94th Legislative Session _ 2019

Committee: House Judiciary
Friday, February 22, 2019

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Barthel
P    Borglum
P    Diedrich
P    Hammock
P    Latterell
P    Pischke
P    Rasmussen
P    Reimer
P    St John
P    Cwach
P    Pourier
P    Johns, Vice-Chair
P    Hansen, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Representative Hansen.

MOTION:    TO APPROVE THE MINUTES OF FEBRUARY 20, 2019

Moved by:    Johns
Second by:    Diedrich
Action:    Prevailed by voice vote.

    HB 1243: revise provisions regarding hate crimes.

Presented by:    Representative Kelly Sullivan
Proponents:    Bill Wood, self, Sioux Falls
        Dr. Jesse Barondau, self, Mitchell
        Lawrence Novotny, Equality School Association

        Susan Bill, self, Sioux Falls
        Susan Kroger, Leaders Engaged and Determined South Dakota
        Oliver Dickman, self, Yankton
        Roger Tellinghuisen, Human Rights Campaign
Opponents:    Chris Motz, SD Catholic Conference
        Tonchi Weaver, South Dakota Citizens for Liberty
        Norman Woods, Family Heritage Alliance Action
        Cindy Flakoll, Concerned Women for America Legislative Action Committee
        Kathy Rice, Citizens for Academic Transparency

MOTION:    AMEND HB 1243

1243ca

    On the printed bill, delete everything after the enacting clause and insert:

"    Section 1. That § 22-18-1 be amended to read:

    22-18-1. Any person who:

            (1)    Attempts to cause bodily injury to another and has the actual ability to cause the injury;

            (2)    Recklessly causes bodily injury to another;

            (3)    Negligently causes bodily injury to another with a dangerous weapon;

            (4)    By a pattern of repeated conduct, causes physical hurt or psychological distress on one or more persons that may include threats, destruction of property, any threatening use of data or computer software, written or verbal communication, or conduct directed against a person or persons;

            (5)    Attempts by physical menace or credible threat to put another in fear of imminent bodily harm, with or without the actual ability to harm the other person; or

            (5)(6)    Intentionally causes bodily injury to another which does not result in serious bodily injury;

is guilty of simple assault. Simple assault is a Class 1 misdemeanor. However, if the defendant has been convicted of, or entered a plea of guilty to, two or more violations of § 22-18-1, 22-18-1.1, 22-18-26, or 22-18-29 within ten years of committing the current offense, the defendant is guilty of a Class 6 felony for any third or subsequent offense. "

Moved by:    Diedrich
Second by:    St John
Action:    Prevailed by voice vote.

MOTION:    SUBSTITUTE MOTION DEFER HB 1243 TO THE 41ST LEGISLATIVE DAY

Moved by:    Latterell
Second by:    Hammock
Action:    Prevailed by roll call vote. (8-5-0-0)

Voting Yes:    Diedrich, Hammock, Latterell, Pischke, Rasmussen, Reimer, St John, Hansen

Voting No:    Barthel, Borglum, Cwach, Pourier, Johns

    HB 1272: provide for electronic and remote notarization.

Presented by:    Representative Timothy Johns
Proponents:    Matthew McCaulley, South Dakota Land Title Association
        Eric Erickson, South Dakota Association of County Officials

MOTION:    DO PASS HB 1272

Moved by:    Borglum
Second by:    Pourier
Action:    Withdrawn.

MOTION:    AMEND HB 1272

1272wb

    On the printed bill, delete everything after the enacting clause and insert:

"    Section 1. That chapter 18-1 be amended by adding a NEW SECTION to read:

    Terms in this Act mean:

            (1)    "Acknowledgment," a declaration by a person before a notarial officer that the person has signed a document for the purpose stated in the document and, if the document is signed by a representative who is:

            (a)    An authorized officer, agent, partner, trustee, or other representative of a person other than a natural person;
            (b)    A public officer, personal representative, guardian, or other representative in the capacity stated in a document;
            (c)    An attorney-in-fact for a natural person; or
            (d)    An authorized representative of another person in any other capacity, that the representative signed the document with proper authority and signed it as the act of the person identified in the document;

            (2)    "Communication technology," an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other simultaneously by sight and sound;

            (3)    "Notarial act," an act that a notarial officer may perform under the laws of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument;

            (4)    "Notarial officer," a notary public or other person authorized to perform a notarial act;

            (5)    "Verification on oath or affirmation," a declaration, made by a person on oath or affirmation before a notarial officer, that a statement in a document is true.

    Section 2. That chapter 18-1 be amended by adding a NEW SECTION to read:

    A notarial officer in this state, while located in this state, may perform by means of communication technology a notarial act executed on a document by a person who appears before, but is not in the physical presence of the notarial officer if the notarial officer:

            (1)    Has personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed;

            (2)    Affixes the notarial officer's signature to the original tangible document executed by the person;

            (3)    Indicates in the notarial certificate the remote location of the person executing the document;

            (4)    Indicates in the notarial certificate that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of communication technology; and

            (5)    Is able reasonably to confirm that the document before the notarial officer is the same document in which the person made the statement or on which the person executed a

signature.

    Section 3. That § 18-1-3.1 be amended to read:

    18-1-3.1. Each notary public A notarial officer shall have a seal which that shall be used for the purpose of acknowledging documents a document. The seal shall be of a type approved by the secretary of state and shall contain at least the following:

            (1)    The notary's notarial officer's name;
            (2)    The words, South Dakota;
            (3)    The words, notary public; and
            (4)    A border surrounding the imprint.

    In addition, A seal may be a rubber stamp or a physical device capable of affixing to or embossing on a tangible document. A rubber stamp seals seal shall have contain the word, seal.

    If a seal is used by a notary public, the notary public shall write, or print by a device made for such printing, below the seal's imprint or print and if not provided by the form, the words, my commission expires, and shall provide a date therefor A notarial officer shall indicate the date on which the notarial officer's commission expires below the seal under this section.

    Section 4. That § 18-1-7 be amended to read:

    18-1-7. A notary public person who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any other person or party to any a transaction concerning which he the person is exercising any performing the function of his office as such a notary public, may make any certificates certificate, take any acknowledgments acknowledgment, administer any oaths oath, or do any other official acts act as such a notary public with the same legal force and effect as if he the person had no such interest except that he cannot do any of such things in connection with any interest, provided the instrument which shows or document does not show upon its face that he the person is a principal party thereto to the instrument or document.

    Section 5. That § 18-1-11 be amended to read:

    18-1-11. It is a Class 2 misdemeanor for any notary public to affix his A person is guilty of a Class 2 misdemeanor if the person is a notarial officer who affixes the person's official signature to documents when any document when the parties to the transaction memorialized in the document have not appeared before him the person either in-person or in accordance with section 2 of this Act.

    Section 6. That § 18-1-12.1 be amended to read:

    18-1-12.1. It is A person is guilty of a Class 1 misdemeanor for a if the person to act as a notary

public or to affix a signature to a document as a notary public if the person has not first obtained performs a notarial act on any document without first obtaining a commission from the secretary of state pursuant to this chapter under § 18-1-4.

    Section 7. That § 18-4-10 be amended to read:

    18-4-10. The acknowledgment of an instrument performed in the presence of a person making the acknowledgment must not be taken unless the officer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is an officer of the corporation authorized to execute the instrument. "



Moved by:    Barthel
Second by:    Latterell
Action:    Prevailed by voice vote.

MOTION:    AMEND HB 1272

1272wta

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


Moved by:    Johns
Second by:    Borglum
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1272 AS AMENDED

Moved by:    Borglum
Second by:    Pourier
Action:    Prevailed by roll call vote. (12-0-1-0)

Voting Yes:    Barthel, Borglum, Diedrich, Hammock, Latterell, Rasmussen, Reimer, St John, Cwach, Pourier, Johns, Hansen

Excused:    Pischke

MOTION:    PLACE HB 1272 ON CONSENT CALENDAR
Moved by:    Borglum
Second by:    Hammock
Action:    Prevailed by voice vote.

MOTION:    AMEND HB 1193

1193wb

    On the previously adopted amendment (1193wa), in the last paragraph, after "." insert "A charge brought under this section may be commenced at any time prior to the time the victim attains age twenty-five or within seven years of the commission of the crime, whichever is longer.


Moved by:    Diedrich
Second by:    Latterell
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1193 AS AMENDED

Moved by:    Diedrich
Second by:    Borglum
Action:    Prevailed by roll call vote. (11-1-1-0)

Voting Yes:    Barthel, Borglum, Diedrich, Hammock, Latterell, Rasmussen, Reimer, St John, Pourier, Johns, Hansen

Voting No:    Cwach

Excused:    Pischke

    HB 1130: revise and enhance provisions regarding certain misdemeanors.

Presented by:    Representative Steven Haugaard
Opponents:    Paul E. Bachand, South Dakota State's Attorneys Association
        Rick Miller, Department of Public Safety

MOTION:    AMEND HB 1130

1130wb

    On the previously adopted amendment (1130wa), in Section 1, delete "and shall be equal to and distributed in the same manner as a Class 2 misdemeanor" and insert "Notwithstanding §§ 23-1A-22

and 23-1A-23, the amount of a penalty imposed under this section shall be equal to a Class 2 misdemeanor under § 22-6-2 and shall be distributed in accordance with § 23-3-52".


    On the previously adopted amendment (1130wa), in Section 2, delete "and shall be equal to and distributed in the same manner as a Class 2 misdemeanor" and insert "Notwithstanding §§ 23-1A-22 and 23-1A-23, the amount of a penalty imposed under this section shall be equal to a Class 2 misdemeanor under § 22-6-2 and shall be distributed in accordance with § 23-3-52".

    On the previously adopted amendment (1130wa), in Section 3, delete "and shall be equal to and distributed in the same manner as a Class 2 misdemeanor" and insert "Notwithstanding §§ 23-1A-22 and 23-1A-23, the amount of a penalty imposed under this section shall be equal to a Class 2 misdemeanor under § 22-6-2 and shall be distributed in accordance with § 23-3-52".


Moved by:    Reimer
Second by:    Hammock
Action:    Prevailed by voice vote.

MOTION:    DEFER HB 1130 TO THE 41ST LEGISLATIVE DAY

Moved by:    Barthel
Second by:    Johns
Action:    Failed by roll call vote. (5-7-1-0)

Voting Yes:    Barthel, Borglum, Diedrich, Cwach, Johns

Voting No:    Hammock, Latterell, Rasmussen, Reimer, St John, Pourier, Hansen

Excused:    Pischke

MOTION:    DO PASS HB 1130 AS AMENDED

Moved by:    Latterell
Second by:    Rasmussen
Action:    Prevailed by roll call vote. (7-5-1-0)

Voting Yes:    Hammock, Latterell, Rasmussen, Reimer, St John, Pourier, Hansen

Voting No:    Barthel, Borglum, Diedrich, Cwach, Johns

Excused:    Pischke
    HB 1132: revise and enhance provisions regarding emergency involuntary commitment.

Presented by:    Representative Steven Haugaard
Opponents:    Roger Tellinghuisen, South Dakota Association of County Commissioners
        Jim Iosty, self, Sioux Falls
        Craig Dewey, Minnehaha County Commission

MOTION:    AMEND HB 1132

1132wb

    On the previously adopted amendment (1131wa) delete Section 10. and insert:

"    Section 10. That § 34-20A-81 be amended to read:

    34-20A-81. Any person committed under § 34-20A-70 shall remain in for treatment for a period not to exceed ninety days, unless sooner discharged. At the end of the ninety-day period, he the person shall be discharged automatically unless the administrator or an authorized designee of the facility to which the patient person is committed prior to expiration of the period obtains a court an order for recommitment upon the grounds set forth in § 34-20A-70 for a further period of ninety days, unless otherwise sooner discharged. "



Moved by:    Barthel
Second by:    Latterell
Action:    Prevailed by voice vote.

Chair, Representative Hansen passed the gavel to the Vice Chair, Representative Johns. Representative Hanse and exited the room.
Representative Hansen returned to the room.
The gavel was passed from Vice Chair, Representative Johns to Chair, Representative Hansen.

MOTION:    DO PASS HB 1132 AS AMENDED

Moved by:    Latterell
Second by:    Diedrich
Action:    Prevailed by roll call vote. (10-3-0-0)

Voting Yes:    Barthel, Borglum, Diedrich, Hammock, Latterell, Pischke, Rasmussen, Reimer, St John, Johns

Voting No:    Cwach, Pourier, Hansen

MOTION:    DO PASS HB 1106

Moved by:    Pischke
Second by:    Latterell
Action:    Failed by roll call vote. (5-7-1-0)

Voting Yes:    Hammock, Latterell, Pischke, Rasmussen, St John

Voting No:    Barthel, Borglum, Diedrich, Reimer, Cwach, Johns, Hansen

Excused:    Pourier

MOTION:    DEFER HB 1106 TO THE 41ST LEGISLATIVE DAY

Moved by:    Diedrich
Second by:    Borglum
Action:    Prevailed by roll call vote. (9-4-0-0)

Voting Yes:    Barthel, Borglum, Diedrich, Hammock, Reimer, Cwach, Pourier, Johns, Hansen

Voting No:    Latterell, Pischke, Rasmussen, St John

At 12:45PM, Representative Latterell moved that the committee recess until after the House adjourns for the day. Representative Pischke seconded the motion. Motion passed with a voice vote.
At 1:42PM the Chair, Representative Hansen called the meeting from recess to order.

    HB 1195: revise provisions regarding juvenile justice.

Presented by:    Representative Kevin Jensen
Proponents:    Chris White, self, Aberdeen
        Staci Ackerman, South Dakota Sheriffs' Association
        Dianna Miller, Large School Group
        Yvonne Taylor, South Dakota Police Chiefs Association
        Paul E. Bachand, South Dakota State's Attorneys Association
        Charles McGuigan, Office of the Attorney General
Opponents:    Greg Sattizahn, Unified Judicial System
        Amy Iversen-Pollreisz, Deputy Secretary, Department of Social Services
        Justin Bell, South Dakota Association of Criminal Defense Lawyers

Chair, Representative Hansen passed the gavel to the Vice Chair, Representative Johns and exited

the room.
Vice Chair, Representative Johns passed the gavel to Chair, Representative Hansen upon the return of the Chairman.

MOTION:    DO PASS HB 1195

Moved by:    Barthel
Second by:    Borglum
Action:    Withdrawn.

MOTION:    AMEND HB 1195

1195bb

    On the printed bill, delete everything after the enacting clause and insert:

"    Section1. That § 26-8C-7 be amended to read:

    26-8C-7. If a child has been adjudicated as a delinquent child, the court shall enter a decree of disposition according to the least restrictive alternative available in keeping with the best interests of the child. The decree shall contain one or more of the following:

            (1)    The court may require the child to pay restitution, as defined in subdivision 23A-28-2(4) and under conditions set by the court, if payment can be enforced without serious hardship or injustice to the child;

            (2)    The court may impose a fine not to exceed one thousand dollars;

            (3)    The court may place the child on probation under the supervision of a court services officer or another designated individual pursuant to § 26-8C-14;

            (4)    The court may require a child as a condition of probation to participate in a supervised community service program, if the child is not deprived of the schooling that is appropriate for the child's age, needs, and specific rehabilitative goals. The supervised community service program shall be of a constructive nature designed to promote rehabilitation, appropriate to the age level and physical ability of the child, and shall be combined with counseling by the court services officer or other guidance personnel. The supervised community service program assignment shall be made for a period of time consistent with the child's best interests, but for not more than ninety days;

            (5)    The court may place the child at the Human Services Center for examination and treatment;

            (6)    The court may place the child in a detention facility for not more than ninety days, which may be in addition to any period of temporary custody;

            (7)    The court may place the child in an alternative educational program;

            (8)    The court may order the suspension or revocation of the child's right to apply for a driving privilege, suspend or revoke an existing driving privilege, or restrict the privilege in such manner as it sees fit, including requiring that financial responsibility be proved and maintained;

            (9)    The court may assess or charge costs and fees permitted by §§ 16-2-41, 23-3-52, 23A-27-26, 23A-28B-42, and 23A-27-27 against the child, parent, guardian, custodian, or other party responsible for the child; or

            (10)    The court may only commit a child to the Department of Corrections if the judge finds that:

            (a)    No viable alternative exists;
            (b)    The Department of Corrections is the least restrictive alternative; and
            (c)    The child is currently adjudicated delinquent for an offense eligible for transfer proceedings pursuant to § 26-11-3.1; the child is currently adjudicated delinquent for a crime of violence pursuant to subdivision 22-1-2(9), sex offense pursuant to § 22-24B-1, felony sexual registry offense pursuant to chapter 22-24B, or burglary in the second degree pursuant to § 22-32-3; or the court finds from evidence presented at the dispositional hearing or from the pre-dispositional report that the youth presents a significant risk of physical harm to another person; or

            (11)    The court may only commit the child to the Department of Corrections for placement in a foster home, group home, group care center, residential treatment center, or other community-based services, if those community-based services were not provided prior to commitment, pursuant to chapter 26-11A, and if the judge finds that:

        (a)    No viable alternative exists;
            (b)    The Department of Corrections is the least restrictive alternative; and
            (c)    From evidence presented at the dispositional hearing or from the pre-dispositional report that the child is currently on probation, that probation has been unsuccessful and that no other appropriate services are available in the child's community.

    Any finding made pursuant to this section shall be made in the written decree. "


Moved by:    Borglum
Second by:    Pischke
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1195 AS AMENDED

Moved by:    Pischke
Second by:    Barthel
Action:    Prevailed by roll call vote. (9-4-0-0)

Voting Yes:    Barthel, Borglum, Diedrich, Hammock, Latterell, Pischke, Rasmussen, Reimer, St John

Voting No:    Cwach, Pourier, Johns, Hansen

MOTION:    ADJOURN

Moved by:    Cwach
Second by:    Pischke
Action:    Prevailed by voice vote.

Cheri Bartlett

____________________________

Committee Secretary
Jon Hansen, Chair

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