JOURNAL OF THE SENATE

EIGHTY-FOURTH SESSION



EIGHTEENTH DAY



STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Monday, February 9, 2009

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

     The prayer was offered by the Chaplain, Father Kevin Doyle, followed by the Pledge of Allegiance led by Senate page Lauren Albers.

     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,
Bob Gray, Chair

     Which motion prevailed.
    The oath of office was administered by the President to the following named persons:

            Pages _ Lauren Albers, Mitchell Aman, Theresa Flahaven, Audra Hewitt, Kamaria Iversen, Ann Kroupa, Danielle Long, Sarah Luebke, Carol-Anne Mulloy, Ryan Peterson, Shawnee Price

    Which was subscribed to and placed on file in the office of the Secretary of State.

COMMUNICATIONS AND PETITIONS

January 29, 2009

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

    Pursuant to the provisions of Chapter 1-45 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Phyllis Heineman, Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Board of Education.

    This appointment is effective January 28, 2009, and shall continue until December 31, 2012.

Sincerely,
M. Michael Rounds
Governor

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

January 29, 2009

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Mr. President and Members of the Senate:

    Pursuant to the provisions of Chapter 5-12 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have reappointed James Roby, Codington County, Watertown, South Dakota, to the South Dakota Building Authority.


    This reappointment is effective immediately, and shall continue until January 21, 2013.

Sincerely,
M. Michael Rounds
Governor

    The President announced the referral of the reappointment to the Committee on State Affairs.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

    The Committee on Taxation respectfully reports that it has had under consideration SB  162, 192, and 196 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Tom Hansen, Chair

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration HB 1023 and 1133 and returns the same with the recommendation that said bills do pass and be placed on the consent calendar.

Respectfully submitted,
Mike Vehle, Chair

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration HB 1034 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 State Affairs respectfully reports that it has had under consideration SB 180 and returns the same with the recommendation that said bill be amended as follows:

180oa

     On page 2, line 16, of the printed bill, overstrike "is comprised of twenty or fewer members or shareholders".
    And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 202 and returns the same with the recommendation that said bill be amended as follows:

202ob

     On page 1, line 9, of the printed bill, delete "Government Operations and Audit Committee" and insert "Legislature".

    And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration the nomination of Michael Ropp of Brookings County, Brookings, South Dakota, to the South Dakota Energy Infrastructure Authority and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment.

Respectfully submitted,
Thomas A. Dempster, Chair

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration SB 113 and 155 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration SB 183 and returns the same with the recommendation that said bill be amended as follows:

183ta

     On page 2, line 1, of the printed bill, delete " shall " and insert " may ".

    And that as so amended said bill do pass and be placed on the consent calendar.

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration SB 157 which was deferred to the 41st Legislative Day.

Respectfully submitted,
Jason M. Gant, Chair

Also MR. PRESIDENT:

    The Committee on Health and Human Services respectfully reports that it has had under consideration SB 177 which was tabled.

Also MR. PRESIDENT:

    The Committee on Health and Human Services respectfully reports that it has had under consideration SB 198 which was deferred to the 41st Legislative Day.

Respectfully submitted,
Stanford M. Adelstein, Chair

MESSAGE FROM THE HOUSE

MR. PRESIDENT:

     I have the honor to return herewith SCR 2 in which the House has concurred.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

     Thursday, Sen. Heidepriem announced his intention to reconsider the vote by which SB 94 lost.

     Sen. Heidepriem moved that the Senate do now reconsider the vote by which SB 94 lost.

     The question being on Sen. Heidepriem's motion to reconsider the vote by which SB 94 lost.

     And the roll being called:

     Yeas 17, Nays 18, Excused 0, Absent 0

     Yeas:
Ahlers; Bartling; Gillespie; Hanson (Gary); Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Maher; Merchant; Miles; Nesselhuf; Novstrup (Al); Peterson; Turbak Berry

     Nays:
Abdallah; Adelstein; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gray; Hansen (Tom); Haverly; Knudson; Nelson; Olson (Russell); Rhoden; Schmidt; Tieszen; Vehle

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

CONSIDERATION OF REPORTS OF COMMITTEES

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

     Appropriations on SB 72 as found on page 317 of the Senate Journal ; also

     Appropriations on SB 74 as found on page 317 of the Senate Journal ; also

     Agriculture and Natural Resources on HB 1053 as found on page 318 of the Senate Journal ; also

     Judiciary on HB 1097 as found on page 319 of the Senate Journal be adopted.

     Which motion prevailed.

SECOND READING OF CONSENT CALENDAR ITEMS

     SB 84: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to collateral real estate mortgages.

     Was read the second time.

     The question being "Shall SB 84 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 89: FOR AN ACT ENTITLED, An Act to adopt the revised uniform commercial code, Article 7-Documents of Title.

     Was read the second time.

     The question being "Shall SB 89 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 119: FOR AN ACT ENTITLED, An Act to revise the authority of the state, counties, and townships to transfer highway right-of-ways under certain conditions.

     Was read the second time.

     The question being "Shall SB 119 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 130: FOR AN ACT ENTITLED, An Act to require written consent for the issuance of certain disinterment permits.

     Was read the second time.

     The question being "Shall SB 130 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 131: FOR AN ACT ENTITLED, An Act to authorize sheriffs to order autopsies.

     Was read the second time.

     The question being "Shall SB 131 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 161: FOR AN ACT ENTITLED, An Act to prohibit the use of federal income tax credits when assessing property.

     Was read the second time.

     The question being "Shall SB 161 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 1051: FOR AN ACT ENTITLED, An Act to make the sale or purchase of lawfully mounted fish an exception to the prohibition against the sale or purchase of fish taken from the waters of the state.

     Was read the second time.

     The question being "Shall HB 1051 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 1056: FOR AN ACT ENTITLED, An Act to authorize education programs required by the State Cosmetology Commission to be taught at branch schools.

     Was read the second time.

     The question being "Shall HB 1056 pass?"

     And the roll being called:


     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 129: FOR AN ACT ENTITLED, An Act to revise certain conditions that must be met before an extension of State Highway 53 in Tripp County is added to the state trunk highway system.

     Was read the second time.

     The question being "Shall SB 129 pass as amended?"

     And the roll being called:

     Yeas 25, Nays 10, Excused 0, Absent 0

     Yeas:
Adelstein; Ahlers; Bartling; Dempster; Fryslie; Garnos; Gillespie; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Maher; Merchant; Miles; Nelson; Nesselhuf; Peterson; Rhoden; Schmidt; Vehle

     Nays:
Abdallah; Bradford; Brown; Gant; Gray; Knudson; Novstrup (Al); Olson (Russell); Tieszen; Turbak Berry

     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 96: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the indemnification of employees, officers, and agents of rural electric cooperatives.

     Was read the second time.

     The question being "Shall SB 96 pass as amended?"

     And the roll being called:


     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 105: FOR AN ACT ENTITLED, An Act to require the State Brand Board to provide certain reports and information and to provide for Senate confirmation for Brand Board members.

     Was read the second time.

105tb

     Sen. Rhoden moved that SB 105 be further amended as follows:

     On page 2, line 2, of the Senate Agriculture and Natural Resources Committee engrossed bill, after "year" insert "if the hold status was not resolved at the livestock auction market and if the hold status was reported to the Brand Board office by the livestock auction market, ".

     Which motion prevailed.

105fa

     Sen. Gray moved that SB 105 be further amended as follows:

     On page 2 of the Senate Agriculture and Natural Resources Committee engrossed bill, delete lines 14 to 17, inclusive.

     Sen. Gillespie requested a roll call vote.

     Which request was supported.

     The question being on Sen. Gray's motion that SB 105 be further amended.

     And the roll being called:

     Yeas 9, Nays 26, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Gray; Hansen (Tom); Hunhoff (Jean); Nelson; Novstrup (Al); Olson (Russell); Tieszen

     Nays:
Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nesselhuf; Peterson; Rhoden; Schmidt; Turbak Berry; Vehle

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

105xa

     Sen. Knudson moved that SB 105 be further amended as follows:

     On page 1, line 6, of the Senate Agriculture and Natural Resources Committee engrossed bill, delete everything after "the" and insert "Legislature".

     On page 1, delete line 7.

     On page 1, line 8, delete "Audit Committees".

     Which motion prevailed.

     The question being "Shall SB 105 pass as amended?"

     And the roll being called:

     Yeas 33, Nays 2, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     Nays:
Gray; Hunhoff (Jean)

     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. Knudson moved that SB 115 be deferred to Tuesday, February 10, the 19th legislative day.

     Which motion prevailed.

     Sen. Knudson moved that SB 32 and 36 be deferred to Wednesday, February 11, the 20th legislative day.

     Which motion prevailed.

     Sen. Knudson moved that HB 1088 and 1089 be deferred to Tuesday, February 10, the 19th legislative day.

     Which motion prevailed.

     SB 122: FOR AN ACT ENTITLED, An Act to clarify the status of property contiguous to a municipality that is crossed by railroad property.

     Was read the second time.

     The question being "Shall SB 122 pass?"

     And the roll being called:

     Yeas 34, Nays 0, Excused 1, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     Excused:
Fryslie

     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.

     SJR 1: A JOINT RESOLUTION, To propose a constitutional amendment to authorize the Legislature on the advice of the Governor, to forestall certain threats from interstate gaming.

     Was read the second time.

     The question being "Shall SJR 1 pass?"

     And the roll being called:

     Yeas 20, Nays 15, Excused 0, Absent 0

     Yeas:
Abdallah; Ahlers; Bartling; Bradford; Gant; Gillespie; Hanson (Gary); Haverly; Heidepriem; Hundstad; Hunhoff (Jean); Jerstad; Maher; Merchant; Miles; Nesselhuf; Olson (Russell); Peterson; Tieszen; Turbak Berry

     Nays:
Adelstein; Brown; Dempster; Fryslie; Garnos; Gray; Hansen (Tom); Howie; Kloucek; Knudson; Nelson; Novstrup (Al); Rhoden; Schmidt; Vehle

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

     Sen. Knudson announced his intention to reconsider the vote by which SJR 1 passed.

     SB 22: FOR AN ACT ENTITLED, An Act to authorize counties to borrow funds for the construction and operation of solid waste management facilities through the issuance of revenue bonds and to set rates in an amount sufficient to retire the bonds.

     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:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 127: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to trust administration.

     Was read the second time.

127ja
     Sen. Knudson moved that SB 127 be amended as follows:
     On page 13, line 1, of the printed bill, delete " with " and insert " within ".

     On page 29, line 15, delete " (1) " and insert " (a) ".

     On page 30, line 5, delete " §  55-13A-409(a)(2)(d) " and insert " §  55-13A-409(d) ".

     On page 30, delete lines 15 to 24, inclusive.

     On page 35, line 13, after " person " overstrike ",".

     On page 36, after line 14, insert:

    "Section 45. That § 55-15-1 be amended to read as follows:

     55-15-1.   Terms used in this chapter mean:

             (1)      "Disinterested person," any person who is not a related or subordinate party, as defined in section 672(c) of the Internal Revenue Code (26 U.S.C. section 1, et seq.), with respect to the person then acting as trustee of the trust and excludes the trustor of the trust and any interested trustee;

             (2)      "Income trust," any trust, created by either an inter vivos or a testamentary instrument, which directs or permits the trustee to distribute the net income of the trust to one or more persons, either in fixed proportions or in amounts or proportions determined by the trustee. However, no trust that otherwise is an income trust may qualify pursuant to this subdivision, if it is subject to taxation under I.R.C. section 2001 or section 2501, until the expiration of the period for filing the return therefor (including extensions);

             (3)      "Interested distributee," any person to whom distributions of income or principal can currently be made who has the power to remove the existing trustee and designate as successor a person who may be a related or subordinate party, as defined in I.R.C. section 672(c), with respect to such distributee;

             (4)      "Interested trustee," (I) any individual trustee to whom the net income or principal of the trust can currently be distributed or would be distributed if the trust were then to terminate and be distributed, or (ii) any trustee who may be removed and replaced by an interested distributee, or (iii) any individual trustee whose legal obligation to support a beneficiary may be satisfied by distributions of income and principal of the trust, or (iv) any of the above;

             (5)      "Total return unitrust," any income trust which has been converted under and meets the provisions of this chapter;

             (6)      "Trustee," all persons acting as trustee of the trust, except where expressly noted otherwise, whether acting in their discretion or on the direction of one or more persons acting in a fiduciary capacity;
             (7)      "Trustor," any individual who created an inter vivos or a testamentary trust;

             (7A)    "Unitrust," a trust, the terms of which require or permit distribution of a unitrust amount, without regard to whether the trust has been converted to a unitrust in accordance with this chapter or whether the trust is established by express terms of the governing instrument;

             (8)      "Unitrust amount," an amount computed as a percentage of the fair market value of the trust equal to a percentage of a unitrust's assets that may or are required to be distributed to one or more beneficiaries annually in accordance with the terms of the unitrust. The unitrust amount may be determined by reference to the net fair market value of the unitrust's assets as of a particular date each year or as an average determined on a multiple year basis ;

             (9)      "Current valuation year," the accounting period of the trust for which the unitrust amount is being determined;

             (10)      "Prior valuation year," each of the two accounting periods of the trust immediately preceding the current valuation year; and

             (11)      "I.R.C.," the Internal Revenue Code (26 U.S.C. section 1, et seq.). "

     Which motion prevailed.

     The question being "Shall SB 127 pass as amended?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 136: FOR AN ACT ENTITLED, An Act to repeal the provision that requires cooperatives to set aside a portion of the net proceeds as an education fund.

     Was read the second time.

     The question being "Shall SB 136 pass?"

     And the roll being called:

     Yeas 22, Nays 13, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Brown; Dempster; Fryslie; Gant; Garnos; Gray; Hansen (Tom); Haverly; Howie; Hunhoff (Jean); Knudson; Nelson; Novstrup (Al); Olson (Russell); Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     Nays:
Bartling; Bradford; Gillespie; Hanson (Gary); Heidepriem; Hundstad; Jerstad; Kloucek; Maher; Merchant; Miles; Nesselhuf; Peterson

     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 139: FOR AN ACT ENTITLED, An Act to provide for certain restrictions for the use of tanning devices by minors.

     Was read the second time.

139xa

     Sen. Adelstein moved that SB 139 be further amended as follows:

     On page 1, line 6, of the Senate Health and Human Services Committee engrossed bill, delete everything after "device" and insert "."

     On page 1, delete lines 7 to 13, inclusive.

     On page 2, delete lines 1 and 2.

     Sen. Adelstein requested a roll call vote.

     Which request was supported.

     The question being on Sen. Adelstein's motion that SB 139 be further amended.

     And the roll being called:

     Yeas 6, Nays 29, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Gray; Merchant; Olson (Russell); Rhoden

     Nays:
Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Miles; Nelson; Nesselhuf; Novstrup (Al); Peterson; Schmidt; Tieszen; Turbak Berry; Vehle

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

     The question being "Shall SB 139 pass as amended?"

     And the roll being called:

     Yeas 13, Nays 22, Excused 0, Absent 0

     Yeas:
Adelstein; Ahlers; Bradford; Dempster; Hansen (Tom); Hundstad; Jerstad; Kloucek; Merchant; Miles; Nelson; Nesselhuf; Tieszen

     Nays:
Abdallah; Bartling; Brown; Fryslie; Gant; Garnos; Gillespie; Gray; Hanson (Gary); Haverly; Heidepriem; Howie; Hunhoff (Jean); Knudson; Maher; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Turbak Berry; Vehle

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


     SB 158: FOR AN ACT ENTITLED, An Act to provide for the recall of certain officials in third class municipalities.

     Was read the second time.

     The question being "Shall SB 158 pass as amended?"

     And the roll being called:

     Yeas 34, Nays 1, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     Nays:
Kloucek


     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 164: FOR AN ACT ENTITLED, An Act to revise the General Appropriations Act for fiscal year 2009 to fund the South Dakota Opportunity Scholarship.

     Was read the second time.

     The question being "Shall SB 164 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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 165: FOR AN ACT ENTITLED, An Act to provide for the authorization of certain private, nonprofit benevolent organizations to assist in funding certain school curricula, activities, and programs.

     Was read the second time.

     The question being "Shall SB 165 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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.

     SJR 3: A JOINT RESOLUTION, Proposing and submitting to the electors at the next general election an amendment to Article III, section 6 of the Constitution of the State of South Dakota, relating to four-year senatorial terms and term limits.

     Was read the second time.

     The question being "Shall SJR 3 pass as amended?"

     And the roll being called:

     Yeas 21, Nays 14, Excused 0, Absent 0

     Yeas:
Adelstein; Ahlers; Brown; Dempster; Gant; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Jerstad; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Rhoden; Schmidt; Tieszen; Turbak Berry

     Nays:
Abdallah; Bartling; Bradford; Fryslie; Garnos; Gillespie; Gray; Howie; Hundstad; Hunhoff (Jean); Kloucek; Olson (Russell); Peterson; Vehle

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

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

     HB 1054: FOR AN ACT ENTITLED, An Act to authorize certain youth licensees who possess a disabled hunting permit to hunt big game animals using a designated hunter.

     Was read the second time.

     The question being "Shall HB 1054 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

     Yeas:
Abdallah; Adelstein; Ahlers; Bartling; Bradford; Brown; Dempster; Fryslie; Gant; Garnos; Gillespie; Gray; Hansen (Tom); Hanson (Gary); Haverly; Heidepriem; Howie; Hundstad; Hunhoff (Jean); Jerstad; Kloucek; Knudson; Maher; Merchant; Miles; Nelson; Nesselhuf; Novstrup (Al); Olson (Russell); Peterson; Rhoden; Schmidt; Tieszen; Turbak Berry; Vehle

     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.


COMMEMORATIONS

     SC 7  Introduced by:  Senator Hunhoff (Jean) and Representatives Moser and Hunhoff (Bernie)

         A LEGISLATIVE COMMEMORATION,  Commending the 2008 Yankton High School Bucks Boys' Cross Country Team for winning the state title in the Class AA State Cross Country Meet for the fourth consecutive year.

     WHEREAS,  the Yankton Bucks Boys' Cross Country Team, coached by Dave Dannenbring, Luke Youmans, and Doug Haar, exemplified athletic excellence, superiority, and the will to win throughout the season; and

     WHEREAS,  the Yankton Bucks Boys' Cross Country Team, including Jared Ailts, Mike Darcy, Jens Lillevold, Travis Brenner, Alex Hohentanner, Brandon Klassen, Ethan Methenay, Mark Wilcox, Mitch Yeaggie, T.J. Dumke, Josh Lundgren, Aaron Kasch, and Kipp Kinsley served as an estimable model of discipline, dedication, and determination; and

     WHEREAS,  the team and the coaching staff performed exceptionally throughout the year, winning the aforementioned state title:

     NOW, THEREFORE, BE IT COMMEMORATED,  by the Eighty-fourth Legislature of the State of South Dakota, that the Yankton Bucks Boys' Cross Country Team and its coaching staff be congratulated and commended on their triumphant 2008 cross country season.

     SC 8  Introduced by:  Senators Kloucek, Ahlers, Bartling, Bradford, Brown, Gant, Gillespie, Gray, Heidepriem, Howie, Hunhoff (Jean), Jerstad, Maher, Merchant, Novstrup (Al), Peterson, Rhoden, Turbak Berry, and Vehle and Representatives Putnam, Carson, Cutler, Engels, Feickert, Frerichs, Gibson, Greenfield, Iron Cloud III, Jensen, Juhnke, Killer, Lucas, Moser, Nygaard, Olson (Betty), Schlekeway, Schrempp, Sorenson, Street, Tidemann, Van Gerpen, and Vanneman

         A LEGISLATIVE COMMEMORATION,  Honoring Earv Archambeau, son of Rita and the late Merv Archambeau of Avon, South Dakota, for his outstanding accomplishments as a high school athlete.

     WHEREAS,  Earv Archambeau has proven to be a leader in four different sports--basketball, football, golf, and track--at Avon High School and was named the Press & Dakotan's Prep Boys Athlete of the Year for 2008; and

     WHEREAS,  Earv Archambeau possesses a competitive strength and deep desire for the game of football, giving him a successful five-year career with 4,670 rushing yards, 70 touchdowns, and three Class 9A state titles. Earv Archambeau was named Most Valuable Player in one of the title games; and
     WHEREAS,  Earv Archambeau was selected as Elite 45 Captain by the Sioux Falls Argus Leader. The award recognizes him as the top football athlete in South Dakota; and

     WHEREAS,  Earv Archambeau averaged 10 points, 4 assists, and 3 steals in each basketball game last season for the Avon Pirates, who finished with a 16-6 record; and

     WHEREAS,  in May, Earv Archambeau contributed to the Avon Pirates by playing in the Class B State Golf Championship and in the same month competed in the state track meet:

     NOW, THEREFORE, BE IT RESOLVED,  by the Senate of the Eighty-fourth Legislature of the State of South Dakota, the House of Representatives concurring therein, that Earv Archambeau be congratulated and commended for his phenomenal performance in high school athletics.

     Sen. Schmidt moved that the Senate do now adjourn, which motion prevailed and at 4:51 p.m. the Senate adjourned.

Trudy Evenstad, Secretary