Senate Journal 02/01/2001 2:00 PM

JOURNAL OF THE SENATE

SEVENTY-SIXTH SESSION

SEVENTEENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, February 1, 2001

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

The prayer was offered by the Chaplain, Pastor Jeff Porter, followed by the Pledge of Allegiance led by Senate page Emily Kerr.

Roll Call: All members present except Sens. Hagen and Koetzle who were 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 sixteenth 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,

Arnold M. Brown, Chair

Which motion prevailed and the report was adopted.

COMMUNICATIONS AND PETITIONS

January 31, 2001

Madam President and Members of the Senate:

I have the honor to inform you that I have approved SB 54 and 65, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
William J. Janklow
Governor

February 1, 2001

Madam President and Members of the Senate:

I have the honor to inform you that I have approved SB 5, 6, and 13, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
William J. Janklow
Governor

REPORTS OF STANDING COMMITTEES

MADAM PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 34, 35, 36, and 37 and finds the same correctly enrolled.

Respectfully submitted,
Arnold M. Brown, Chair

Also MADAM PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration SB 11 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 10 of the printed bill, after " suspended. " insert "The fence may not limit the free navigation of any navigable watercourse or limit the right of the public to the enjoyment of the entire lake. At the request of any person, unit of local government, or political subdivision of the state, any contest pertaining to the restrictions set forth in this section may be brought to the Water Management Board for resolution consistent with the process established in § 46-5- 1.1. This section does not apply to meandered lakes, lakes where an ordinary high water mark has been established pursuant to § 43-17-21, or any lake that has a history of public use and access."

On page 1 , delete lines 13 and 14 , and insert "The liability provisions related to landowners, tenants, or lessees in § § 20-9-11 and 20-9-16 apply to any landowner, tenant, or lessee that constructs a fence in accordance with section 1 of this Act."

On page 2 , delete line 1 .

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration SB 191 and 194 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Larry Diedrich, Chair

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1069 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 145 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 12 of the printed bill, after " district " insert " , and that school district provides special education services to the child ".

On page 1 , line 15, delete " approved special education " and insert "out of district special education residential or tuition day".

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration SB 129, 198, and 208 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Don Brosz, Chair

Also MADAM PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration HB 1013 and 1047 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 Transportation respectfully reports that it has had under consideration SB 137 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 7 of the printed bill, delete " if the " and insert " notwithstanding any other provision of law, if the purchaser defaults on the terms of the sale within the thirty-day period, the seller does ".

On page 1 , delete line 8 .

On page 1 , line 9, delete " until payment for the vehicle has been " .

On page 1 , line 10, delete " completed or an arrangement for payment has been made. " and insert " . The seller shall notify the department in writing of the seller's refusal to deliver title to the purchaser within fourteen days of the purchaser's default on the terms of the sale. "

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Transportation respectfully reports that it has had under consideration SB 95 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Drue J. Vitter, Chair

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 169 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 161 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 10 of the printed bill, after " product " insert "and the concentration of methyl tertiary butyl ether in the petroleum product does not exceed one-half of one percent by volume".

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 162 and returns the same with the recommendation that said bill be amended as follows:

On page 4, line 24 of the printed bill, overstrike " p.m. " and insert " midnight ".

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 201 and returns the same with the recommendation that said bill be amended as follows:

On page 2, line 10 of the printed bill, after " § 58-1-16 " insert "and issued any charitable gift annuity".

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 217 and returns the same with the recommendation that said bill be amended as follows:

On page 1, line 9 of the printed bill, delete " or " and insert " of the United States or any state or province of any ".

On page 1 , line 12, delete " foreign country " and insert " province ".

On page 1 , after line 12, insert:

"Section 2. That chapter 5-19 be amended by adding thereto a NEW SECTION to read as follows:

In complying with the requirements of § 5-19-3 regarding a bidder from another country, the state, any department thereof, any county, municipality, school district, or other public corporation may rely on an affidavit submitted with the bid stating the bidder's home country, state, or province does not enforce a preference for resident bidders, or if the bidder's home country, state, or province does enforce a preference for resident bidders, stating the nature and extent of that preference.

Section 3. That chapter 5-19 be amended by adding thereto a NEW SECTION to read as follows:

If a bidder submits an affidavit that falsely states that the bidder's home country, state, or province does not enforce a preference for resident bidders or that any preference is less than it actually is and if the false affidavit results in the bidder being awarded the contract, the bidder shall be penalized. The bidder's penalty is the lessor of ten percent of its contract or the amount of the preference enforced by its home country, state, or province. In addition to this monetary penalty, the contracting public corporation may cancel the bidder's contract. Nothing in this section may be deemed to impose on the state, any department thereof, any county, municipality, school district, or other public corporation a duty to determine for itself the veracity of any affidavit regarding preferences submitted by a bidder."

And that as so amended said bill do pass.

Also MADAM PRESIDENT:

The Committee on Commerce respectfully reports that it has had under consideration SB 89 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
David R. Munson, Chair

MESSAGES FROM THE HOUSE

MADAM PRESIDENT:

I have the honor to inform your honorable body that the House has concurred in Senate amendments to HB 1050 and 1067.

Also MADAM PRESIDENT:

I have the honor to return herewith SB 34, 35, 36, and 37 which have passed the House without change.

Also MADAM PRESIDENT:

I have the honor to transmit herewith HB 1032, 1103, 1109, 1128, 1144, 1145, 1148, and 1156 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

CONSIDERATION OF REPORTS OF COMMITTEES

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

Retirement Laws on SB 47 as found on page 297 of the Senate Journal ; also

Taxation on SB 101 as found on page 296 of the Senate Journal ; also

Judiciary on SB 105 as found on page 309 of the Senate Journal ; also

State Affairs on SB 124 as found on page 294 of the Senate Journal ; also

Taxation on SB 140 as found on page 296 of the Senate Journal ; also

Local Government on SB 126 as found on page 295 of the Senate Journal ; also

Education on HB 1008 as found on page 278 of the Senate Journal ; also

Taxation on SB 116 as found on page 296 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

Sen. Staggers moved that SB 116, which was reported without recommendation, be placed on the calendar of Friday, February 2, the 18^th legislative day.

The question being on Sen. Staggers' motion that SB 116 be placed on the calendar of Friday, February 2, the 18^th legislative day.

And the roll being called:

Yeas 13, Nays 20, Excused 2, Absent 0

Yeas:
Apa; de Hueck; Dennert; Duxbury; Greenfield; Hutmacher; McIntyre; Moore; Reedy; Staggers; Sutton (Dan); Symens; Volesky

Nays:
Albers; Bogue; Brosz; Brown (Arnold); Daugaard; Diedrich (Larry); Diedtrich (Elmer); Drake; Everist; Hainje; Ham; Kleven; Koskan; Madden; McCracken; Munson; Olson (Ed); Putnam; Vitter; Whiting

Excused:
Hagen; Koetzle

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

SECOND READING OF CONSENT CALENDAR ITEMS

Sen. Ed Olson requested that HB 1095 be removed from the Consent Calendar.

SB 152: FOR AN ACT ENTITLED, An Act to revise certain vaccination and brucellosis testing provisions related to the importation of livestock.

Was read the second time.

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

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Albers; Apa; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Koskan; Madden; McCracken; McIntyre; Moore; Munson; Olson (Ed); Putnam; Reedy; Staggers; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Excused:
Hagen; Koetzle

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 1027: FOR AN ACT ENTITLED, An Act to repeal the composition requirements of the Board of Vocational Rehabilitation.

Was read the second time.

The question being "Shall HB 1027 pass as amended?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Albers; Apa; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Koskan; Madden; McCracken; McIntyre; Moore; Munson; Olson (Ed); Putnam; Reedy; Staggers; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Excused:
Hagen; Koetzle

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 1029: FOR AN ACT ENTITLED, An Act to allow for a change in the composition of the Board of Service to the Blind and Visually Impaired and to repeal certain functions of the board.

Was read the second time.

The question being "Shall HB 1029 pass as amended?"

And the roll being called:

Yeas 33, Nays 0, Excused 2, Absent 0

Yeas:
Albers; Apa; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Koskan; Madden; McCracken; McIntyre; Moore; Munson; Olson (Ed); Putnam; Reedy; Staggers; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Excused:
Hagen; Koetzle

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 111: FOR AN ACT ENTITLED, An Act to allow for binding arbitration for school districts and employees under certain circumstances.

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

Sen. Brosz moved that SB 111 be amended as follows:

On page 2 , line 3, after " . " insert "Refusal by either party to arbitrate is not an unfair labor practice or bad faith negotiation."

Which motion prevailed.

Sen. Everist moved the previous question.

Which motion prevailed.

The question being "Shall SB 111 pass as amended?"

And the roll being called:

Yeas 21, Nays 12, Excused 2, Absent 0

Yeas:
Apa; Brosz; Daugaard; de Hueck; Dennert; Diedtrich (Elmer); Duxbury; Greenfield; Ham; Hutmacher; McCracken; McIntyre; Moore; Munson; Olson (Ed); Reedy; Staggers; Sutton (Dan); Symens; Volesky; Whiting

Nays:
Albers; Bogue; Brown (Arnold); Diedrich (Larry); Drake; Everist; Hainje; Kleven; Koskan; Madden; Putnam; Vitter

Excused:
Hagen; Koetzle

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

SB 48: FOR AN ACT ENTITLED, An Act to revise the eligibility requirements under which certain members of the South Dakota Retirement System can retire without a reduction in benefits.

Was read the second time.

The question being "Shall SB 48 pass?"

And the roll being called:

Yeas 29, Nays 4, Excused 2, Absent 0

Yeas:
Albers; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedtrich (Elmer); Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Madden; McCracken; McIntyre; Moore; Munson; Olson (Ed); Putnam; Reedy; Staggers; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Nays:
Apa; Diedrich (Larry); Drake; Koskan

Excused:
Hagen; Koetzle

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

SB 49: FOR AN ACT ENTITLED, An Act to provide a dividend account for members of the South Dakota Retirement System.

Was read the second time.

The question being "Shall SB 49 pass?"

And the roll being called:

Yeas 20, Nays 13, Excused 2, Absent 0

Yeas:
Albers; Brosz; Daugaard; de Hueck; Diedrich (Larry); Diedtrich (Elmer); Duxbury; Greenfield; Hainje; Ham; Kleven; Koskan; Madden; McCracken; Munson; Reedy; Sutton (Dan); Vitter; Volesky; Whiting

Nays:
Apa; Bogue; Brown (Arnold); Dennert; Drake; Everist; Hutmacher; McIntyre; Moore; Olson (Ed); Putnam; Staggers; Symens

Excused:
Hagen; Koetzle

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

SB 125: FOR AN ACT ENTITLED, An Act to clarify workers' compensation coverage for uncompensated volunteers and prisoners.

Was read the second time.

Sen. Vitter moved that SB 125 be deferred to Friday, February 2, the 18^th legislative day.

Which motion prevailed and the bill was so deferred.

SB 199: FOR AN ACT ENTITLED, An Act to revise municipal authority to license, tax, and regulate certain transient merchants.

Was read the second time.

Sen. Vitter moved that SB 199 be amended as follows:

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

" Section 1. That § 9-34-7 be amended to read as follows:

9-34-7. ~~Every~~ Each municipality ~~shall have power to~~ may license, tax, and regulate transient merchants, auctioneers, transient, bankrupt, and auction stores, and stores of like nature, gift enterprises, and ~~every~~ any business or vocation of like character ~~, except when carried on by a person retailing merchandise or products of his own manufacture or production, and except~~ . However, the municipality may exempt from any such licensure, taxation, or regulation a transient merchant who is retailing merchandise or products that the municipality determines to be of the person's own manufacture or production. This section does not apply to the distribution of any commodity from a railroad car by a cooperative association purchased in car lot for the personal use of its members. "

Which motion prevailed.

The question being "Shall SB 199 pass as amended?"

And the roll being called:

Yeas 32, Nays 1, Excused 2, Absent 0

Yeas:
Albers; Apa; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Koskan; Madden; McCracken; McIntyre; Moore; Munson; Olson (Ed); Putnam; Reedy; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Nays:
Staggers

Excused:
Hagen; Koetzle

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1032: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to child support.

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

HB 1103: FOR AN ACT ENTITLED, An Act to provide certain requirements for prescription labels when a generic drug is dispensed.

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

HB 1109: FOR AN ACT ENTITLED, An Act to permit the detention in an adult jail of certain juveniles convicted as adults.

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

HB 1128: FOR AN ACT ENTITLED, An Act to revise certain requirements concerning county budget hearings.

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

HB 1144: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to child custody.

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

HB 1145: FOR AN ACT ENTITLED, An Act to revise the circumstances under which certain arrests may be effected without a warrant.

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

HB 1148: FOR AN ACT ENTITLED, An Act to authorize certain activities by golf course designers.

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

HB 1156: FOR AN ACT ENTITLED, An Act to permit the consolidation of certain special elections on referendum petitions with the special election on April 10, 2001, and to declare an emergency.

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

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1053: FOR AN ACT ENTITLED, An Act to revise the requirements for dispositional decrees entered by the courts for abused and neglected children.

Was read the second time.

The question being "Shall HB 1053 pass?"

And the roll being called:

Yeas 32, Nays 0, Excused 3, Absent 0

Yeas:
Albers; Apa; Bogue; Brosz; Brown (Arnold); Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Duxbury; Everist; Greenfield; Hainje; Ham; Hutmacher; Kleven; Koskan; Madden; McCracken; Moore; Munson; Olson (Ed); Putnam; Reedy; Staggers; Sutton (Dan); Symens; Vitter; Volesky; Whiting

Excused:
Hagen; Koetzle; McIntyre

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 1059: FOR AN ACT ENTITLED, An Act to continue a surcharge on certain hunting licenses and to continuously appropriate the money for certain purposes.

Was read the second time.

Sen. Dennert moved that HB 1059 be further amended as follows:

On page 1, line 6 of the House State Affairs Committee engrossed bill, delete " five " and insert “ten”.

On page 1 , line 12, delete " Fifty " and insert "Seventy-five".

On page 2 , line 1, delete " Fifty " and insert "Twenty-five".

Sen. Duxbury requested that Joint Rule 5-17 be invoked on HB 1059.

Which request was supported and HB 1059 with Sen. Dennert's pending motion to amend was deferred until Monday, February 5, the 19^th legislative day.

Sen. Everist moved that when we adjourn today, we adjourn to convene at 1:00 p.m. on Friday, February 2, the 18^th legislative day.

Which motion prevailed.

SIGNING OF BILLS

The President publicly read the title to

SB 34: FOR AN ACT ENTITLED, An Act to allow weights and measures inspections to be performed biennially.

SB 35: FOR AN ACT ENTITLED, An Act to require insurance producers to sell only investments authorized pursuant to certain provisions.

SB 36: FOR AN ACT ENTITLED, An Act to revise nonrenewal and preexisting condition provisions and to correct outdated references for health insurance plans.

SB 37: FOR AN ACT ENTITLED, An Act to revise certain requirements for continuation and conversion of employer health plans.

HB 1018: FOR AN ACT ENTITLED, An Act to authorize the Department of Health to establish a program for processing waiver requests for international medical graduates and to establish a fee for processing waiver requests.

HB 1022: FOR AN ACT ENTITLED, An Act to authorize the Department of Corrections to construct prison industries buildings at the South Dakota State Penitentiary, the Jameson Prison Annex, and the Mike Durfee State Prison, to make an appropriation therefor, and to declare an emergency.

HB 1026: FOR AN ACT ENTITLED, An Act to provide rule-making authority for certain fees for the certification of interpreters for the deaf.

HB 1028: FOR AN ACT ENTITLED, An Act to revise the composition of the review panel of interpreters for the deaf and hard of hearing.

HB 1030: FOR AN ACT ENTITLED, An Act to revise the rehabilitation services provided at public cost to disabled and visually impaired persons based on economic need to include postsecondary tuition and fees.

HB 1051: FOR AN ACT ENTITLED, An Act to increase the punishment for felony child abuse of a child under seven years of age and to designate the offense as a crime of violence.

HB 1057: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the law enforcement authority of conservation officers.

HB 1061: FOR AN ACT ENTITLED, An Act to prohibit certain persons from applying for a hunting, fishing, or trapping license, to provide for an automatic revocation of any license or privilege, and to provide for a penalty for a violation thereof.

HB 1066: FOR AN ACT ENTITLED, An Act to complete the transfer of state radio services from the Office of the Attorney General to the Bureau of Information and Telecommunications.

HB 1076: FOR AN ACT ENTITLED, An Act to permit certain persons whose driving privileges have been suspended or revoked to attend counseling programs.

And signed the same in the presence of the Senate.

Sen. Ham moved that the Senate do now adjourn, which motion prevailed and at 3:23 p.m. the Senate adjourned.

Patricia Adam, Secretary