Senate Judiciary Minutes 2/27/2018 07:45 AM

93^rd Legislative Session _ 2018

Committee: Senate Judiciary

Tuesday, February 27, 2018

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Greenfield (Brock)
P    Kennedy
P    Langer
P    Nelson
P    Netherton
P    Rusch, Vice-Chair
P    Russell, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Senator Lance S. Russell, Chair.

MOTION:    TO APPROVE THE MINUTES OF THURSDAY, FEBRUARY 22, 2018

Moved by:    Langer
Second by:    Netherton
Action:    Prevailed by voice vote.

    HB 1204: revise certain provisions regarding power of attorney.

Presented by:    Senator Partridge (Handout(s): #1)
Proponents:    Tom Simmons, self, Vermillion (telephonic)
        Cory Denevan, self, Sioux Falls
        Erik Nelson, AARP South Dakota
Opponents:    Bruce Danielson, self, Sioux Falls (Handout(s): #2)
        Brett Koenecke, South Dakota Bankers Association
        AJ Franken, Governor's Office

MOTION: DO PASS HB 1204

Moved by:    Rusch
Second by:    Kennedy
Action:    Failed by roll call vote. (3-4-0-0)

Voting Yes:    Kennedy, Langer, Rusch

Voting No:    Greenfield (Brock), Nelson, Netherton, Russell

MOTION:    TO TABLE HB 1204

Moved by:    Nelson
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (5-2-0-0)

Voting Yes:    Greenfield (Brock), Langer, Nelson, Netherton, Russell

Voting No:    Kennedy, Rusch

    HB 1230: provide for the primary enforcement of the law prohibiting certain electronic communications while operating a motor vehicle and to revise the penalty for a violation of that law.

Presented by:    Representative Hawley
        Senator Tidemann
Proponents:    Doug Abraham, Property Casualty Insurers Association of America
        Richard Tieszen, State Farm Insurance
        Drew Duncan, South Dakota Insurance Alliance
        Maynard Konechne, South Dakota Emergency Medical Services Assn.
        Deb Mortenson, Associated General Contractors of South Dakota
        Lori Martinec, SD Police Chiefs' Association
        Jennifer Stalley, South Dakota Nurses Association

MOTION:    DEFER HB 1230 TO THE 41^ST LEGISLATIVE DAY

Moved by:    Langer
Second by:    Netherton
Action:    Prevailed by roll call vote. (5-2-0-0)

Voting Yes:    Greenfield (Brock), Langer, Nelson, Netherton, Russell

Voting No:    Kennedy, Rusch

    HB 1254: revise certain provisions regarding conditional bonds in domestic abuse actions.

Presented by:    Representative Johns
Opponents:    Mark Vargo, Pennington County State's Attorney, self
        Kimberly Zachrison, self, Huron
        Dianna Miller, SD Network Against Family Violence & Sexual Assault
        Paul Bachand, SD States Attorneys Association
        Staci Ackerman, South Dakota Sheriff's Association

MOTION:    DEFER HB 1254 TO THE 41^ST LEGISLATIVE DAY

Moved by:    Greenfield (Brock)
Second by:    Nelson
Action:    Prevailed by roll call vote. (4-3-0-0)

Voting Yes:    Greenfield (Brock), Nelson, Netherton, Russell

Voting No:    Kennedy, Langer, Rusch

    HB 1271: revise certain provisions regarding the carrying of certain guns on certain premises.

Presented by:    Representative Brunner

MOTION:    DO PASS HB 1271

Moved by:    Langer
Second by:    Nelson
Action:    Prevailed by roll call vote. (4-2-1-0)

Voting Yes:    Greenfield (Brock), Langer, Nelson, Russell

Voting No:    Kennedy, Rusch

Excused:    Netherton

    HB 1104: revise certain provisions regarding the arrest of certain victims of domestic abuse.

Presented by:    Representative Kaiser
Proponents:    Dianna Miller, SD Network Against Family Violence & Sexual Assault
        Mark Vargo, Pennington County State's Attorney, self

MOTION: DO PASS HB 1104

Moved by:    Nelson
Second by:    Langer
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    PLACE HB 1104 ON CONSENT CALENDAR

Moved by:    Rusch
Second by:    Nelson
Action:    Prevailed by voice vote.

    HB 1110: increase the penalty for certain subsequent convictions of hiring for sexual activity or promoting prostitution.

Presented by:    Senator Kolbeck
Proponents:    Becky Rasmussen, self, Sioux Falls
        Dawn, self, Brandon
        Ruth, self, Sioux Falls
        Paul Bachand, SD States Attorneys Association
        Charles McGuigan, Office of the Attorney General
        Representative Holmes

MOTION:    DO PASS HB 1110

Moved by:    Netherton
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

    HB 1111: revise certain definitions regarding criminal street gang activity.

Presented by:    Senator Kolbeck
Proponents:    John Gross, self, Sioux Falls (Handout(s): #3, #4)
        Representative Barthel
        Dawn, self, Brandon
        Ruth, self, Sioux Falls
        Becky Rasmussen, self, Sioux Falls
        Charles McGuigan, Office of the Attorney General
        Mandi Mowery, self, Sioux Falls
        Paul Bachand, SD States Attorneys Association

        Lori Martinec, SD Police Chiefs' Association
Opponents:    Dianna Miller, ABATE
        Jiggs Cressy, self, Rapid City

MOTION: AMEND HB 1111

On page 2 of the House engrossed bill, remove the overstrikes from lines 17 and 18.

On page 2, delete lines 19 and 20.

On page 2, line 21, delete everything before ";" .

On page 2, delete lines 22 to 24, inclusive, and insert:

(d) Is identified as a gang member by an informant of previously untested".

On page 3, delete lines 1 and 2.

On page 3, line 5, delete "~~(e)~~(h)" and insert "(e)".

On page 3, line 7, delete "~~(f)~~(i)" and insert "(f)".

On page 3, line 9, delete "~~(g)~~(j)" and insert "(g)".

Moved by:    Greenfield (Brock)
Second by:    Netherton
Action:    Prevailed by voice vote.

MOTION:    DEFER HB 1111 TO THE 41^ST LEGISLATIVE DAY

Moved by:    Kennedy
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (5-2-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Russell

Voting No:    Netherton, Rusch

    HB 1293: increase the penalty for certain assaults committed against firefighters or ambulance service personnel while engaged in the performance of their duties.

Presented by:    Representative Smith
Proponents:    Representative Diedrich
        Maynard Konechne, South Dakota Emergency Medical Services Assn.
        Steve Willard, South Dakota Joint Fire Council

MOTION: AMEND HB 1293

On page 2, after line 2 of the House Judiciary Committee engrossed bill, insert:

The penalties in this section also apply to a simple assault or aggravated assault if committed against any health care facility personnel while the personnel was engaging in patient care.".

Moved by:    Greenfield (Brock)
Second by:    Netherton
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1293 AS AMENDED

Moved by:    Greenfield (Brock)
Second by:    Kennedy
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    AMEND TITLE OF HB 1293

On page 1, line 2, of the House Judiciary Committee engrossed bill, delete "or ambulance service" and insert ", ambulance service, or health care facility".

Moved by:    Greenfield (Brock)
Second by:    Nelson
Action:    Prevailed by voice vote.

MOTION:    PLACE HB 1293 ON CONSENT CALENDAR

Moved by:    Greenfield (Brock)
Second by:    Netherton
Action:    Prevailed by voice vote.

    HB 1139: revise the applicability of adverse possession to certain partition fences.

Presented by:    Representative Marty
Proponents:    Tom Barnett, self, Pierre
        Darla Pollman Rogers, South Dakota Rural Electric Association
Opponents:    Gary Deering, SD Stockgrowers Association

MOTION:    AMEND HB 1139

On page 4, line 16, of the House engrossed bill, delete ", judicial determination, or notice" and insert "or judicial determination".

Moved by:    Greenfield (Brock)
Second by:    Langer
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1139 AS AMENDED

Moved by:    Greenfield (Brock)
Second by:    Nelson
Action:    Prevailed by roll call vote. (5-2-0-0)

Voting Yes:    Greenfield (Brock), Langer, Nelson, Netherton, Russell

Voting No:    Kennedy, Rusch

Senator Russell recessed the committee at 12:30 PM and reconvened it at 4:30 PM.

    HB 1292: revise the process by which courts consider appeals of decisions regarding conditional use requests.

Presented by:    Representative Kettwig
Proponents:    Senator Rusch

        Brett Koenecke, South Dakota Electric Utility Companies
        Brett Koenecke, Avangrid Renewables, LLC
        Drew Duncan, Apex Clear Energy
        Mark Vargo, Pennington County State's Attorney, self
        Lorin Pankratz, South Dakota Association of County Commissioners
Opponents:    Kathy Tyler, self, Big Stone City
        Phil Tau, self, Gayville
        Glenn Mayer, self, Chamberlain
        Robert Wirsing, self, Gregory
        Jim Hendley, self, White Lake
        Rebecca Terk, Dakota Rural Action
        Mark Winegar, South Dakota Sierra Club

MOTION:    DEFER HB 1292 TO THE 41^ST LEGISLATIVE DAY

Moved by:    Nelson
Second by:    Kennedy
Action:    Was not acted on.

MOTION:    SUBSTITUTE MOTION DO PASS HB 1292

Moved by:    Langer
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (4-3-0-0)

Voting Yes:    Greenfield (Brock), Langer, Netherton, Rusch

Voting No:    Kennedy, Nelson, Russell

    HB 1278: revise certain provisions regarding the extradition of fugitives by Indian tribes.

Presented by:    Representative Diedrich
Proponents:    AJ Franken, Governor's Office
        Staci Ackerman, South Dakota Sheriff's Association

MOTION:    DO PASS HB 1278

Moved by:    Rusch
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    PLACE HB 1278 ON CONSENT CALENDAR

Moved by:    Rusch
Second by:    Greenfield (Brock)
Action:    Prevailed by voice vote.

    HB 1280: revise certain provisions regarding the calculation of suspended prison sentences.

Presented by:    Senator Rusch
Proponents:    Laurie Feiler, Department of Corrections

MOTION:    DO PASS HB 1280

Moved by:    Langer
Second by:    Netherton
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    PLACE HB 1280 ON CONSENT CALENDAR

Moved by:    Greenfield (Brock)
Second by:    Langer
Action:    Prevailed by voice vote.

    HB 1053: provide certain earned discharge credits for inmates.

Presented by:    Laurie Feiler, Department of Corrections

MOTION:    AMEND HB 1053

On page 2, after line 1 of the House Judiciary Committee engrossed bill, insert:

" Section 2. That § 24-15A-6 be amended to read:

24-15A-6. The department shall establish the sentence discharge date for each inmate based on the total sentence length, minus court ordered jail time credit. Each inmate shall be under the jurisdiction of the department, either incarcerated or under parole release or a combination, for the entire term of the inmate's total sentence length unless the board grants an early final discharge pursuant to § 24-15A-8, a partial early final discharge pursuant to § 24-15A-8.1, the court modifies

the sentence, the inmate receives earned discharge credits pursuant to § 24-15A-50 or section 1 of this Act, the inmate receives a compliant discharge pursuant to § 16-22-29, or the sentence is commuted. ".

Moved by:    Kennedy
Second by:    Greenfield (Brock)
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1053 AS AMENDED

Moved by:    Kennedy
Second by:    Nelson
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    PLACE HB 1053 ON CONSENT CALENDAR

Moved by:    Langer
Second by:    Netherton
Action:    Prevailed by voice vote.

    HB 1054: revise certain provisions regarding crimes that are considered violent for parole calculation purposes.

Presented by:    Ashley McDonald, Department of Corrections

MOTION:    DO PASS HB 1054

Moved by:    Greenfield (Brock)
Second by:    Langer
Action:    Prevailed by roll call vote. (7-0-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch, Russell

MOTION:    PLACE HB 1054 ON CONSENT CALENDAR

Moved by:    Greenfield (Brock)
Second by:    Langer
Action:    Prevailed by voice vote.

    HB 1083: reduce certain fees for enhanced permits to carry a concealed pistol.

Presented by:    Senator Rusch
Proponents:    Teresa Bray, Office of the Secretary of State
        Staci Ackerman, South Dakota Sheriff's Association
        Representative Rhoden

MOTION: AMEND HB 1083

On page 2, after line 14 of the House State Affairs Committee engrossed bill, insert:

" Section 2. That chapter 23-7 be amended by adding a NEW SECTION to read:

Notwithstanding any other law, the age requirement for the enhanced permit is for twenty-one years of age or older.

Any applicant between eighteen to twenty years of age, inclusive, who meets the requirements of §§ 23-7-53 and 23-7-54 and any other specified requirements and qualifications and upon the approval from the sheriff of the county where the applicant submitted the application shall be issued a temporary restricted enhanced permit that clearly designates the restricted enhanced permit is for individuals eighteen to twenty years of age, inclusive.

Section 3. That chapter 23-7 be amended by adding a NEW SECTION to read:

Any individual between eighteen and twenty years of age, inclusive, holding an enhanced concealed carry permit, issued between July 1, 2015, and the effective date of this Act, shall be issued a new temporary restricted enhanced permit that designates the permit is for individuals eighteen to twenty years of age, inclusive.

Section 4. That chapter 23-7 be amended by adding a NEW SECTION to read:

A person holding an unexpired restricted enhanced permit who has reached the age of twenty-one may submit a written request to the secretary of state for an unrestricted enhanced permit. The unrestricted enhanced permit shall be issued at no additional cost.

Section 5. That chapter 23-7 be amended by adding a NEW SECTION to read:

A person who has been issued a permit to carry a concealed pistol shall maintain current information on the permit by notifying the secretary of state in writing of a change in the person's name due to marriage or court order or of a change in physical address. If the revised address is

located within South Dakota, the secretary of state shall provide a new permit to the person.

The county sheriff may issue a temporary permit or the secretary of state may issue an updated permit that reflects an address outside of South Dakota in the following instances:

(1) For a South Dakota resident who is active duty military personnel, or the spouse of a person who is active duty military, with a home of record in South Dakota; or

(2) For a South Dakota permit holder whose home is physically located in South Dakota but has an official postal address located within in a county in another state that shares a border with South Dakota.

The fee for processing a replacement permit is two dollars and shall be used by the secretary of state to administer the concealed carry program.

Section 6. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.".

Moved by:    Greenfield (Brock)
Second by:    Kennedy
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1083 AS AMENDED

Moved by:    Greenfield (Brock)
Second by:    Rusch
Action:    Prevailed by roll call vote. (6-1-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch

Voting No:    Russell

MOTION:    AMEND TITLE OF HB 1083

On page 1, line 1, of the House State Affairs Committee engrossed bill, delete everything after "Act to" and insert "revise certain provisions regarding permits to carry a concealed pistol and to declare an emergency.".

On page 1, delete line 2.

Moved by:    Greenfield (Brock)
Second by:    Netherton
Action:    Prevailed by voice vote.

    HB 1209: require a National Instant Criminal Background Check for applicants of certain concealed carry permits.

Presented by:    Representative Peterson (Sue)
Proponents:    Staci Ackerman, South Dakota Sheriff's Association

MOTION:    AMEND HB 1209

On page 1, delete lines 7 to 12, inclusive, of the printed bill, and insert "shall be issued pursuant to § 23-7-7.1. ~~Prior to issuing the permit, the sheriff shall execute a~~ For purposes of verifying the qualifications of an applicant, prior to issuing a permit, the sheriff shall execute, and the applicant shall pass, a background investigation, including a criminal history check, of every applicant for the purposes of verifying the qualifications of the applicant pursuant to the requirements of § 23-7-7.1. For the purposes of this section, a background investigation is defined as a computer check of available on-line records a computer check of available on-line records and the National Instant Criminal Background Check.".

On page 2, line 16, delete everything after "(10)" and insert "Is not otherwise prohibited by state law, 18 U.S.C. § 922(g) as amended to October 26, 2005, or 18 U.S.C. § 922(n) as amended to October 26, 2005, from receiving, possessing or transporting a firearm, and passes a National Instant Criminal Background Check.".

On page 2, after line 18, insert:

" Section 3. That § 23-7-8.11 be amended to read:

23-7-8.11. The holder of the regular permit to carry a concealed pistol may renew the permit through the sheriff of the county where the holder resides for a period beginning ninety days before the permit expires. The holder shall pay a ~~ten dollar~~ ten-dollar renewal fee and pass a background investigation, including ~~a criminal history~~ a computer check of available online records and the National Instant Criminal Background Check, ~~pursuant to~~ required under § 23-7-7 prior to the renewal of the permit. The renewal fee shall be distributed as set forth in § 23-7-8.2.

Section 4. That § 23-7-8.12 be amended to read:

23-7-8.12. If a South Dakota resident holds a regular concealed carry permit issued in accordance

with § 23-7-7, and is a member of a state National Guard unit, the Armed Forces of the United States, or the Armed Forces Reserves of the United States, and the holder's permit expires during an active duty military assignment or deployment outside of the holder's state of residence, the holder may request a renewal form application from the Office of the Secretary of State. The ~~Office of the Secretary of State~~ secretary shall prescribe the contents of the application form and any accompanying materials. The application ~~must~~ shall be accompanied by documentation of the deployment, including dates and location of the deployment if available for disclosure; an affidavit signed by the holder's commanding officer or unit commander attesting to the identity of the holder and the fact the holder is unable to return to the state to renew; and a copy of a current, valid, government-issued identification card with a photograph of the holder. The ~~Office of the Secretary of State~~ secretary shall specify the contents of the affidavit. The holder shall mail the application, containing original signatures in ink, to the sheriff in the holder's county of residence. The sheriff ~~will~~ shall conduct the background investigation, including a ~~criminal history~~ computer check of available online records ~~pursuant to~~ and the National Instant Criminal Background Check required under § 23-7-7, within five days of receipt of the military application renewal form. The original signature of the applicant on the renewal form shall serve as the applicant's signature for the temporary permit. ".

Moved by:    Langer
Second by:    Netherton
Action:    Was not acted on.

MOTION:    SUBSTITUTE MOTION AMEND HB 1209

On page 2 of the printed bill, delete line 17.

Moved by:    Greenfield (Brock)
Second by:    Langer
Action:    Prevailed by voice vote.

MOTION: AMEND HB 1209

shall pass, a background investigation, including a criminal history check, of every applicant for the purposes of verifying the qualifications of the applicant pursuant to the requirements of § 23-7-7.1. For the purposes of this section, a background investigation is defined as a computer check of available on-line records a computer check of available on-line records and the National Instant Criminal Background Check.".

On page 2, after line 18, insert:

" Section 3. That § 23-7-8.11 be amended to read:

Section 4. That § 23-7-8.12 be amended to read:

23-7-8.12. If a South Dakota resident holds a regular concealed carry permit issued in accordance with § 23-7-7, and is a member of a state National Guard unit, the Armed Forces of the United States, or the Armed Forces Reserves of the United States, and the holder's permit expires during an active duty military assignment or deployment outside of the holder's state of residence, the holder may request a renewal form application from the Office of the Secretary of State. The ~~Office of the Secretary of State~~ secretary shall prescribe the contents of the application form and any accompanying materials. The application ~~must~~ shall be accompanied by documentation of the deployment, including dates and location of the deployment if available for disclosure; an affidavit signed by the holder's commanding officer or unit commander attesting to the identity of the holder and the fact the holder is unable to return to the state to renew; and a copy of a current, valid, government-issued identification card with a photograph of the holder. The ~~Office of the Secretary of State~~ secretary shall specify the contents of the affidavit. The holder shall mail the application, containing original signatures in ink, to the sheriff in the holder's county of residence. The sheriff ~~will~~ shall conduct the background investigation, including a ~~criminal history~~ computer check of available online records ~~pursuant to~~ and the National Instant Criminal Background Check required under § 23-7-7, within five days of receipt of the military application renewal form. The original signature of the applicant on the renewal form shall serve as the applicant's signature for the temporary permit. ".

Moved by:    Langer
Second by:    Netherton
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1209 AS AMENDED

Moved by:    Nelson
Second by:    Greenfield (Brock)
Action:    Prevailed by roll call vote. (6-1-0-0)

Voting Yes:    Greenfield (Brock), Kennedy, Langer, Nelson, Netherton, Rusch

Voting No:    Russell

MOTION:    AMEND TITLE OF HB 1209

On page 1, line 2, of the printed bill, delete "applicants of".

Moved by:    Greenfield (Brock)
Second by:    Nelson
Action:    Prevailed by voice vote.

MOTION:    ADJOURN

Moved by:    Greenfield (Brock)
Second by:    Nelson
Action:    Prevailed by voice vote. (approximately 6:30 PM)

Rena Ortbahn

____________________________

Committee Secretary

Lance S. Russell, Chair

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