74th Legislative Session -- 1999

Committee: House Judiciary

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P      Duniphan
P      Earley
P      Fitzgerald
P      Koehn
P      McIntyre
P      Michels
P      Nachtigal
P      Slaughter
P      Volesky
P      Wilson
P      Young
P      Hunt, Vice-Chair
P      Brown (Jarvis), Chair


OTHERS PRESENT: See Original Minutes

The meeting was called to order by Representative Jarvis Brown.

MOTION:      TO APPROVE THE MINUTES OF January 20, 1999.

Moved by:      Representative Duniphan
Second by:      Representative Koehn
Action:      Prevailed by voice vote.

          HB 1003:   provide for the recovery of certain expenses in an action brought to court by any governmental subdivision relative to the assessment of property.

Proponents:      R. Thornton Vallery
          Rick Vallery (Document 1)
Opponents:      Dick Howard, Executive Director, Co. Commissioner's Association
Presented by:      Representative Kenneth McNenny

MOTION:      AMEND HB 1003

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r-1003

     On page 1 , line 6 of the printed bill , delete " shall " and insert " may " .

     On page 1 , line 6 , delete " a reasonable sum to reimburse a person for expenses " and insert " disbursements " .

     On page 1 , line 12 , delete " The " and insert " On motion, the " .

     On page 1 , line 12 , delete " shall " and insert " may " .

     On page 1 , line 12 , after " award " delete " a " .

     On page 1 , line 12 , delete " sum to reimburse a person for expenses, " .

     On page 1 , line 13 , delete " including " .

     On page 1 , line 13 , after " fees " delete " , " .

     On page 1 , line 15 , after " assessment. " insert " The motion shall be accompanied by counsel's verified itemized statement of costs incurred and legal services rendered. " .

Moved by:      Representative Hunt
Second by:      Representative Duniphan
Action:      Was not acted on.

MOTION:      SUBSTITUTE MOTION AMEND HB 1003

r-1003a

     On page 1 , line 6 of the printed bill , delete " a reasonable sum to reimburse a person for expenses " and insert " disbursements " .

     On page 1 , line 12 , delete " The " and insert " On motion, the " .

     On page 1 , line 12 , delete " shall " and insert " may " .

     On page 1 , line 12 , after " award " delete " a " .

     On page 1 , line 12 , delete " sum to reimburse a person for expenses, " .

     On page 1 , line 13 , delete " including " .

     On page 1 , line 13 , after " fees " delete " , " .

---

     On page 1 , line 15 , after " assessment " insert " The motion shall be accompanied by counsel's verified itemized statement of costs incurred and legal services rendered. " .

Moved by:      Representative Young
Second by:      Representative Fitzgerald
Action:      Prevailed by voice vote.

MOTION:      DO PASS HB 1003 AS AMENDED

Moved by:      Representative Duniphan
Second by:      Representative Koehn
Action:      Prevailed by roll call vote.   (11-2-0-0)

Voting yes:      Duniphan, Earley, Fitzgerald, Koehn, McIntyre, Michels, Nachtigal, Slaughter, Volesky, Young, Brown (Jarvis)

Voting no:      Wilson, Hunt

          HB 1019:   provide for a statewide public defender program for indigents charged with certain high-grade felonies.

Proponents:      Bob Frieberg, SD Trial Lawyer's Association
          Tom Barnett, State Bar Association (Document 2)
          Senator Ken Albers
          Dick Howard, Executive Director, Co. Commissioner's Assoc. (Document 3)
Opponents:      Nick Braune, SD Peace and Justice Center

MOTION:      AMEND HB 1019

r-1019a

     On page 1 , delete lines 4 to 10 of the printed bill , inclusive , and insert:

"
     Section 1. There is hereby established the South Dakota Public Defender Commission to provide, supervise, and coordinate legal representation at public expense for indigent persons who are charged with a crime which is punishable as a Class A, Class B, Class 1, or Class 2 felony, including appeals from convictions for such felonies, and who is not entitled to legal defense by a county public defender. The commission shall consist of five members, one of whom shall be the chair. The chair and one other member shall be appointed by the Governor, two members shall be appointed by the Supreme Court, and one member shall be appointed by the president of the State Bar of South Dakota. The chair, the member appointed by the president of the State Bar of South Dakota, and at least one member appointed by the Supreme Court shall be attorneys admitted to the practice of law in this state. Members' terms shall be five years, but the terms of the initial members shall be determined by lot so that the term of one member expires each year.

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     Section 2. The South Dakota Public Defender Commission shall appoint the state public defender, who shall serve at the pleasure of the commission, and who shall be experienced in the defense of criminal cases. The state public defender may employ, with the approval of the commission, necessary assistant public defenders and other employees at salaries approved by the commission, which assistant public defenders shall serve at the pleasure of the state public defender. The state public defender shall serve full-time and may not engage in the private practice of law. Assistant public defenders and other employees may serve full-time or part-time as determined by the state public defender. "

     On page 1 , line 11 , delete everything after " Section 3. " .

     On page 1 , delete lines 12 and 13 .

     On page 1 , line 14 , delete " and other employees are to be part time or full time. " .

     On page 2 , delete lines 10 and 11 , and insert:

"      Section 4. Any person who is charged with a crime punishable as a Class A, Class B, Class 1, or Class 2 felony, or who is party to an appeal concerning such charge and who requests appointment of counsel may be represented by the state public defender."

     On page 2 , line 12 , delete " state public defender to provide representation. " .

     On page 2 , line 16 , delete " The information contained in such " .

     On page 2 , delete lines 17 to 20 , inclusive .

     On page 2 , line 21 , delete " incomplete. " .

     On page 2 , delete lines 23 to 25 , inclusive , and insert:

"      Section 5. The court may appoint counsel other than the state public defender to represent indigent defendants charged with a crime described in section 1 of this Act in situations in which there are multiple defendants requiring separate representation or other exigent circumstances which in the opinion of the court require appointment of other than the state public defender. "

     On page 3 , delete lines 1 to 3 , inclusive , and insert:

"      Section 6. One-half of the annual budget of the commission shall be paid by the fund established pursuant to §  7-16B-13 in accordance with rules promulgated by the commission pursuant to chapter 1-26 which shall provide for quarterly assessments to all counties which do not provide a public defender to represent a person charged with a crime punishable as a Class A, Class B, Class 1, or Class 2 felony. "

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Moved by:      Representative Duniphan
Second by:      Representative Wilson
Action:      Was not acted on.

MOTION:      SUBSTITUTE MOTION AMEND HB 1019

r-1019

     On page 1 , delete lines 4 to 10 of the printed bill , inclusive , and insert:

"
     Section 1. There is hereby established the South Dakota Public Defender Commission to provide, supervise, and coordinate legal representation at public expense for indigent persons who are charged with a crime which is punishable as a Class A, Class B, Class 1, or Class 2 felony, including appeals from convictions for such felonies, and who is not entitled to legal defense by a county public defender. The commission shall consist of five members, one of whom shall be the chair. The chair and one other member shall be appointed by the Governor, two members shall be appointed by the Supreme Court, and one member shall be appointed by the president of the State Bar of South Dakota. The chair, the member appointed by the president of the State Bar of South Dakota, and at least one member appointed by the Supreme Court shall be attorneys admitted to the practice of law in this state. Members' terms shall be five years, but the terms of the initial members shall be determined by lot so that the term of one member expires each year.

     Section 2. The South Dakota Public Defender Commission shall appoint the state public defender, who shall serve at the pleasure of the commission, and who shall be experienced in the defense of criminal cases. The state public defender may employ, with the approval of the commission, necessary assistant public defenders and other employees at salaries approved by the commission, which assistant public defenders shall serve at the pleasure of the state public defender. The state public defender shall serve full-time and may not engage in the private practice of law. Assistant public defenders and other employees may serve full-time or part-time as determined by the state public defender. "

     On page 1 , line 11 , delete everything after " Section 3. " .

     On page 1 , delete lines 12 and 13 .

     On page 1 , line 14 , delete " and other employees are to be part time or full time. " .

     On page 2 , delete lines 10 and 11 , and insert:

"      Section 4. Any person who is charged with a crime punishable as a Class A, Class B, Class 1, or Class 2 felony, or who is party to an appeal concerning such charge and who requests appointment of counsel may be represented by the state public defender."

     On page 2 , line 12 , delete " state public defender to provide representation. " .

---

     On page 2 , line 16 , delete " The information contained in such " .

     On page 2 , delete lines 17 to 20 , inclusive .

     On page 2 , line 21 , delete " incomplete. " .

     On page 2 , delete lines 23 to 25 , inclusive , and insert:

"      Section 5. The court may appoint counsel other than the state public defender to represent indigent defendants charged with a crime described in section 1 of this Act in situations in which there are multiple defendants requiring separate representation or other exigent circumstances which in the opinion of the court require appointment of other than the state public defender. "

     On page 3 , delete lines 1 to 3 , inclusive , and insert:

"      Section 6. One-half of the annual budget of the commission shall be paid by the fund established pursuant to §  7-16B-13 in accordance with rules, consistent with the factors provided for in subdivisions 7-16B-20(1) and (2), promulgated by the commission pursuant to chapter 1-26 which shall provide for quarterly assessments to all counties which do not provide a public defender to represent a person charged with a crime punishable as a Class A, Class B, Class 1, or Class 2 felony. "

Moved by:      Representative Hunt
Second by:      Representative Duniphan
Action:      Prevailed by voice vote.

MOTION:      DO PASS HB 1019 AS AMENDED

Moved by:      Representative Koehn
Second by:      Representative Duniphan
Action:      Was not acted on.

MOTION:      SUBSTITUTE MOTION DEFER HB 1019 UNTIL January 27, 1999.

Moved by:      Representative Wilson
Second by:      Representative Young
Action:      Prevailed by roll call vote.   (9-4-0-0)

Voting yes:      Earley, Fitzgerald, McIntyre, Michels, Nachtigal, Slaughter, Wilson, Young, Hunt

Voting no:      Duniphan, Koehn, Volesky, Brown (Jarvis)

          HB 1026:   require a permanency hearing to be held if the court has determined that reasonable efforts are not appropriate, to require that the court determine a

compelling reason exists when long-term foster care is proposed as a permanent plan, and to clarify what circumstances constitute long-term foster care for children adjudicated as abused or neglected.

Proponents:      Judy Hines, Department of Social Services
Opponents:      None

MOTION:      DO PASS HB 1026

Moved by:      Representative Volesky
Second by:      Representative McIntyre
Action:      Prevailed by roll call vote.   (13-0-0-0)

Voting yes:      Duniphan, Earley, Fitzgerald, Koehn, McIntyre, Michels, Nachtigal, Slaughter, Volesky, Wilson, Young, Hunt, Brown (Jarvis)

MOTION:      ADJOURN

Moved by:      Representative Koehn
Second by:      Representative Duniphan
Action:      Prevailed by voice vote.

Elizabeth L. Markley

Committee Secretary