Senate Journal 02/02/1998 2:00 PM

JOURNAL OF THE SENATE

SEVENTY-THIRD SESSION

FIFTEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
February 2, 1998

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

     The prayer was offered by the Chaplain, Pastor Paul Kondy, followed by the Pledge of Allegiance led by Senate page Holly Rounds.

     Roll Call: All members present except Sen. Valandra who was excused.

APPROVAL OF THE JOURNAL

MADAM PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the fourteenth 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,

HAROLD W. HALVERSON, Chair

Which motion prevailed and the report was adopted.

The oath of office was administered by the President to the following named persons:

Assistant Sergeant-at Arms -- Milo Smith;

Pages: Courtney Brannan, Brooke Drewes, Holly Haanen, Anna Lakness, Quentin Riggins, Holly Rounds, Jeremy Smith, Brandon Stengel, John Ullmann, and Shawna Wood.

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

COMMUNICATIONS AND PETITIONS

January 26, 1998

The Honorable Carole Hillard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Madam 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 Margaret J. Dahl, Pennington County, Rapid City, South Dakota, to the South Dakota Board of Education.

This appointment is effective immediately, and shall continue until December 31, 1999.

Sincerely,
WILLIAM J. JANKLOW
GOVERNOR

The President referred the appointment to the Committee on Education.

January 26, 1998

The Honorable Carole Hillard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Madam 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 Glenna N. Fouberg, Brown County, Aberdeen, South Dakota, to the South Dakota Board of Education.

This appointment is effective immediately, and shall continue until December 31, 2001.

Sincerely,
WILLIAM J. JANKLOW
GOVERNOR

The President referred the appointment to the Committee on Education.

January 26, 1998

The Honorable Carole Hillard
President of the Senate
State Capitol
Pierre, SD 57501

Dear Madam President and Members of the Senate:

Pursuant to the provisions of Chapter 13-47 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed Dean Sorenson, Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Board of Directors for Educational Telecommunications.

This appointment is effective immediately, and shall continue until July 1, 1998.

Sincerely,
WILLIAM J. JANKLOW
GOVERNOR

The President referred the appointment to the Committee on Education.

REPORTS OF STANDING COMMITTEES

MADAM PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 178 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 225 and returns the same with the recommendation that said bill be amended as follows:

o-225

On page 1 , line 14 of the printed bill , delete everything after " be " and insert " considered as:

(1) Evidence of the necessity for a claimant to engage in a program of rehabilitation intended to restore the injured employee; or

(2) Evidence of employment that is not sporadic resulting in an unsubstantial income. "

On page 1 , line 15 , delete " to restore the injured employee. "

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SJR 1 and returns the same with the recommendation that said bill do not pass.

Also MADAM PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 169 which was deferred to the 36th legislative day.

Respectfully submitted,
Harold Halverson, Chair

Also MADAM PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 160 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 198 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MADAM PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 206 and returns the same with the recommendation that said bill be amended as follows:

r-206

On page 1 , line 14 of the printed bill , delete " upon compliance with " .

On page 1 , line 15 , delete " the standard forfeiture proceedings " .

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 184 which was deferred to the 36th legislative day.

Respectfully submitted,
Fred Whiting, Chair

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 183 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 122 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 182 which was tabled.

Respectfully submitted,
Barbara Everist, Chair

Also MADAM PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration SB 177 and HB 1006 and returns the same with the recommendation that said bills do pass.

Also MADAM PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration HB 1004 and 1005 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MADAM PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration HB 1007 and returns the same with the recommendation that said bill be amended as follows:

t-1007

On page 4 , after line 8 of the printed bill , insert:

" Section 7. 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. "

t-1007t

On page 1 , line 3 of the printed bill , after " limits " insert " and to declare an emergency " .

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration SB 78 and HB 1008 which were deferred to the 36th legislative day.

Respectfully submitted,
Alan Aker, Chair

Also MADAM PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration HB 1032, 1033, and 1078 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MADAM PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration SB 227 and returns the same with the recommendation that said bill be amended as follows:

j-227

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

" Section 1. That § 26-8A-21 be amended to read as follows:

26-8A-21. The Department of Social Services shall make reasonable efforts prior to the removal of an alleged or adjudicated abused or neglected child from the home of the child's parents, guardian , or custodian to prevent or eliminate the need for removal of the child. If the child has been removed from the home and has been placed in temporary custody of the Department of Social Services, the department shall make reasonable efforts to make it possible for the child to return to the home of the child's parents, guardian , or custodian. If the child is to be or has been removed from the home, the court shall first make a judicial determination that removal of the child from the home is or was necessary because continued presence of the child in the home would be contrary to the welfare of the child and that reasonable efforts by the Department of Social Services to avoid removal of the child from the home have been made. If the child has been removed from the home and has not been returned to the home, the court shall first make a judicial determination that reasonable efforts have been made by the Department of Social Services to return the child to the home and that the child cannot be returned to the home because it would be contrary to the welfare of the child.

Reasonable efforts to prevent the necessity for removal of a child from the home of the child's parents, guardian , or custodian and reasonable efforts to return the child to the home mean provision by the Department of Social Services of any assistance or services that:

(1) Are appropriate for the child's parents, guardian, custodian , or any other caretaker family of the child existing at the time of removal or possible return of the child , including instruction on parenting ;

(2) Are available pursuant to the comprehensive plan of preventive services of the Department of Social Services;

(3) Could be made available without undue financial burden on the Department of Social Services; or

(4) Would have a significant likelihood of protecting the child from substantial danger to the child's physical health or from severe emotional damage while enabling the child to remain in the home or to be returned to the home.

In determining the adequacy of reasonable efforts, the court shall consider the assistance, services , and efforts of the Department of Social Services. The court shall also consider the good faith efforts or the lack of good faith efforts made by the child's parents, guardian,

custodian , or other caretaker family to cooperate with the department and to effectively utilize the assistance or services for the benefit and welfare of the child.

Section 2. That chapter 26-9 be amended by adding thereto a NEW SECTION to read as follows:

If any person convicted of contributory abuse or contributory neglect is the child's parent, guardian, or custodian, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services.

Section 3. That § 26-10-1 be amended to read as follows:

26-10-1. Any person who abuses, exposes, tortures, torments , or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony.

If any person convicted of this offense is the minor's parent, guardian, or custodian, the court shall include as part of the sentence, or conditions required as part of suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services. This requirement does not apply if there is a reasonable expectation that parental rights will be terminated.

Section 4. That § 25-10-5 be amended to read as follows:

25-10-5. Upon notice and a hearing, if the court finds by a preponderance of the evidence that domestic abuse has taken place, the court may provide relief as follows:

(1) Restrain any party from committing acts of domestic abuse;

(2) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner;

(3) Award temporary custody or establish temporary visitation with regards to minor children of the parties;

(4) Establish temporary support for minor children of the parties or a spouse;

(5) Order that either or both of the parties obtain counseling;

(6) Order other relief as the court deems necessary for the protection of a family or household member, including orders or directives to a sheriff or constable.

Any relief granted by the order for protection shall be for a fixed period and may not exceed three years.

If any minor child resides with either party, the court shall order that the parties receive instruction on parenting approved or provided by the Department of Social Services as part of any relief granted.

Section 5. That chapter 25-10 be amended by adding thereto a NEW SECTION to read as follows:

If any person is convicted of a crime involving domestic abuse, and that person is the parent, guardian, or custodian of a minor child who resides with that person or the victim of the crime, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services. However, this section does not apply to any person convicted and imprisoned for any felony for such a duration that there is no expectation of release for at least four years. "

j-227t

On page 1 , line 1 of the printed bill , after " for " insert " certain " .

On page 1 , line 1 , delete " found " .

On page 1 , line 2 , delete everything before " . "

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Health and Human Services respectfully reports that it has had under consideration SB 186 which was deferred to the 36th legislative day.

Respectfully submitted,
Arnold Brown, Chair

MESSAGES FROM THE HOUSE

MADAM PRESIDENT:

I have the honor to transmit herewith HB 1020, 1021, 1070, 1093, 1108, 1135, 1136, 1141, 1167, 1204, 1212, and 1254 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
KAREN GERDES, Chief Clerk

CONSIDERATION OF REPORTS OF COMMITTEES

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

     Judiciary on SB 75 as found on page 257 of the Senate Journal; also

     State Affairs on SB 97 as found on page 255 of the Senate Journal; also

     Taxation on SB 103 as found on page 258 of the Senate Journal; also

     Judiciary on SB 139 as found on page 256 of the Senate Journal; also

     Judiciary on SB 144 as found on page 256 of the Senate Journal; also

     Judiciary on SB 145 as found on page 257 of the Senate Journal; also

     State Affairs on SB 210 as found on page 254 of the Senate Journal; also

     State Affairs on SJR2 as found on page 254 of the Senate Journal; also

     Transportation on SB 68 as found on page 259 of the Senate Journal be adopted.

     Which motion prevailed and the reports were adopted.

     Sen. Lawler moved that the word "not" be stricken from the report of the Committee on Transportation on SB 68 as found on page 259 of the Senate Journal and that SB 68 be placed on the calendar of Tuesday, February 3, the 16th legislative day .

     The question being on Sen. Lawler's motion that the word "not" be stricken from the report of the Committee on Transportation on SB 68 as found on page 259 of the Senate Journal and that SB 68 be placed on the calendar of Tuesday, February 3, the 16th legislative day.

     And the roll being called:

     Yeas 21, Nays 13, Excused 1, Absent and Not Voting 0

     Yeas were:
Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Dunn (Rebecca); Everist; Halverson; Ham; Hunhoff; Hutmacher; Lange; Lawler; Munson (David); Olson; Paisley; Reedy; Staggers; Symens; Vitter; Whiting

Nays were:
Aker; Albers; Drake; Dunn (Jim); Flowers; Frederick; Hainje; Johnson (William); Kleven; Kloucek; Morford; Rounds; Shoener

Excused were:
Valandra

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried.

There being no objection , the Senate reverted to Order of Business No. 8.

MOTIONS AND RESOLUTIONS

Sen. Drake moved that SB 216 and 217 be referred from the Committee on Appropriations to the Committee on State Affairs.

Which motion prevailed and the bills were so referred.

SECOND READING OF CONSENT CALENDAR ITEMS

SB 44: FOR AN ACT ENTITLED, An Act to revise the methods of compensating the administrator of the South Dakota Retirement System.

Was read the second time.

     The question being "Shall SB 44 pass as amended?"

     And the roll being called:

     Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0

     Yeas were:
Aker; Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn (Rebecca); Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hunhoff; Hutmacher; Johnson (William); Kleven; Kloucek; Lange; Lawler; Morford; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting

Excused were:
Valandra

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 179: FOR AN ACT ENTITLED, An Act to define those persons qualified to sign petitions for initiation or referendum of legislation.

Was read the second time.

The question being "Shall SB 179 pass?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0

Yeas were:
Aker; Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn (Rebecca); Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hunhoff; Hutmacher; Johnson (William); Kleven; Kloucek; Lange; Lawler; Morford; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting

Excused were:
Valandra

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 114: FOR AN ACT ENTITLED, An Act to permit investment by farm mutual insurers in common stock of banks or bank holding companies.

Having had its second reading was up for consideration and final passage.

     The question being "Shall SB 114 pass?"

     And the roll being called:

     Yeas 11, Nays 23, Excused 1, Absent and Not Voting 0

     Yeas were:
Albers; Benson; Daugaard; Drake; Frederick; Hutmacher; Johnson (William); Kloucek; Olson; Rounds; Staggers

Nays were:
Aker; Brosz; Brown (Arnold); Dennert; Dunn (Jim); Dunn (Rebecca); Everist; Flowers; Hainje; Halverson; Ham; Hunhoff; Kleven; Lange; Lawler; Morford; Munson (David); Paisley; Reedy; Shoener; Symens; Vitter; Whiting

Excused were:
Valandra

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

SB 141: FOR AN ACT ENTITLED, An Act to allow any person with the authorization of law enforcement or the Department of Social Services to take photographs, videotapes, or electronic images of a child if abuse or neglect is suspected.

Was read the second time.

Sen. Dunn (Rebecca) moved that SB 141 be placed to follow SB 187 on today's calendar.

Which motion prevailed and the bill was so placed.

SB 152: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding school days and school terms.

Was read the second time.

     The question being "Shall SB 152 pass as amended?"

     And the roll being called:

     Yeas 30, Nays 4, Excused 1, Absent and Not Voting 0

     Yeas were:
Aker; Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn (Rebecca); Everist; Frederick; Hainje; Halverson; Ham; Hunhoff; Hutmacher; Johnson (William); Kleven; Lange; Lawler; Munson (David); Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting

Nays were:
Flowers; Kloucek; Morford; Olson

Excused were:
Valandra

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 187: FOR AN ACT ENTITLED, An Act to revise the circumstances under which an out-of-state bank may establish and maintain a branch in South Dakota.

Was read the second time.

The question being "Shall SB 187 pass as amended?"

And the roll being called:

Yeas 3, Nays 31, Excused 1, Absent and Not Voting 0

Yeas were:
Lange; Staggers; Symens

Nays were:
Aker; Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn (Rebecca); Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hunhoff; Hutmacher; Johnson (William); Kleven; Kloucek; Lawler; Morford; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Vitter; Whiting

Excused were:
Valandra

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

r-141

Sen. Dunn (Rebecca) moved that SB 141 be amended as follows:

On page 1 , line 16 of the printed bill , after " records. " insert " Any photograph, videotape, or other image shall be destroyed by the Department of Social Services if no criminal prosecution is initiated within four years of the date that such material was received by the Department of Social Services. "

Which motion prevailed and SB 141 was so amended.

     The question being "Shall SB 141 pass as amended?"

     And the roll being called:

     Yeas 32, Nays 2, Excused 1, Absent and Not Voting 0

     Yeas were:
Aker; Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Dunn (Jim); Dunn (Rebecca); Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hunhoff; Hutmacher; Johnson (William); Kleven; Lange; Lawler; Morford; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting

Nays were:
Drake; Kloucek

Excused were:
Valandra

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.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1020: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to construct a softball complex at the University of South Dakota and to make an appropriation therefor.

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

HB 1021: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to purchase a tract of land in Vermillion, Clay County, and to make an appropriation.

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

HB 1070: FOR AN ACT ENTITLED, An Act to permit the sale of certain alcoholic beverages on Memorial Day.

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

HB 1093: FOR AN ACT ENTITLED, An Act to increase the amount of property exempt from process and to allow any person who is not the head of a family to claim an exemption in certain bankruptcy proceedings.

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

HB 1108: FOR AN ACT ENTITLED, An Act to revise the supervision requirements of certified registered nurse anesthetists by physicians.

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

HB 1135: FOR AN ACT ENTITLED, An Act to authorize production incentive payments for ethanol derived from biomass.

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

HB 1136: FOR AN ACT ENTITLED, An Act to revise certain requirements for the denaturing of ethanol alcohol.

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

HB 1141: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the publication of certain public employees' salaries.

Was read the first time and referred to the Committee on Local Government.

HB 1167: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning appeals from decisions of county boards of equalization and to declare an emergency.

Was read the first time and referred to the Committee on Local Government.

HB 1204: FOR AN ACT ENTITLED, An Act to allow the notation of a lien on the manufacturer's statement of origin or the manufacturer's certificate of origin for a motor vehicle or a boat.

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

HB 1212: FOR AN ACT ENTITLED, An Act to increase the salary of legislators.

Was read the first time and referred to the Committee on State Affairs.

HB 1254: FOR AN ACT ENTITLED, An Act to revise certain provisions related to the sale of titled vehicles.

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

Sen. Ham moved that the Senate do now adjourn, which motion prevailed, and at 3:40 p.m. the Senate adjourned.

PATRICIA ADAM, Secretary