JOURNAL OF THE SENATE
TWENTY-FIFTH DAY
STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
February 14, 2000
The Senate convened at 2:00 p.m., pursuant to adjournment, the President presiding.
The prayer was offered by the Chaplain, Deacon Judy Flagstad, followed by the Pledge of
Allegiance led by Senate page Akber Ameer.
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 twenty-fourth 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 Halverson, Chair
Which motion prevailed and the report was adopted.
The President administered the oath of office to following named persons:
Pages: Akber Ameer, Jessica Buchholz, Ashley Davis, Michael Eisenbraun, Benjamin
Good, Monica Olsen, Mary (Maggie) Peters, Rebecca Rodgers, Elizabeth Russman, Suzanne
Somsen, Taylor Trask, and Crystal Truax.
Which were subscribed to and placed on file in the office of the Secretary of State.
CONSIDERATION OF EXECUTIVE APPOINTMENTS
The Senate proceeded to the consideration of the executive appointment of Ronald W.
Mielke of Minnehaha County, Sioux Falls, South Dakota, as Assistant Adjutant General, Air.
The question being "Does the Senate advise and consent to the executive appointment of
Ronald W. Mielke pursuant to the executive message as found on page 368 of the Senate
Journal?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds;
Shoener; Staggers; Symens; Vitter; Whiting
Excused were:
Valandra
So the question having received an affirmative vote of a majority of the members-elect, the
President declared the appointment confirmed.
The Senate proceeded to the consideration of the executive appointment of Donald J.
Goldhorn of Pennington County, Rapid City, South Dakota, as Assistant Adjutant General,
Army.
The question being "Does the Senate advise and consent to the executive appointment of
Donald J. Goldhorn pursuant to the executive message as found on page 346 of the Senate
Journal?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds;
Shoener; Staggers; Symens; Vitter; Whiting
Excused were:
Valandra
So the question having received an affirmative vote of a majority of the members-elect, the
President declared the appointment confirmed.
HONORED GUESTS
The President introduced Mary (Maggie) Peters, South Dakota Snow Queen 2000, from
Milbank, who was escorted to the Chamber by Senator Halverson who presented the
commemoration honoring her.
REPORTS OF STANDING COMMITTEES
MADAM PRESIDENT:
The Committee on State Affairs respectfully reports that it has had under consideration HB
1073, 1110, 1171, and 1229 and returns the same with the recommendation that said bills do
pass.
Also MADAM PRESIDENT:
The Committee on State Affairs respectfully reports that it has had under consideration HB
1029 and 1306 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 State Affairs respectfully reports that it has had under consideration HB
1251 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 HB
1064 and 1065 and returns the same with the recommendation that said bills do pass.
Also MADAM PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration HB
1068 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 HB
1277 and returns the same with the recommendation that said bill be amended as follows:
1277ra
On page
1
,
line
12 of the printed bill
,
after "
complaint,
"
insert "
information,
"
.
And that as so amended 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 HB
1061 and 1066 which were tabled.
Also MADAM PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration HB
1063 which was deferred to the 36th legislative day.
Respectfully submitted,
Fred Whiting, Chair
Also MADAM PRESIDENT:
The Committee on Legislative Procedure respectfully reports that SB 13, 146, 147, 149,
and 174 were delivered to his Excellency, the Governor, for his approval at 11:30 a.m., February
14, 2000.
Respectfully submitted,
Harold Halverson, Chair
MADAM PRESIDENT:
I have the honor to return herewith SCR 3 in which the House has concurred.
Also MADAM PRESIDENT:
I have the honor to transmit herewith HCR 1006, 1012, and 1013 which have been adopted
by the House and your concurrence is respectfully requested.
Also MADAM PRESIDENT:
I have the honor to transmit herewith HB 1005, 1006, 1243, 1244, 1261, and 1301 which
have passed the House and your favorable consideration is respectfully requested.
Respectfully,
Karen Gerdes, Chief Clerk
Sen. Symens moved that the rules be suspended for the sole purpose of introducing, giving
first reading to, dispensing with committee referral, and placing on the calendar of Tuesday,
February 15, the 26th legislative day, a bill relating to the acquisition and management of
certain rail lines if rail service is abandoned.
The question being on Sen. Symens' motion that the rules be suspended for the sole
purpose of introducing, giving first reading to, dispensing with committee referral, and placing
on the calendar of Tuesday, February 15, the 26th legislative day, a bill relating to the
acquisition and management of certain rail lines if rail service is abandoned.
And the roll being called:
Yeas 31, Nays 2, Excused 2, Absent and Not Voting 0
Yeas were:
Albers; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn (Rebecca);
Duxbury; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven; Kloucek; Lange;
Lawler; Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers;
Symens; Vitter; Whiting
Nays were:
Benson; Bogue
Excused were:
Everist; Valandra
So the motion having received an affirmative vote of a two-thirds majority of the members-
elect, the President declared the motion carried.
SB 209
Introduced by:
Senators Symens, Dennert, Halverson, Hutmacher, and Rounds and
Representatives Cutler, Crisp, Haley, and Hanson
FOR AN ACT ENTITLED, An Act to
provide for the acquisition and management of
certain rail lines if rail service is abandoned.
Was read the first time.
SCR 7
Introduced by:
Senators Kloucek, Dennert, Duxbury, Hutmacher, Lawler, Symens,
and Valandra and Representatives Kazmerzak, Burg, Chicoine, Fryslie, Hanson, Konold, Lintz,
Lockner, Sutton (Daniel), and Weber
A CONCURRENT RESOLUTION,
Supporting the efforts of the South Dakota National
Resources Conservation Service and of South Dakota farm producers regarding wetland
issues.
WHEREAS,
the 1985 Farm Bill with the Swampbuster Act Provision was national policy
for all of the fifty states of the United States of North America; and
WHEREAS,
the South Dakota Natural Resources Conservation Service made its own
separate set of rules regarding wetland determinations in 1985 because they said that South
Dakota was unique in that the state was in the Prairie Pothole Region; and
WHEREAS,
the fact is that the Prairie Pothole Region of North America includes large
portions of the four states of Iowa, Minnesota, North Dakota, and South Dakota, and these four
states all have similar if not identical wetland characteristics; and
WHEREAS,
the South Dakota Natural Resources Conservation Service finally admitted that
it was out of compliance with the 1985 Swampbuster Act and made procedural adjustments for
making wetland determinations which were approved by the National Natural Resources
Conservation Service in August of 1999; and
WHEREAS,
the National Natural Resources Conservation Service then made an out-of-
court settlement agreement in January 2000 with the National Wildlife Federation and other
groups which nullified the procedural adjustments adopted by the South Dakota Natural
Resources Conservation Service in August 1999; and
WHEREAS,
the South Dakota Natural Resources Conservation Service and the South
Dakota farm producers had no input into the provisions of the settlement agreement but the
South Dakota farm producers are directly affected by the results, and they are unable to
negotiate on their own behalf; and
WHEREAS,
South Dakota farm producers are good stewards of their land and water
resources and understand the need to protect true wetlands and the need to protect wildlife:
NOW, THEREFORE, BE IT RESOLVED,
by the Senate of the Seventy-fifth Legislature
of the State of South Dakota, the House of Representatives concurring therein, that the
Legislature of the State of South Dakota:
(1) Supports efforts by the South Dakota Natural Resources Conservation Service to
follow national policy for making wetland determinations in compliance with the
1985 Farm Bill Swampbuster Act;
(2) Supports efforts by South Dakota farm producers to be treated fairly and equitably
by the Natural Resources Conservation Service, United States Fish and Wildlife
Service, and other state and federal agencies on wetlands issues; and
(3) Supports efforts by South Dakota farm producers to demonstrate sound soil and
water management practices which reduce erosion, protect water quality, and provide
friendly wildlife habitat.
Was read the first time and referred to the Committee on Agriculture and Natural
Resources.
HCR 1006:
A CONCURRENT RESOLUTION,
Requesting the designation of a portion
of U.S. Highway 83 as Pearl Harbor Memorial Highway.
Was read the first time and referred to the Committee on Transportation.
HCR 1012:
A CONCURRENT RESOLUTION,
Urging support for America's sheep
industry.
Was read the first time and referred to the Committee on Agriculture and Natural
Resources.
HCR 1013:
A CONCURRENT RESOLUTION,
Seeking increased federal funding for the
state animal damage control program.
Was read the first time and referred to the Committee on Agriculture and Natural
Resources.
CONSIDERATION OF REPORTS OF COMMITTEES
Sen. Rounds moved that the report of the Standing Committee on
State Affairs on HB 1101 as found on page 446 of the Senate Journal be adopted.
Which motion prevailed and the report was adopted.
SECOND READING OF CONSENT CALENDAR ITEMS
Sen. Hainje requested that HB 1293 be removed from the Consent Calendar.
HB 1026:
FOR AN ACT ENTITLED, An Act to
revise certain bonding procedures and
the annual fee of agents who sell hunting and fishing licenses for the Department of Game, Fish
and Parks.
Was read the second time.
The question being "Shall HB 1026 pass as amended?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; 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.
HB 1187:
FOR AN ACT ENTITLED, An Act to
clarify the time of filing petitions for
adoption.
Was read the second time.
The question being "Shall HB 1187 pass?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; 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.
HB 1193:
FOR AN ACT ENTITLED, An Act to
clarify the authority of federally regulated
charter bus service operators to provide charter bus services to schools.
Was read the second time.
The question being "Shall HB 1193 pass as amended?"
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; 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 85:
FOR AN ACT ENTITLED, An Act to
revise certain powers of the South Dakota
Building Authority, to provide for the establishment of a corporation by the authority, to provide
for the transfer and sale of all future right, title, and interest of certain amounts payable to the
state by various tobacco companies under a master settlement agreement, and to declare an
emergency.
Having had its second reading was up for consideration and final passage.
Sen. Rounds moved that SB 85 be placed to follow HB 1194 on today's calendar.
Which motion prevailed and the bill was so placed.
FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS
HB 1005:
FOR AN ACT ENTITLED, An Act to
conduct a pilot study on agricultural
income value and to create a task force.
Was read the first time and referred to the Committee on Taxation.
HB 1006:
FOR AN ACT ENTITLED, An Act to
appropriate money for a pilot study
concerning the use of agricultural income value as a means to value agricultural land and to
declare an emergency.
Was read the first time and referred to the Committee on Appropriations.
HB 1243:
FOR AN ACT ENTITLED, An Act to
create a tobacco prevention and cessation
program and trust fund and to make an appropriation therefor.
Was read the first time and referred to the Committee on State Affairs.
HB 1244:
FOR AN ACT ENTITLED, An Act to
appropriate money for the children of
alumni scholarships program.
Was read the first time and referred to the Committee on Appropriations.
HB 1261:
FOR AN ACT ENTITLED, An Act to
permit schools to display the Ten
Commandments.
Was read the first time and referred to the Committee on State Affairs.
HB 1301:
FOR AN ACT ENTITLED, An Act to
revise certain provisions related to
meandered and unmeandered lakes.
Was read the first time and referred to the Committee on Agriculture and Natural
Resources.
SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS
HB 1028:
FOR AN ACT ENTITLED, An Act to
permit the provision of certain drugs and
drug samples by physician assistants, nurse practitioners, and nurse midwives.
Was read the second time.
1028jf
Sen. Madden moved that HB 1028 be further amended as follows:
On page
2
,
line
11 of the Senate Health and Human Services committee engrossed bill
,
delete "
a limited supply of
"
.
On page
2
,
line
12
,
overstrike "
including
"
and insert "
for a period of ninety-six hours,
except for
"
.
On page
2
,
line
13
,
after "
34-20B
"
insert "
which may by prescribed or provided
"
.
On page
2
,
line
18
,
after "
record
"
insert "
. The time limits of this subdivision do not apply
to drug samples provided to indigents as defined in
§
28-13-1.1
"
.
On page
4
,
line
21
,
delete "
a limited supply
"
.
On page
4
,
line
21
,
overstrike "
of
"
.
On page
4
,
line
22
,
overstrike "
including
"
and insert "
for a period of ninety-six hours,
except for
"
.
On page
4
,
line
23
,
after "
34-20B
"
insert "
which may be prescribed or provided
"
.
On page
5
,
line
1
,
after "
record
"
insert "
. The time limits of this subdivision do not apply
to drug samples provided to indigents as defined in
§
28-13-1.1
"
.
On page
5
,
line
16
,
delete "
a limited
"
.
On page
5
,
line
17
,
delete "
supply
"
.
On page
5
,
line
17
,
overstrike "
of
"
.
On page
5
,
line
18
,
overstrike "
including
"
and insert "
for a period of ninety-six hours,
except for
"
.
On page
5
,
line
19
,
after "
34-20B
"
insert "
which may be prescribed or provided
"
.
On page
5
,
line
22
,
after "
record.
"
insert "
The time limits of this subdivision do not apply
to drug samples provided to indigents as defined in
§
28-13-1.1.
"
Sen. Moore moved that Sen. Madden's motion that HB 1028 be further amended be laid
on the table.
Sen. Madden requested a roll call vote.
Which request was supported.
The question being on Sen. Moore's motion that Sen. Madden's motion that HB 1028 be
further amended be laid on the table.
And the roll being called:
Yeas 25, Nays 8, Excused 2, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Rebecca);
Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Kleven; Lawler; Moore; Munson
(David); Olson; Paisley; Reedy; Rounds; Staggers; Whiting
Nays were:
Dunn (Jim); Ham; Hutmacher; Kloucek; Lange; Madden; Shoener; Vitter
Excused were:
Symens; Valandra
So the motion having received an affirmative vote of a majority of the members present,
the President declared the motion carried and Sen. Madden's motion was laid on the table.
The question now being "Shall HB 1028 pass as amended?"
And the roll being called:
Yeas 30, Nays 4, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Rebecca);
Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Kleven; Lange; Lawler; Moore;
Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting
Nays were:
Dunn (Jim); Hutmacher; Kloucek; Madden
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.
HB 1092:
FOR AN ACT ENTITLED, An Act to
provide for the regulation of home
inspectors.
Was read the second time.
Sen. Rounds moved that HB 1092 be placed to follow HB 1194 on today's calendar.
Which motion prevailed and the bill was so placed.
HB 1095:
FOR AN ACT ENTITLED, An Act to
authorize professional corporations,
limited liability companies, or limited liability partnerships owned by certain health care
professionals of more than one profession.
Was read the second time.
The question being "Shall HB 1095 pass as amended?"
And the roll being called:
Yeas 28, Nays 5, Excused 2, Absent and Not Voting 0
Yeas were:
Brosz; Brown (Arnold); Daugaard; Dennert; Dunn (Jim); Duxbury; Everist; Flowers; Hainje;
Halverson; Ham; Hutmacher; Kleven; Kloucek; Lange; Lawler; Madden; Moore; Munson
(David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens; Vitter; Whiting
Nays were:
Albers; Benson; Bogue; Drake; Dunn (Rebecca)
Excused were:
Frederick; 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.
HB 1122:
FOR AN ACT ENTITLED, An Act to
require a removal agency to notify a
county sheriff or chief of police after removing certain motor vehicles.
Was read the second time.
1122fb
Sen. Albers moved that HB 1122 be further amended as follows:
On page
1
,
line
7 of the Senate Local Government committee engrossed bill
,
after "
of
"
insert "
the owner, an authorized agent of the owner, or
"
.
Which motion prevailed and HB 1122 was so amended.
The question being "Shall HB 1122 pass as amended?"
And the roll being called:
Yeas 31, Nays 1, Excused 3, Absent and Not Voting 0
Yeas were:
Albers; Benson; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Duxbury;
Everist; Flowers; Hainje; Halverson; Ham; Hutmacher; Kleven; Kloucek; Lange; Lawler;
Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener; Staggers; Symens;
Vitter; Whiting
Nays were:
Bogue
Excused were:
Dunn (Rebecca); Frederick; 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.
HB 1023:
FOR AN ACT ENTITLED, An Act to
prohibit the use of certain equipment in
hunting activities at night, to provide certain exemptions from such prohibition, and to revise
a related penalty.
Was read the second time.
The question being "Shall HB 1023 pass as amended?"
And the roll being called:
Yeas 25, Nays 8, Excused 2, Absent and Not Voting 0
Yeas were:
Albers; Brosz; Brown (Arnold); Daugaard; Dennert; Dunn (Jim); Dunn (Rebecca); Everist;
Flowers; Halverson; Ham; Hutmacher; Lange; Lawler; Madden; Moore; Munson (David);
Olson; Paisley; Reedy; Rounds; Shoener; Symens; Vitter; Whiting
Nays were:
Benson; Bogue; Drake; Duxbury; Hainje; Kleven; Kloucek; Staggers
Excused were:
Frederick; 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.
HB 1096:
FOR AN ACT ENTITLED, An Act to
assign liability for certain attempts to
prevent or delay the control or eradication of weeds or the mountain pine beetle.
Was read the second time.
The question being "Shall HB 1096 pass as amended?"
And the roll being called:
Yeas 18, Nays 16, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brown (Arnold); Dennert; Drake; Dunn (Jim); Frederick; Hainje;
Halverson; Ham; Kleven; Madden; Moore; Munson (David); Reedy; Shoener; Vitter
Nays were:
Brosz; Daugaard; Dunn (Rebecca); Duxbury; Everist; Flowers; Hutmacher; Kloucek; Lange;
Lawler; Olson; Paisley; Rounds; Staggers; Symens; 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.
Sen. Whiting announced his intention to reconsider the vote by which HB 1096 was
passed.
HB 1109:
FOR AN ACT ENTITLED, An Act to
provide for an interagency team review
and a written finding that placement in a Department of Corrections facility is the least
restrictive placement commensurate with the best interests of the child.
Was read the second time.
1109rc
Sen. Rebecca Dunn moved that HB 1109 be amended as follows:
On page
3
,
line
8 of the printed bill
,
delete "
. Subsequent
"
.
On page
3
,
delete line
9
.
On page
3
,
line
10
,
delete "
an interagency review
"
.
On page
3
,
after line
18
,
insert:
"
Section 2. That chapter 26-8B be amended by adding thereto a NEW SECTION to read as
follows:
If any child in need of supervision, as defined in
§
26-8B-2, has been in the custody of the
Department of Corrections for a continuous period of ninety days, the department shall, before
thirty additional days have elapsed, bring the child before the circuit court of the county in
which the child was originally adjudicated. The court shall conduct a dispositional review
hearing, at which time the court may restore the child to the custody of either or both parents,
affirm the custody of the Department of Corrections, or enter any other appropriate decree as
provided for in
§
26-8B-6.
Section 3. That chapter 26-8B be amended by adding thereto a NEW SECTION to read as
follows:
The Department of Corrections shall give timely notice to the parents of any child in need
of supervision of the time, place, and nature of any dispositional review hearing as provided for
in section 1 or 3 of this Act. The court shall hear any parent who appears at such hearing, and
the court may, at its discretion, order the attendance of any parent or other relevant witness if,
in the opinion of the court, the presence or testimony of the parent or other witness is necessary
or appropriate.
Section 4. That chapter 26-8B be amended by adding thereto a NEW SECTION to read as
follows:
If, subsequent to a hearing pursuant to section 1 of this Act, any child in need of supervision,
as defined in
§
26-8B-2, continues in the custody of the Department of Corrections for a
continuous period of three hundred days, the department shall, before sixty-five additional days
have elapsed, bring the child before the circuit court of the county in which the child was
originally adjudicated. The court shall conduct a dispositional review hearing, at which time the
court may restore the child to the custody of either or both parents, affirm the custody of the
Department of Corrections, or enter any other appropriate decree as provided for in
§
26-8B-6.
Section 5. That chapter 26-8B be amended by adding thereto a NEW SECTION to read as
follows:
The provisions of this Act do not apply to children in need of supervision while in any
mental health program, chemical dependency treatment program, or private sector placement.
"
Sen. Frederick moved the previous question.
Which motion prevailed.
Sen. Rounds requested a roll call vote.
Which request was supported.
The question being on Sen. Rebecca Dunn's motion that HB 1109 be amended.
And the roll being called:
Yeas 14, Nays 20, Excused 1, Absent and Not Voting 0
Yeas were:
Dennert; Dunn (Rebecca); Duxbury; Flowers; Ham; Hutmacher; Kloucek; Lange; Lawler;
Moore; Olson; Reedy; Staggers; Symens
Nays were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Drake; Dunn (Jim); Everist;
Frederick; Hainje; Halverson; Kleven; Madden; Munson (David); Paisley; Rounds; Shoener;
Vitter; Whiting
Excused were:
Valandra
So the motion not having received an affirmative vote of a majority of the members
present, the President declared the motion lost.
1109xa
Sen. Flowers moved that HB 1109 be amended as follows:
On page
3
,
line
9 of the printed bill
,
after "
may
"
insert "
not
"
.
Sen. Flowers requested a roll call vote.
Which request was supported.
The question being on Sen. Flowers' motion that HB 1109 be amended.
And the roll being called:
Yeas 13, Nays 21, Excused 1, Absent and Not Voting 0
Yeas were:
Dunn (Rebecca); Duxbury; Flowers; Ham; Hutmacher; Kloucek; Lange; Lawler; Moore; Olson;
Reedy; Staggers; Symens
Nays were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim);
Everist; Frederick; Hainje; Halverson; Kleven; Madden; Munson (David); Paisley; Rounds;
Shoener; Vitter; Whiting
Excused were:
Valandra
So the motion not having received an affirmative vote of a majority of the members
present, the President declared the motion lost.
The question now being "Shall HB 1109 pass?"
And the roll being called:
Yeas 33, Nays 1, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds; Shoener;
Staggers; Symens; Vitter; Whiting
Nays were:
Lawler
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.
HB 1175:
FOR AN ACT ENTITLED, An Act to
authorize the Division of Insurance to
promulgate rules regarding the privacy of medical records.
Was read the second time.
Sen. Moore moved that HB 1175 be deferred until Tuesday, February 15, the 26th
legislative day.
Which motion prevailed and the bill was so deferred.
HB 1194:
FOR AN ACT ENTITLED, An Act to
provide for the issuance of a protection
order in the case of certain crimes of violence or assaults.
Was read the second time.
Sen. Daugaard moved that HB 1194 be deferred until Tuesday, February 15, the 26th
legislative day.
Which motion prevailed and the bill was so deferred.
HB 1092:
FOR AN ACT ENTITLED, An Act to
provide for the regulation of home
inspectors.
Having had its second reading was up for consideration and final passage.
The question being "Shall HB 1092 pass as amended?"
And the roll being called:
Yeas 20, Nays 14, Excused 1, Absent and Not Voting 0
Yeas were:
Brosz; Brown (Arnold); Daugaard; Dunn (Jim); Dunn (Rebecca); Duxbury; Everist; Hainje;
Halverson; Ham; Hutmacher; Madden; Munson (David); Olson; Paisley; Reedy; Rounds;
Shoener; Symens; Whiting
Nays were:
Albers; Benson; Bogue; Dennert; Drake; Flowers; Frederick; Kleven; Kloucek; Lange; Lawler;
Moore; Staggers; Vitter
Excused were:
Valandra
So the bill not having received an affirmative vote of a two-thirds majority of the members-
elect, the President declared the bill lost.
There being no objection, the Senate reverted to Order of Business No. 5.
REPORTS OF STANDING COMMITTEES
MADAM PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration HB
1055, 1112, 1138, 1167, 1284, and 1285 and returns the same with the recommendation that
said bills do pass.
Also MADAM PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration HB
1238 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 HB
1111 and returns the same with the recommendation that said bill be amended as follows:
1111rc
On page
1
,
line
6 of the House engrossed bill
,
delete "
Class 2
"
and insert "
Class 1
"
.
And that as so amended said bill do pass.
Also MADAM PRESIDENT:
The Committee on Judiciary respectfully reports that it has had under consideration HB
1165 and returns the same with the recommendation that said bill be amended as follows:
1165ra
On page
1
,
line
5 of the printed bill
,
delete "
knowing that he or she is legally married to
another presently
"
.
On page
1
,
line
6
,
delete "
living person
"
.
1165rc
On page
1
,
line
15 of the printed bill
,
delete "
previously
"
and insert "
presently
"
.
On page
1
,
line
16
,
delete "
previous
"
.
1165rb
On page
1
,
delete line
7 of the printed bill
,
and insert:
"
(1) Any person
who was previously married and
,
whose husband or wife
by that former
"
.
On page
1
,
line
8
,
overstrike "
marriage
"
.
1165rd
On page
1
,
delete line
10 of the printed bill
,
and insert:
"
(2) Any person
who was previously married and
,
whose husband or wife
by that former
"
.
On page
1
,
line
11 of the printed bill
,
overstrike "
marriage
"
.
On page
1
,
delete line
13 of the printed bill
,
and insert:
"
(3) Any person
who was previously married and
,
whose marriage has been pronounced
"
.
And that as so amended said bill do pass and be placed on the Consent Calendar.
Respectfully submitted,
Fred Whiting, Chair
Also MADAM PRESIDENT:
The Committee on Local Government respectfully reports that it has had under
consideration HB 1010, 1108, 1146, and 1191 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 1202 and 1256 and returns the same with the recommendation that said bills
do pass and be placed on the Consent Calendar.
Respectfully submitted,
Arlene H. Ham, Chair
Also MADAM PRESIDENT:
The Committee on Health and Human Services respectfully reports that it has had under
consideration HB 1279 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 Health and Human Services respectfully reports that it has had under
consideration HB 1280 and returns the same with the recommendation that said bill be amended
as follows:
1280fa
On page
1
,
line
12 of the printed bill
,
delete "
within forty-eight hours
"
.
And that as so amended said bill do pass and be placed on the Consent Calendar.
Respectfully submitted,
Arnold M. Brown, Chair
SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS
Sen. Rounds moved that the Senate do now recess until 4:40 p.m., which motion prevailed
and at 4:25 p.m., the Senate recessed.
RECESS
The Senate reconvened at 4:40 p.m., the President presiding.
SB 85:
FOR AN ACT ENTITLED, An Act to
revise certain powers of the South Dakota
Building Authority, to provide for the establishment of a corporation by the authority, to provide
for the transfer and sale of all future right, title, and interest of certain amounts payable to the
state by various tobacco companies under a master settlement agreement, and to declare an
emergency.
Having had its second reading was up for consideration and final passage.
85jc
Sen. Rounds moved that SB 85 be further amended as follows:
On the Senate State Affairs committee engrossed bill,
delete everything after the enacting
clause and insert:
"
Section
1.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
Terms used in this Act mean:
(1) "Authority," the South Dakota Health and Educational Facilities Authority, a body
corporate and politic, organized and existing under chapter 1-16A;
(2) "Bonds," bonds, bond anticipation notes, notes, certificates of ownership or
indebtedness, or other obligations issued, incurred, or otherwise created pursuant to
this Act and payable directly or indirectly out of or representing an interest in tobacco
settlement revenues or other rights under or with respect to the master settlement
agreement;
(3) "Corporation," the special purpose body corporate and politic established by the
authority by resolution as provided in section 3 of this Act;
(4) "Master settlement agreement," the master settlement agreement entered into on
November 23, 1998, by attorneys general from the several states, including the State
of South Dakota, and various tobacco companies, as amended, supplemented, or
restated;
(5) "Master settlement escrow agent," the escrow agent under the master settlement
agreement;
(6) "Net proceeds of bonds," the proceeds of bonds issued by the corporation under this
Act less any amounts applied or to be applied to pay transaction and administrative
expenses and to fund any reserves deemed necessary or appropriate by the
corporation;
(7) "Net proceeds of sale of tobacco settlement revenues," the funds and other
consideration received by the State of South Dakota from any sale, conveyance, or
other transfer pursuant to section 2 of this Act less any amounts applied or to be
applied to pay transaction and administrative expenses and to fund any reserves;
(8) "Permitted investments," any investment authorized by
§
§
4-5-23 and 4-5-26 and
noncollateralized direct obligations of any bank or savings institution, insurance
company, or bank or insurance holding company if such institution or holding
company is rated in the highest two quality categories by a nationally recognized
rating agency;
(9) "Tobacco settlement revenues," any amount now or hereafter payable to the State of
South Dakota under or in connection with the Master Settlement Agreement;
(10) "Tobacco settlement trust fund," the State of South Dakota tobacco settlement trust
fund created pursuant to section 22 of this Act;
(11) "Tobacco settlement interest fund," the fund created by section 23 of this Act.
Section
2.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
All or any portion of the right, title, and interest of the State of South Dakota in, to and
under the master settlement agreement, to receive or collect tobacco settlement revenues, may
be sold, conveyed, or otherwise transferred by the state to the authority or to a corporation
established by the authority pursuant to this Act so long as the net proceeds of sale of tobacco
settlement revenues are:
(1) Deposited to the tobacco settlement trust fund;
(2) Deposited with or for the benefit of the authority for the purpose of paying all or any
part of the cost of one or a combination of facilities permitted under chapter 1-16A;
(3) Paid to or for the benefit of the tobacco settlement trust and its assets.
No project may be undertaken by the authority with funds deposited pursuant to subdivision
(2) of this section unless the facilities or project have been approved by the Legislature. If any
proceeds of the sale are deposited with or for the benefit of the South Dakota Health and
Educational Facilities Authority pursuant to subdivision (2) of this section, then the South
Dakota Health and Educational Facilities Authority shall submit a written report to the
Legislature advising the Legislature of the deposit. Any sale, conveyance, or other transfer of
tobacco settlement revenues shall be evidenced by an instrument or agreement in writing signed
on behalf of the state by the Governor. The Governor shall file a certified copy of any
instrument or agreement, together with a report indicating the application of the net proceeds
of the sale of tobacco settlement proceeds with the Legislature. Each instrument or agreement
may include an irrevocable direction to the master settlement escrow agent to pay all or a
specified portion of amounts due to the State of South Dakota under or in connection with the
master settlement agreement, including, without limitation, the tobacco settlement revenues, as
have been sold, conveyed, or otherwise transferred directly to or upon the order of the authority
or corporation or any trustee under an indenture or other agreement securing any bonds of the
corporation or the authority issued, incurred, or created for the purpose of raising funds to pay
the purchase price to the state. Upon the filing, the sale, conveyance, or other transfer is a true
sale and absolute conveyance of all right, title, and interest therein described in accordance with
the terms thereof, valid, binding, and enforceable in accordance with the terms thereof and the
instrument or agreements and any related instrument, agreement, or other arrangement,
including any pledge, grant of security interest, or other encumbrance made by the corporation
or the authority to secure any bonds issued, incurred, or created by the corporation or the
authority, are not subject to disavowal, disaffirmance, cancellation, or avoidance by reason of
insolvency of any party, lack of consideration or any other fact, occurrence, or rule of law.
Section
3.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The authority may establish by resolution a special purpose corporation which shall be body
corporate and politic and instrumentality of, but separate and apart from, the State of South
Dakota and the authority. The corporation shall be established for the express limited public
purposes set forth in this Act and no part of the net earnings of the corporation may inure to any
private individual.
Section
4.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The corporation shall be governed by a board of directors consisting of the members of the
authority and two additional directors appointed by the Governor, which directors shall be
independent from the state. The resolution establishing the corporation shall serve as the charter
of the corporation and may be amended from time to time by the authority, but the resolution
shall provide that the power and the authority of the corporation is subject to the terms,
conditions, and limitations of this Act and any applicable covenants or agreements of the
corporation in any indenture or other agreement relating to any then outstanding bonds. The
corporation may enter into contracts regarding any matter connected with any corporate purpose
within the objects and purposes of this Act.
Section
5.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The authority and corporation may delegate by resolution to one or more officers or
employees of the authority or corporation any powers and duties as it may deem proper.
Section
6.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The corporation may pledge as security for any bonds the rights under the master settlement
agreement held by the corporation, including the rights to receive or collect tobacco settlement
revenues, the proceeds thereof, or moneys or other funds deposited with or held by the
corporation. Any pledge made by the corporation is valid and binding from the time the pledge
is made. The property, revenues, moneys, and other funds so pledged and thereafter held or
received by the corporation shall immediately be subject to the lien of such pledge without any
physical delivery thereof or further act and subject only to the provisions of prior agreements.
The lien of such pledge shall be valid and binding as against all parties having claims of any
kind in tort, contract, or otherwise against the corporation irrespective of whether the parties
have notice thereof. No ordinance, resolution, trust agreement, or other instrument by which the
pledge is created need be filed or recorded except in the records of the corporation.
Section
7.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
In connection with the issuance of bonds, the corporation may enter into arrangements to
provide additional security and liquidity for the bonds. The arrangements may include, without
limitation, bond insurance, letters of credit, and lines of credit by which the corporation may
borrow funds to pay or redeem its bonds and purchase or remarketing arrangements for assuring
the ability of owners of the bonds to sell or have redeemed their bonds. The corporation may
enter into contracts and may agree to pay fees to persons providing the arrangements, including
from bond proceeds.
Section
8.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The resolution authorizing the issuance of its bonds or the indenture or other agreement
approved by the resolution may provide that interest rates may vary from time to time
depending upon criteria established by the corporation, which may include, without limitation,
a variation in interest rates as may be necessary to cause the bonds to be remarketable from time
to time at a price equal to their principal amount, and may provide for appointment of a national
banking association, bank, trust company, investment banker, or other financial institution to
serve as a remarketing agent in that connection. The indenture or other agreement with respect
to the bonds may provide that alternative interest rates or provisions do apply during such times
as the bonds are held by a person providing a letter of credit or other credit enhancement
arrangement for the bonds.
Section
9.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
In connection with the bonds under this Act, the corporation may enter into contracts that
it determines necessary or appropriate to permit it to manage payment or interest rate risk. These
contracts may include interest rate exchange agreements, contracts providing for payment or
receipt of funds based on levels of or changes in interest rates, contracts to exchange cash flows
or series of payments, and contracts incorporating interest rate caps, collars, floors, hedges, or
locks.
Section
10.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation shall not have the authority to file a voluntary petition under or be or
become a debtor or bankrupt under the federal bankruptcy code or any other federal or state
bankruptcy, insolvency, or moratorium law or statute. Nor may any public officer, organization,
entity or other person authorize the corporation to be or become a debtor or bankrupt under the
federal bankruptcy code or any other federal or state bankruptcy, insolvency, or moratorium law
or statute.
Section
11.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation may not guarantee the debts of another. No indebtedness, bonds or
obligation, issued, incurred, or created by the State of South Dakota or any state agency or
instrumentality may be or become a lien, charge, or liability against the corporation or the
property or funds of the corporation except for debts incurred directly by the corporation.
Section
12.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The purposes of the corporation established by the authority pursuant to this Act are to:
(1) Purchase, acquire, own, pledge, encumber, or otherwise transfer all right, title, and
interest of the state in, to, and under the master settlement agreement, including all
right, title, and interest to receive or collect tobacco settlement revenues;
(2) Raise funds through the issuance of bonds or other obligations or evidences of
indebtedness or ownership or through the sale, transfer, pledge, encumbrance,
securitization, factoring, or other conveyance of the rights described above in
subdivision (1) of this section for the purposes described in this Act;
(3) Serve the Legislature by making reports concerning the foregoing;
(4) Sue and be sued and to prosecute and defend, at law or in equity, in any court having
jurisdiction of the subject matter and of the parties;
(5) Have and to use a corporate seal and to alter the same at pleasure;
(6) Maintain an office at any place the authority by resolution may designate; and
(7) Do all things necessary and convenient to carry out the purposes of this Act.
Section
13.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
In addition to the grant of power and authority contained elsewhere in this Act, the
corporation is vested with the same power and authority and is subject to the same limitations
and conditions, as are applicable to the authority pursuant to chapter 1-16A, except such power
and authority shall be exercised with respect to and shall be limited to the purposes of the
corporation set forth in section 12 of this Act. The corporation may not engage in any unrelated
activities.
Section
14.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
No bond of the corporation issued, incurred, or created under this Act may be or become a
lien, charge, or liability against the State of South Dakota or the authority, nor against the
property or funds of the State of South Dakota or the authority within the meaning of the
Constitution or statutes of South Dakota.
Section
15.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The State of South Dakota pledges to and agrees with the holders of the bonds, notes,
certificates, or other obligations issued, incurred, or created by the corporation under this Act
that the state will not limit or alter the rights and powers vested in the corporation by this Act
so as to impair the terms of any contract made by the corporation with those holders or in any
way impair the rights and remedies of those holders until the bonds, notes, certificates, or other
obligations, together with interest thereon, interest on any unpaid installments of interest, and
all costs and expenses in connection with any action or proceedings by or on behalf of those
holders are fully met and discharged. In addition, the state pledges to and agrees with the
holders of the bonds, notes, certificates, or other obligations issued, incurred, or created by the
corporation under this Act that the state will not limit or alter the basis on which tobacco
settlement revenues are to be paid to the corporation or the authority so as to impair the terms
of any such contract. The corporation is authorized to include these pledges and agreements of
the state in any contract with the holders of bonds, notes, certificates, or other obligations
issued, incurred, or created by the corporation under this Act.
Section
16.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
Neither the State of South Dakota nor the authority is liable on bonds, notes, certificates, or
other obligations issued, incurred, or created by the corporation under this Act. Such bonds,
notes, certificates, or other obligations are not a debt of the state or the authority, and this Act
may not be construed as a guarantee by the state or the authority of the debts of the corporation.
The bonds, notes, certificates, or other securities shall contain a statement to this effect on the
face of the bonds, notes, certificates, or other obligations.
Section
17.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The authority is not liable for any bond, note, certificate, or other obligation issued, incurred,
or created by the corporation under this Act or for any act or failure to act of the corporation and
the corporation is not liable for any obligation of the authority or for any act or failure to act by
the authority.
Section
18.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation is hereby declared to be performing a public function on behalf of the state
and to be a public instrumentality of the state. Accordingly, the income of the corporation, and
all properties at any time owned by the corporation, are exempt from all taxation in the State
of South Dakota.
Section
19.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
For purposes of chapter 47-31A, any bonds, notes, certificates, or other obligations issued,
incurred, or created by the corporation under this Act are deemed to be securities issued by a
public instrumentality of the State of South Dakota.
Section
20.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation may employ attorneys, accountants, tobacco industry consultants and
financial experts, managers, and such other employees and agents as may be necessary and fix
their compensation.
Section
21.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation and authority may charge participating health institutions, participating
educational institutions, and other public bodies the reasonable expenses of the corporation and
authority incurred in connection with the exercise of the powers and authority provided in
chapter 1-16A.
Section
22.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The tobacco settlement trust fund is hereby established in the state treasury. The net
proceeds of sale of tobacco revenues less any amounts deposited with or for the benefit of the
authority pursuant to the provisions of section 2 of this Act, shall be deposited in the tobacco
settlement trust fund. In addition, any residual interest in or to tobacco settlement revenues or
other rights under the master settlement agreement, to the extent not required to make payments
with respect to any bonds of the corporation, are payable to or for the benefit of the tobacco
settlement trust fund. The principal of the tobacco settlement trust fund may not be expended
except for costs and expenses incurred in investing or otherwise administering the tobacco
settlement trust and its assets. The amounts in the tobacco settlement trust fund shall be invested
in permitted investments and otherwise pursuant to
§
§
4-5-23 and 4-5-26. An amount equal to
the interest or other investment income earned on money in the trust fund each fiscal year shall
be transferred to the tobacco settlement interest fund created in section 23 of this Act.
Section
23.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The tobacco settlement interest fund is established in the state treasury. The money in the
tobacco settlement interest fund shall remain in the fund until appropriated by the Legislature.
The amounts in the tobacco settlement interest fund shall be invested in permitted investments
and otherwise pursuant to
§
§
4-5-23 and 4-5-26.
Section
24.
That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The Legislature hereby finds and declares that the state has a public purpose and goal of
reduction of smoking and improvement of the public health of its citizens which purpose and
goal may generally result in a direct or indirect reduction of tobacco consumption and the
potential reduction of tobacco settlement revenues. The Legislature hereby further declares that
it is a valid governmental purpose and in the best interest of the state and its citizens to transfer
the investment risks inherent in the master settlement agreement, including the risk described
above in this section, to third parties by a sale, conveyance, or other transfer of all or a portion
of the state's right, title, and interest in the right to receive or collect state tobacco revenues
under, in connection with or with respect to the master settlement agreement and the issuance
of bonds to finance such a transaction.
Section
25.
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.
"
85jd
Sen. Rounds moved as a substitute motion that SB 85 be further amended as follows:
On the Senate State Affairs committee engrossed bill,
delete everything after the enacting
clause and insert:
"
Section 1. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
Terms used in this Act mean:
(1) "Authority," the South Dakota Health and Educational Facilities Authority, a body
corporate and politic, organized and existing under chapter 1-16A;
(2) "Bonds," bonds, bond anticipation notes, notes, certificates of ownership or
indebtedness, or other obligations issued, incurred, or otherwise created pursuant to
this Act and payable directly or indirectly out of or representing an interest in tobacco
settlement revenues or other rights under or with respect to the master settlement
agreement;
(3) "Corporation," the special purpose body corporate and politic established by the
authority by resolution as provided in section 3 of this Act;
(4) "Master settlement agreement," the master settlement agreement entered into on
November 23, 1998, by attorneys general from the several states, including the State
of South Dakota, and various tobacco companies, as amended, supplemented, or
restated;
(5) "Master settlement escrow agent," the escrow agent under the master settlement
agreement;
(6) "Net proceeds of bonds," the proceeds of bonds issued by the corporation under this
Act less any amounts applied or to be applied to pay transaction and administrative
expenses and to fund any reserves deemed necessary or appropriate by the
corporation;
(7) "Net proceeds of sale of tobacco settlement revenues," the funds and other
consideration received by the State of South Dakota from any sale, conveyance, or
other transfer pursuant to section 2 of this Act less any amounts applied or to be
applied to pay transaction and administrative expenses and to fund any reserves;
(8) "Permitted investments," any investment authorized by
§
§
4-5-23 and 4-5-26 and
noncollateralized direct obligations of any bank or savings institution, insurance
company, or bank or insurance holding company if such institution or holding
company is rated in the highest two quality categories by a nationally recognized
rating agency;
(9) "Tobacco settlement revenues," any amount now or hereafter payable to the State of
South Dakota under or in connection with the Master Settlement Agreement;
(10) "Tobacco settlement trust fund," the State of South Dakota tobacco settlement trust
fund created pursuant to section 22 of this Act;
(11) "Tobacco settlement interest fund," the fund created by section 23 of this Act.
Section 2. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
All or any portion of the right, title, and interest of the State of South Dakota in, to and
under the master settlement agreement, to receive or collect tobacco settlement revenues, may
be sold, conveyed, or otherwise transferred by the state to the authority or to a corporation
established by the authority pursuant to this Act so long as the net proceeds of sale of tobacco
settlement revenues are:
(1) Deposited to the tobacco settlement trust fund; or
(2) Paid to or for the benefit of the tobacco settlement trust and its assets.
Any sale, conveyance, or other transfer of tobacco settlement revenues shall be evidenced
by an instrument or agreement in writing signed on behalf of the state by the Governor. The
Governor shall file a certified copy of any instrument or agreement, together with a report
indicating the application of the net proceeds of the sale of tobacco settlement proceeds with the
Legislature. Each instrument or agreement may include an irrevocable direction to the master
settlement escrow agent to pay all or a specified portion of amounts due to the State of South
Dakota under or in connection with the master settlement agreement, including, without
limitation, the tobacco settlement revenues, as have been sold, conveyed, or otherwise
transferred directly to or upon the order of the authority or corporation or any trustee under an
indenture or other agreement securing any bonds of the corporation or the authority issued,
incurred, or created for the purpose of raising funds to pay the purchase price to the state. Upon
the filing, the sale, conveyance, or other transfer is a true sale and absolute conveyance of all
right, title, and interest therein described in accordance with the terms thereof, valid, binding,
and enforceable in accordance with the terms thereof and the instrument or agreements and any
related instrument, agreement, or other arrangement, including any pledge, grant of security
interest, or other encumbrance made by the corporation or the authority to secure any bonds
issued, incurred, or created by the corporation or the authority, are not subject to disavowal,
disaffirmance, cancellation, or avoidance by reason of insolvency of any party, lack of
consideration or any other fact, occurrence, or rule of law.
Section 3. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The authority may establish by resolution a special purpose corporation which shall be body
corporate and politic and instrumentality of, but separate and apart from, the State of South
Dakota and the authority. The corporation shall be established for the express limited public
purposes set forth in this Act and no part of the net earnings of the corporation may inure to any
private individual.
Section 4. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The corporation shall be governed by a board of directors consisting of the members of the
authority and two additional directors appointed by the Governor, which directors shall be
independent from the state. The resolution establishing the corporation shall serve as the charter
of the corporation and may be amended from time to time by the authority, but the resolution
shall provide that the power and the authority of the corporation is subject to the terms,
conditions, and limitations of this Act and any applicable covenants or agreements of the
corporation in any indenture or other agreement relating to any then outstanding bonds. The
corporation may enter into contracts regarding any matter connected with any corporate purpose
within the objects and purposes of this Act.
Section 5. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The authority and corporation may delegate by resolution to one or more officers or
employees of the authority or corporation any powers and duties as it may deem proper.
Section 6. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The corporation may pledge as security for any bonds the rights under the master settlement
agreement held by the corporation, including the rights to receive or collect tobacco settlement
revenues, the proceeds thereof, or moneys or other funds deposited with or held by the
corporation. Any pledge made by the corporation is valid and binding from the time the pledge
is made. The property, revenues, moneys, and other funds so pledged and thereafter held or
received by the corporation shall immediately be subject to the lien of such pledge without any
physical delivery thereof or further act and subject only to the provisions of prior agreements.
The lien of such pledge shall be valid and binding as against all parties having claims of any
kind in tort, contract, or otherwise against the corporation irrespective of whether the parties
have notice thereof. No ordinance, resolution, trust agreement, or other instrument by which the
pledge is created need be filed or recorded except in the records of the corporation.
Section 7. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
In connection with the issuance of bonds, the corporation may enter into arrangements to
provide additional security and liquidity for the bonds. The arrangements may include, without
limitation, bond insurance, letters of credit, and lines of credit by which the corporation may
borrow funds to pay or redeem its bonds and purchase or remarketing arrangements for assuring
the ability of owners of the bonds to sell or have redeemed their bonds. The corporation may
enter into contracts and may agree to pay fees to persons providing the arrangements, including
from bond proceeds.
Section 8. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
The resolution authorizing the issuance of its bonds or the indenture or other agreement
approved by the resolution may provide that interest rates may vary from time to time
depending upon criteria established by the corporation, which may include, without limitation,
a variation in interest rates as may be necessary to cause the bonds to be remarketable from time
to time at a price equal to their principal amount, and may provide for appointment of a national
banking association, bank, trust company, investment banker, or other financial institution to
serve as a remarketing agent in that connection. The indenture or other agreement with respect
to the bonds may provide that alternative interest rates or provisions do apply during such times
as the bonds are held by a person providing a letter of credit or other credit enhancement
arrangement for the bonds.
Section 9. That chapter 1-16A be amended by adding thereto a NEW SECTION to read as
follows:
In connection with the bonds under this Act, the corporation may enter into contracts that
it determines necessary or appropriate to permit it to manage payment or interest rate risk. These
contracts may include interest rate exchange agreements, contracts providing for payment or
receipt of funds based on levels of or changes in interest rates, contracts to exchange cash flows
or series of payments, and contracts incorporating interest rate caps, collars, floors, hedges, or
locks.
Section 10. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation shall not have the authority to file a voluntary petition under or be or
become a debtor or bankrupt under the federal bankruptcy code or any other federal or state
bankruptcy, insolvency, or moratorium law or statute. Nor may any public officer, organization,
entity or other person authorize the corporation to be or become a debtor or bankrupt under the
federal bankruptcy code or any other federal or state bankruptcy, insolvency, or moratorium law
or statute.
Section 11. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation may not guarantee the debts of another. No indebtedness, bonds or
obligation, issued, incurred, or created by the State of South Dakota or any state agency or
instrumentality may be or become a lien, charge, or liability against the corporation or the
property or funds of the corporation except for debts incurred directly by the corporation.
Section 12. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The purposes of the corporation established by the authority pursuant to this Act are to:
(1) Purchase, acquire, own, pledge, encumber, or otherwise transfer all right, title, and
interest of the state in, to, and under the master settlement agreement, including all
right, title, and interest to receive or collect tobacco settlement revenues;
(2) Raise funds through the issuance of bonds or other obligations or evidences of
indebtedness or ownership or through the sale, transfer, pledge, encumbrance,
securitization, factoring, or other conveyance of the rights described above in
subdivision (1) of this section for the purposes described in this Act;
(3) Serve the Legislature by making reports concerning the foregoing;
(4) Sue and be sued and to prosecute and defend, at law or in equity, in any court having
jurisdiction of the subject matter and of the parties;
(5) Have and to use a corporate seal and to alter the same at pleasure;
(6) Maintain an office at any place the authority by resolution may designate; and
(7) Do all things necessary and convenient to carry out the purposes of this Act.
Section 13. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
In addition to the grant of power and authority contained elsewhere in this Act, the
corporation is vested with the same power and authority and is subject to the same limitations
and conditions, as are applicable to the authority pursuant to chapter 1-16A, except such power
and authority shall be exercised with respect to and shall be limited to the purposes of the
corporation set forth in section 12 of this Act. The corporation may not engage in any unrelated
activities.
Section 14. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
No bond of the corporation issued, incurred, or created under this Act may be or become a
lien, charge, or liability against the State of South Dakota or the authority, nor against the
property or funds of the State of South Dakota or the authority within the meaning of the
Constitution or statutes of South Dakota.
Section 15. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The State of South Dakota pledges to and agrees with the holders of the bonds, notes,
certificates, or other obligations issued, incurred, or created by the corporation under this Act
that the state will not limit or alter the rights and powers vested in the corporation by this Act
so as to impair the terms of any contract made by the corporation with those holders or in any
way impair the rights and remedies of those holders until the bonds, notes, certificates, or other
obligations, together with interest thereon, interest on any unpaid installments of interest, and
all costs and expenses in connection with any action or proceedings by or on behalf of those
holders are fully met and discharged. In addition, the state pledges to and agrees with the
holders of the bonds, notes, certificates, or other obligations issued, incurred, or created by the
corporation under this Act that the state will not limit or alter the basis on which tobacco
settlement revenues are to be paid to the corporation or the authority so as to impair the terms
of any such contract. The corporation is authorized to include these pledges and agreements of
the state in any contract with the holders of bonds, notes, certificates, or other obligations
issued, incurred, or created by the corporation under this Act.
Section 16. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
Neither the State of South Dakota nor the authority is liable on bonds, notes, certificates, or
other obligations issued, incurred, or created by the corporation under this Act. Such bonds,
notes, certificates, or other obligations are not a debt of the state or the authority, and this Act
may not be construed as a guarantee by the state or the authority of the debts of the corporation.
The bonds, notes, certificates, or other securities shall contain a statement to this effect on the
face of the bonds, notes, certificates, or other obligations.
Section 17. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The authority is not liable for any bond, note, certificate, or other obligation issued, incurred,
or created by the corporation under this Act or for any act or failure to act of the corporation and
the corporation is not liable for any obligation of the authority or for any act or failure to act by
the authority.
Section 18. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation is hereby declared to be performing a public function on behalf of the state
and to be a public instrumentality of the state. Accordingly, the income of the corporation, and
all properties at any time owned by the corporation, are exempt from all taxation in the State
of South Dakota.
Section 19. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
For purposes of chapter 47-31A, any bonds, notes, certificates, or other obligations issued,
incurred, or created by the corporation under this Act are deemed to be securities issued by a
public instrumentality of the State of South Dakota.
Section 20. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation may employ attorneys, accountants, tobacco industry consultants and
financial experts, managers, and such other employees and agents as may be necessary and fix
their compensation.
Section 21. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The corporation and authority may charge participating health institutions, participating
educational institutions, and other public bodies the reasonable expenses of the corporation and
authority incurred in connection with the exercise of the powers and authority provided in
chapter 1-16A.
Section 22. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The tobacco settlement trust fund is hereby established in the state treasury. The net
proceeds of sale of tobacco revenues shall be deposited in the tobacco settlement trust fund. In
addition, any residual interest in or to tobacco settlement revenues or other rights under the
master settlement agreement, to the extent not required to make payments with respect to any
bonds of the corporation, are payable to or for the benefit of the tobacco settlement trust fund.
The principal of the tobacco settlement trust fund may not be expended except for costs and
expenses incurred in investing or otherwise administering the tobacco settlement trust and its
assets. The amounts in the tobacco settlement trust fund shall be invested in permitted
investments and otherwise pursuant to
§
§
4-5-23 and 4-5-26. An amount equal to the interest
or other investment income earned on money in the trust fund each fiscal year shall be
transferred to the tobacco settlement interest fund created in section 23 of this Act.
Section 23. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The tobacco settlement interest fund is established in the state treasury. The money in the
tobacco settlement interest fund shall remain in the fund until appropriated by the Legislature.
The amounts in the tobacco settlement interest fund shall be invested in permitted investments
and otherwise pursuant to
§
§
4-5-23 and 4-5-26.
Section 24. That chapter 1-16A be amended by adding thereto a NEW SECTION to read
as follows:
The Legislature hereby finds and declares that the state has a public purpose and goal of
reduction of smoking and improvement of the public health of its citizens which purpose and
goal may generally result in a direct or indirect reduction of tobacco consumption and the
potential reduction of tobacco settlement revenues. The Legislature hereby further declares that
it is a valid governmental purpose and in the best interest of the state and its citizens to transfer
the investment risks inherent in the master settlement agreement, including the risk described
above in this section, to third parties by a sale, conveyance, or other transfer of all or a portion
of the state's right, title, and interest in the right to receive or collect state tobacco revenues
under, in connection with or with respect to the master settlement agreement and the issuance
of bonds to finance such a transaction.
Section 25. 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.
"
Which motion prevailed and SB 85 was so amended.
85jb
Sen. Rounds moved that SB 85 be further amended as follows:
In the Hoghouse amendment for SB 85, delete Section 25.
Which motion prevailed and SB 85 was so amended.
Sen. Rounds moved that the rules be suspended for the sole purpose of deferring further
consideration on SB 85, as amended, until Tuesday, February 15, the 26th legislative day.
The question being on Sen. Rounds' motion that the rules be suspended for the sole purpose
of deferring further consideration on SB 85, as amended, until Tuesday, February 15, the 26th
legislative day.
And the roll being called:
Yeas 34, Nays 0, Excused 1, Absent and Not Voting 0
Yeas were:
Albers; Benson; Bogue; Brosz; Brown (Arnold); Daugaard; Dennert; Drake; Dunn (Jim); Dunn
(Rebecca); Duxbury; Everist; Flowers; Frederick; Hainje; Halverson; Ham; Hutmacher; Kleven;
Kloucek; Lange; Lawler; Madden; Moore; Munson (David); Olson; Paisley; Reedy; Rounds;
Shoener; Staggers; Symens; Vitter; Whiting
Excused were:
Valandra
So the motion having received an affirmative vote of a majority of the members-elect, the
President declared the motion carried and the bill was so deferred.
SIGNING OF BILLS
The President publicly read the title to
HB 1004:
FOR AN ACT ENTITLED, An Act to
repeal and revise certain provisions
concerning the annual assessment of property.
HB 1015:
FOR AN ACT ENTITLED, An Act to
revise certain provisions relating to open
enrollment.
HB 1022:
FOR AN ACT ENTITLED, An Act to
revise and repeal certain hunting,
trapping, and fishing activities, restrictions, and prohibitions, and certain game and fish storage
and transportation requirements, and to provide for a penalty.
HB 1025:
FOR AN ACT ENTITLED, An Act to
revise certain definitions relating to
migratory birds, waterfowl, and small game and require certain hunting permits and licenses
when hunting sandhill crane and snipe.
HB 1031:
FOR AN ACT ENTITLED, An Act to
allow certain driver education courses
from other states to be used to meet the requirements for a restricted minor's permit.
HB 1040:
FOR AN ACT ENTITLED, An Act to
continue the moratorium on new nursing
facility beds.
HB 1046:
FOR AN ACT ENTITLED, An Act to
revise the benefit plans that are exempt
from execution, attachment, garnishment, seizure, or taking by any legal process.
HB 1048:
FOR AN ACT ENTITLED, An Act to
allow the Department of Revenue to grant
a business a statewide sales tax permit.
HB 1059:
FOR AN ACT ENTITLED, An Act to
clarify persons required to report child
abuse or neglect.
HB 1071:
FOR AN ACT ENTITLED, An Act to
provide for the disposition of certain
abandoned, lost, or confiscated bicycles.
HB 1113:
FOR AN ACT ENTITLED, An Act to
authorize certain evidence in the defense
of a violation for a sale of alcoholic beverages to a person under the age of twenty-one.
HB 1116:
FOR AN ACT ENTITLED, An Act to
prohibit motor vehicle brokering.
HB 1123:
FOR AN ACT ENTITLED, An Act to
revise who may administer oaths and take
proof or acknowledgment.
HB 1128:
FOR AN ACT ENTITLED, An Act to
revise certain bylaw and quorum
provisions regarding cooperatives.
HB 1140:
FOR AN ACT ENTITLED, An Act to
provide for the charging of a fee for the
redemption of a tax sale.
HB 1169:
FOR AN ACT ENTITLED, An Act to
revise the length of time during which
a county board of equalization may hear assessed valuation appeals.
HB 1188:
FOR AN ACT ENTITLED, An Act to
allow the payment of the motor vehicle
excise tax by a person on behalf of the owner.
HB 1190:
FOR AN ACT ENTITLED, An Act to
repeal the specific time period that an
insurance agent involved in certain crimes must wait before seeking licensure.
HB 1192:
FOR AN ACT ENTITLED, An Act to
allow law enforcement agencies to report
certain violations of law and threats made by a student.
HB 1198:
FOR AN ACT ENTITLED, An Act to
revise the definition of a material
acquisition or disposition as it pertains to certain insurance disclosure requirements.
HB 1199:
FOR AN ACT ENTITLED, An Act to
repeal certain provisions relating to
certain transactions between an insurer and an affiliate.
HB 1204:
FOR AN ACT ENTITLED, An Act to
allow for the increase of drainage permit
fees.
HB 1278:
FOR AN ACT ENTITLED, An Act to
revise certain provisions relating to the
method of amending the articles of incorporation of nonprofit corporations.
And signed the same in the presence of the Senate.
COMMEMORATIONS
SC 21
Introduced by:
Senators Brown (Arnold), Albers, Benson, Bogue, Brosz, Daugaard,
Dennert, Drake, Dunn (Jim), Dunn (Rebecca), Duxbury, Everist, Flowers, Frederick, Hainje,
Halverson, Ham, Hutmacher, Kleven, Kloucek, Lange, Lawler, Madden, Moore, Munson
(David), Olson, Paisley, Reedy, Rounds, Shoener, Staggers, Symens, Valandra, Vitter, and
Whiting and Representatives McNenny, Apa, Broderick, Brooks, Brown (Jarvis), Brown
(Richard), Burg, Cerny, Chicoine, Clark, Crisp, Cutler, Davis, Derby, Diedrich (Larry),
Diedtrich (Elmer), Duenwald, Duniphan, Earley, Eccarius, Engbrecht, Fiegen, Fischer-Clemens,
Fitzgerald, Fryslie, Garnos, Hagen, Haley, Hanson, Heineman, Hennies, Hunt, Jaspers, Juhnke,
Kazmerzak, Klaudt, Koehn, Koetzle, Konold, Kooistra, Koskan, Lintz, Lockner, Lucas, McCoy,
McIntyre, Michels, Monroe, Munson (Donald), Nachtigal, Napoli, Patterson, Peterson, Pummel,
Putnam, Richter, Roe, Sebert, Slaughter, Smidt, Solum, Sutton (Daniel), Sutton (Duane),
Volesky, Waltman, Weber, Wetz, Wilson, Wudel, and Young
A LEGISLATIVE COMMEMORATION,
Commending and honoring Terry C. Anderson for
his outstanding service to the South Dakota Legislature.
WHEREAS,
Terry C. Anderson first served the South Dakota Legislature thirty years ago
as a messenger, began employment as a research analyst with the Legislative Research Council
in 1977, and became the seventh director of the Legislative Research Council in 1982; and
WHEREAS,
Terry C. Anderson in his eighteen years as director of the Legislative Research
Council has coordinated the administrative affairs of the Legislature in a professional and
nonpartisan manner and has skillfully prepared the Legislature for the challenges of the twenty-
first century; and
WHEREAS,
Terry C. Anderson has admirably represented the South Dakota Legislature
in national efforts to improve the legislative institution by serving in a number of positions with
the Council of State Governments and the National Conference of State Legislatures, including
a year as NCSL Staff Chair; and
WHEREAS,
Terry C. Anderson will be greatly missed by legislators, legislative staff, and
all the others involved in the legislative process in South Dakota:
NOW, THEREFORE, BE IT COMMEMORATED,
by the Seventy-fifth Legislature of the
State of South Dakota, that Terry C. Anderson be hereby honored for his many years of
outstanding service to the South Dakota Legislature and be extended best wishes in his new
career challenge.
Sen. Whiting moved that the Senate do now adjourn, which motion prevailed, and at
5:40 p.m. the Senate adjourned.