell, Chase, Dennert, Holmes, Johnson, Lake, McCleerey, Schaefer,
Wismer, and Zikmund
FOR AN ACT ENTITLED, An Act to revise certain provisions regarding historical
license plates for motor vehicles.
Was read the first time and referred to the Committee on Transportation.
SB 73 Introduced by: Senators Stalzer, Bolin, Frerichs, Otten (Ernie), Russell, and
Solano and Representatives Johnson, Chase, Clark, Duvall, Goodwin, Lesmeister, May, and
Schaefer
FOR AN ACT ENTITLED, An Act to authorize a vehicle dealer to lease space in the
common area of a shopping mall for displaying new vehicles.
Was read the first time and referred to the Committee on Commerce and Energy.
SB 74 Introduced by: Senators Klumb, Bolin, Curd, Ewing, Frerichs,
Greenfield (Brock), Jensen (Phil), Kolbeck, Langer, Monroe, Netherton, Rusch, Solano,
Stalzer, Tidemann, Wiik, and Youngberg and Representatives Schoenfish, Ahlers, Carson,
Haugaard, Holmes, Howard, Kaiser, Latterell, Mickelson, Qualm, Rhoden, and Steinhauer
FOR AN ACT ENTITLED, An Act to create an exception to the minimum difference
in age between adoptive parent and child.
Was read the first time and referred to the Committee on Judiciary.
FOR AN ACT ENTITLED, An Act to establish certain provisions regarding the
dispensing of biological products.
Was read the first time and referred to the Committee on Health and Human Services.
SB 76 Introduced by: Senators Heinert, Frerichs, Greenfield (Brock), Kennedy, Killer,
Langer, Maher, Nelson, and Nesiba and Representatives Ahlers, Bordeaux, Dennert,
Hawley, Lesmeister, McCleerey, and Smith
FOR AN ACT ENTITLED, An Act to authorize the use of tribal identification cards
for the purpose of voter registration.
Was read the first time and referred to the Committee on State Affairs.
SB 77 Introduced by: Senators Nesiba, Bolin, Frerichs, Heinert, Kennedy, Killer, and
Otten (Ernie) and Representatives Reed, Ahlers, Campbell, McCleerey, Peterson (Kent),
Willadsen, and Wismer
FOR AN ACT ENTITLED, An Act to revise certain provisions regarding required
campaign finance disclosure statements submitted by ballot question committees.
Was read the first time and referred to the Committee on State Affairs.
SB 78 Introduced by: Senators Bolin, Klumb, Monroe, Solano, and Stalzer and
Representatives Peterson (Sue), Barthel, Beal, Bordeaux, Brunner, Campbell, Clark,
Holmes, Jensen (Kevin), Latterell, Rasmussen, Smith, Steinhauer, Stevens, Wiese,
Willadsen, and Zikmund
FOR AN ACT ENTITLED, An Act to revise the membership of the Board of
Education Standards to include the chairs of the Senate and House committees on education.
Was read the first time and referred to the Committee on Education.
SB 14: FOR AN ACT ENTITLED, An Act to revise certain references to the special
highway fund in provisions regarding motor vehicle license fees distribution.
Was read the second time.
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 15: FOR AN ACT ENTITLED, An Act to revise the composition of the state trunk
highway system.
Was read the second time.
The question being "Shall SB 15 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 16: FOR AN ACT ENTITLED, An Act to repeal certain curb ramp construction
specifications for municipalities.
Was read the second time.
The question being "Shall SB 16 pass?"
And the roll being called:
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 22: FOR AN ACT ENTITLED, An Act to allow commercial driver license
applicants three attempts to pass the commercial driver license examination.
Was read the second time.
The question being "Shall SB 22 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 43: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the
regulation of limited gaming in Deadwood, South Dakota.
Was read the second time.
The question being "Shall SB 43 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 57: FOR AN ACT ENTITLED, An Act to revise certain references regarding the
contractor's excise tax.
Was read the second time.
The question being "Shall SB 57 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 21: FOR AN ACT ENTITLED, An Act to update references to certain federal
motor carrier regulations.
Was read the second time.
The question being "Shall SB 21 pass?"
And the roll being called:
Yeas 29, Nays 6, Excused 0, Absent 0
Nays:
Greenfield (Brock); Jensen (Phil); Monroe; Nelson; Partridge; 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.
SB 44: FOR AN ACT ENTITLED, An Act to establish a license for certain gaming
equipment manufacturers and distributors and to establish a license fee.
Was read the second time.
The question being "Shall SB 44 pass?"
And the roll being called:
Yeas 28, Nays 7, Excused 0, Absent 0
Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert;
Kennedy; Killer; Kolbeck; Langer; Maher; Monroe; Nesiba; Novstrup; Otten (Ernie);
Peters; Rusch; Soholt; Solano; Stalzer; Sutton; Tidemann; White; Wiik; Youngberg
Nays:
Jensen (Phil); Klumb; Nelson; Netherton; Partridge; Russell; Tapio
So the bill having received an affirmative vote of a two-thirds majority of the
members-elect, the President declared the bill passed and the title was agreed to.
Sen. Novstrup moved that the Senate do now adjourn, which motion prevailed and at
2:33 p.m. the Senate adjourned.
Public support for our three branches of government depends on public education.
Sadly only 38% of Americans in 2011 could name all three branches of government. That
number declined to 26% today. Thirty-one percent could not even name a single branch of
government.
One frequently hears the phrase "the new normal." This phrase does not describe the
programs and challenges undertaken by the UJS. Because events and conditions frequently
change, very little remains "new" and our current situation is not "normal." Perhaps a more
fitting slogan is the Boy Scouts' time-honored motto: "Be Prepared."
We must not be overwhelmed by the increasing pace of change. We must always keep
our eye on our constitutional tasks. As Warren Buffett noted: "Someone is sitting in the
shade today because someone planted a tree a long time ago."
When a case is appealed to us the circuit court proceedings are completed. We do not retry the case; we simply review the evidence and legal claims that were made in circuit
court. We only answer issues that are brought to us on appeal and that were originally
presented to the circuit court. We do not expand the scope of the case beyond that.
No matter how complex the issues are on appeal we are simply trying to answer two
basic questions. The first is whether a mistake was made during the circuit court
proceedings. If not, we affirm. If a mistake was made we decide a second question. Was
that mistake so serious that it affected the fairness or the outcome of the trial? If not,
we still affirm. Under our judicial system, you are entitled to a fair trial, not a perfect one.
If a case is reversed because the mistake did affect the fairness or the outcome of the
trial, a general perception is that our decision makes the loser the winner and the winner the
loser. In most cases where we reverse a decision, however, the case is sent back to the
circuit court for retrial without the mistake. Thus, a fair trial is ultimately held.
We make decisions by majority rule. Since there are five Justices on the
Supreme Court, three must agree on the resolution of a case for that to become the opinion
of the Court. Should a Justice feel it necessary to not participate in an individual case,
I appoint a circuit judge or a retired Justice to sit on that case. This avoids the chance for a
tie and majority rule is preserved.
We are bound by the strict rules of the appellate process. The Court must follow the
laws passed by this Legislature and Congress. We do not write laws; we only interpret what
they mean. We are also bound by United States Supreme Court decisions on matters of
federal law and the interpretation of the United States Constitution. If there is a prior
decision by the South Dakota Supreme Court on the issue before us, in most instances we
follow that decision.
We do not decide cases based on our personal preferences. If we did so, we would
become a Court of subjective opinions. Under our Constitution that is not acceptable. The
South Dakota Supreme Court is an appellate court that decides the cases based on the facts
of the case and our interpretation of the law. A critic of a United States Supreme Court
decision 175 years ago noted: "Judicial tyranny is hard enough to resist under any
circumstances for it comes in the guise of impartiality and with the prestige of fairness."
We strive to avoid that. Our judicial system provides continuity and fairness in the appeal
process.
The task of helping our drug and alcohol program participants succeed has become literally a matter of life or death. For the second year in a row, we lost a program participant to a drug overdose. It is a bitter fact that while we will succeed with a good majority of our
program participants, we will not succeed with all of them. In past years the consequences
of the failure of a program participant were continued addiction and a trip to the
penitentiary. With the introduction of these more powerful and lethal illegal drugs, the
consequences are deadlier.
Nationally, the drug epidemic is at a crisis level. Opioid addiction is overwhelming the
public health, child welfare, and justice systems of many states. For example Montgomery
County, Ohio which includes the city of Dayton experienced 371 deaths in 2016 due to
opioid abuse. This year, Montgomery County is on target to exceed 800 deaths.
Nationwide, 175 Americans die each day from this curse.
While South Dakota's fatalities are much lower in number, they still more than doubled
between 2007 to 2015. The statistics for opioid abuse are somewhat surprising to me. This
is not exclusively a youthful addiction. The South Dakota Department of Health reports that
a majority of people addicted to opioids are between 40 and 64 years old. The second
highest bracket of addiction is the 25-39 age group. Eighty percent of the cases involve
Caucasians and 57% are women.
When we started the drug court pilot program in 2008 we never dreamed that the
evolution of society would present us with such monumental problems. We certainly had a
drug problem in those days, but we considered it "manageable." Now it is everywhere and
despite our best efforts we once again are playing "catch-up." As President
Franklin D. Roosevelt observed: "There are many ways of going forward, but only one way
of standing still."
We have a statewide network of drug courts and alcohol courts. Wanting something to
work and having it actually work are separate concepts. Our programs are actually working
because of the dedicated people who make up the treatment teams for each court. The
programs actually work because of the training and dedication that each team member is
willing to undertake.
In FY 2015 we served 314 participants. In two years that number significantly
increased. In FY 2017 we served 462 participants. Ninety-six participants have graduated
from our programs. What is their future upon graduation? Eighty-two percent of the
graduates do not reoffend. That is higher than the national average of 75%. It is
substantially higher than the rate for people paroled from the penitentiary. That is around
40%.
I never tire of attending drug and alcohol court graduations. The compelling life story
each graduate has is an example of what can ultimately go right in this society.
One graduate said, "I have a completely different work ethic. I show up on time and make
sure the job task is done right. I don't just hurry through it to get it done." In these
programs we stress and require employment, but this statement by a graduate summarizes
what it means. In South Dakota our unemployment rate is low enough that most
participants can get a job. To keep a job and recognize the importance of a work ethic _
that is change.
This work ethic is directly tied to earning capacity. Between January 1, 2017 and
June 30, 2017, the 462 participants earned $1,537,405 in wages. That calculates to an
annual figure of $3,074,810 to support them and their families. That is a far cry from
spending in the neighborhood of $25,000 per year of taxpayers' dollars to house each of
these 462 participants in the penitentiary.
The cost savings do not end there. Our drug and alcohol court participants are parents
of 1219 children, who, if their parents were in the penitentiary instead of our programs,
would be the wards of Department of Social Services at $10,000 per-year, per-child. That
number is up from 707 children last year. Thus, this past year, we saved taxpayers
$12,190,000 in child support costs alone.
Another cost saving from these diversion programs is in health care. The Avera Health
System estimates that South Dakota hospitals annually treat 3980 people in emergency
rooms due to drug overdoses and their complications. Since virtually none of these people
have insurance or the ability to pay for the emergency medical services, it annually costs
County Poor Relief, Medicaid, and the Department of Corrections about $2,790,000. An
additional $3,580,000 is never paid by or on behalf of the drug-addicted patient so the cost
is ultimately passed back to the other paying customers. In a perfect world, the hospitals
would rather focus on other necessary medical needs of patients. Other worthwhile uses for
this $6,370,000 abound.
A circuit judge who has been active in these programs since the beginning defined the
difference between drug addicts and alcoholics. Although alcoholics are addicted to
alcohol, they generally maintain a home and 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. This is a crucial point in the ability of the UJS to deal with drug addicts in
the drug court program. Currently our program is only out-patient. To get into the drug
court program a drug addict must have a home and a job. Sadly, the worst of the worst have
neither. We cannot expect those with these addictions to work full time and move
successfully through the drug court program if they are living under a bridge or in a
cardboard box. The reality is that they go to the penitentiary because we cannot take them
into our programs. I think it is time to develop a concept that will incorporate an in-patient
component into our program. It makes little sense to treat the addicted who have a home
and, like the priest and the Levite in the parable of the Good Samaritan, pass by on the other
side of the road and ignore the person laying in the ditch. As former Chief Justice
Warren Burger noted, "concepts of justice must have hands and feet."
In administering drug and alcohol courts, the Unified Judicial System has followed
national standards and learned from other states' programs. However, when dealing with
uncontrolled addictions and unanticipated situations, there is a bit of the philosophy of
boxing champion, Mike Tyson: "Everybody has a plan until they get punched in the
mouth."
Judith Meierhenry was the first woman appointed to be a permanent Justice of the Court.
At least half of the population of South Dakota is female. On April 25, 2017, for the
first time, three of the five designated Justices on an individual case were female. Justice
Lori Wilbur, Justice Janine Kern, and Retired Justice Judith Meierhenry sat on a case that
was orally argued before the court. This was a historic day for the Court.
Under the leadership of Presiding Judge Scott Myren we are expanding into additional
counties. This is important. I have yet to talk to a rural sheriff who is not facing an
increasing amount of drug traffic in his or her county.
Addiction is an evil that plays no favorites. It is an equal opportunity disease that
affects persons of all ages, sexes, and races. Several of our HOPE programs are in counties
that border reservations. They have achieved impressive results with both Native American
and non-Native American clients in Charles Mix, Walworth, and Tripp counties.
Part of the program's success is due to the active participation from the Veterans
Administration in Sioux Falls. A VA employee sits on the team that oversees the program.
There is a great need for a Veterans Court in the Rapid City area. We currently have
98 veterans on felony probation there. To see if a Veterans Court would work in that area
we started a diversion program called a Veterans Protocol that can supervise eight veterans
under a specially trained court services officer. It works well. If funding were available we
could rapidly expand the Veterans Protocol into a Veterans Court serving a significant
number of those 98 veterans. President Abraham Lincoln commented: "You cannot escape
the responsibility of tomorrow by evading it today."
those who come into the system with an underlying issue of mental illness. By broadening
the definition of those mental health professionals who can do competency evaluations, the
logjam of people sitting in jail waiting for an evaluation before entering a plea will be
significantly lessened or hopefully go away completely. It also will reduce costs of
incarceration to taxpayers who ultimately pay for the county jails and their staffing.
Speeding up the system of justice benefits all involved. Since South Dakota ranks second
from the bottom in the nation in the mental health professional provider to population ratio,
we have to maximize the wise use of what resources we have.
The proposed pilot project for a mental health court in Pennington County did not pass
last year. While it was not viewed as unnecessary or ill-advised, the dollars were simply not
there to fund it. Hopefully funding will be available in the near future to undertake this
project. In other states, these types of programs have proved highly successful and save
significant taxpayer dollars. It has certain common elements with our drug court and
alcohol court programs. All three seek to deal with the root problem that got the individual
into the criminal justice system in the first place. We need to ask, "What happened to you?"
and not "What's wrong with you?"
Each year I host a one-day seminar for all the program participants. In visiting with
them it appears they are satisfied with their decision to locate to a rural setting.
Last year this Legislature expanded this program by authorizing the placement of
attorneys in smaller municipalities. Municipalities with a population under 3500 are eligible
to participate. This expansion went into effect July 1, 2017 and we are in the process of
informing municipalities of the opportunities and benefits of the Rural Attorney Program.
in South Dakota than in penitentiaries, the county jails, and the drug and alcohol programs
combined.
While penitentiary, county jail, and other alternative sentencing programs' populations
have substantially risen, the increase in the number of people on felony probation is
measured in the 1000s:
FISCAL YEAR CASES OF ADULT
ENDING FELONY PROBATIONERS
FY 2011 5130
FY 2012 5149
FY 2013 5892
FY 2014 6893
FY 2015 8006
FY 2016 8634
FY 2017 9078
It is fair to ask what happens to these probationers. Last year 84% remained in the
program and 1862 people were successfully discharged. Of equal importance is the
performance of these probationers once they are discharged. In FY 2017, 83% did not
reoffend in the three-year period following their discharge. Thus, the system does not see
them again.
As with every state program, cost is a significant consideration. If the 9078 cases
committed by felons in FY 2017 were placed in the penitentiary or alternative sentencing
programs those institutions and programs would be overwhelmed. The state could not
afford the increased cost. Yet, if those 9078 cases committed by felons continue on
probation, they are supervised for a cost of $3 per-day, per-probationer. This is a taxpayer's
bargain.
Not everyone qualifies for probation nor should they. 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.
I do not have a single magic solution. The Supreme Court is willing to review the situation with other key players in the process such as the law school, the law school faculty, the State Bar, and the law students. Our ultimate goal is to provide a quality lawyer who
can practice law either in South Dakota or elsewhere and provide professional legal services
to his or her clients.
The South Dakota Board of Bar Examiners has remained stable in its membership.
Several board members remain from the "glory days" of the 90% passage rates. Their
approach to grading the bar exam has not changed. All of our neighboring states have also
experienced a drop in passage rates. To me, that shows the South Dakota Bar Examiners are
continuing to function as gatekeepers, allowing only those who pass the rigorous exam to
exercise the power granted to attorneys. Were South Dakota to remain in the highest
category of passage when all the neighboring states experienced a significant decline in
passing rates, it would likely signal that the bar exam in this state was not fulfilling its
intended function -- the protection of the public by only allowing those who are
academically fit and possess good moral character to assist the public as attorneys. The
Supreme Court ultimately oversees the process and is pleased with the Board's work.
The University of South Dakota established a committee under the chair of
House Speaker Mark Mickelson to study the future of the law school. Monumental changes
in legal education have taken place not only in South Dakota, but around the nation. Rows
of leather bound law books that were the bread and butter of a legal education and a lawyer's
practice are now antiques. Most legal research is now done on-line, on a computer.
I think it is clear that the citizens of South Dakota want and need an in-state law school.
Where it should be located and how it should function are important questions for study and
discussion.
Ultimately the majority of the committee voted to recommend that the law school
remain in Vermillion, create a physical presence and program in Sioux Falls, and increase
revenue for student scholarships and the law school.
Several individuals have asked me if the location of the law school will affect the
success of the Rural Attorney Program. I have been involved with every rural attorney
placement and have spoken to most of those who participate in the program. In my opinion
the Rural Attorney Program will not be negatively or positively affected by the location of
the law school.
that is not struck by the beauty of the restoration and the original beauty of the facility.
These are the last public rooms in the Capitol to be restored and it was certainly well worth
waiting for. I invite you to see the project for yourself. You will be duly impressed. While
it is, in large respect, a return to the 1911 decor, it still is a modern fully-functioning law
library with the latest computer technology for legal research.
She provided major contributions to this Court's case law by the opinions she authored
and participated in deciding. Many were complex.
Justice Wilbur was a driving force in the growth and expansion of drug courts and
alcohol courts. She started the first alcohol court in South Dakota. When I told her that the
UJS had no money to fund it, she simply smiled and went out and found her own funding.
That program continues to thrive today. She also made personal visits to every drug and
alcohol court in South Dakota. If a program was having a few bumps in the road getting
going or was experiencing difficulties, she was always willing to involve herself to improve
the situation.
Justice Wilbur left the UJS a better place than she found it.
His tenure on the bench has earned him respect on a statewide basis. The importance
of his selection is underscored by the fact that since we became a state in 1889, only 50
people have served as Justices on the South Dakota Supreme Court.
We were able to accommodate the departures through the use of retired judges who
agreed to come back as "temp help" where needed. Sitting judges juggled schedules and
some of the retiring judges agreed to stay and finish their cases after their official retirement
date. Thus, we did not experience a backlog of cases.
In the UJS, judicial turnover is to be expected. That is how the current Justices and
judges got their judicial positions. We hate to lose the years of judicial experience, but
we also welcome new blood.
Those of us in the UJS seek to improve the justice system and the services it delivers to
the public. As far as the judicial function in South Dakota, today's message should be
evidence that impartiality does not equate with indifference. There is nothing new with this
concept. Over three thousand years ago the Prophet Isaiah declared, "Maintain justice, and
do what is right."