JOURNAL OF THE SENATE

SEVENTY-SEVENTH  SESSION



ELEVENTH DAY



STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Wednesday, January 23, 2002

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

     The prayer was offered by the Chaplain, Father Christopher Hughes, followed by the Pledge of Allegiance led by Senate page Stephanie Wildberger.

     Roll Call: All members present.

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 tenth 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 16, 2002

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

Dear Madam President and Members of the Senate:

    Pursuant to the provisions of Sections 33-1-10 and 33-1-10.1 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have appointed R. James Clifft, Minnehaha County, Sioux Falls, South Dakota, Assistant Adjutant General, Air.

    This appointment is effective October 1, 2002, and shall continue until March 31, 2004.

Sincerely,
William J. Janklow
Governor

    The President referred the appointment to the Committee on State Affairs.

REPORTS OF STANDING COMMITTEES


MADAM PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration SB 58 and returns the same with the recommendation that said bill be amended as follows:

58ja

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

     "Section 1. That chapter 36-9 be amended by adding thereto a NEW SECTION to read as follows:

     The Board of Nursing may charge a fee of ten dollars upon the biennial renewal of each registered nurse and practical nurse license in addition to the license renewal fee for the funding of a nursing workforce center."

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     On the previously adopted amendment, after "center." insert "Donations and bequests from persons to further the intent of the nursing workforce center or additional funds designated by the board may also be accepted and placed in the restricted fund."

58jta

     On page 1 of the printed bill, line 1, delete everything after "Act to" and insert "allow a fee to be assessed upon nursing license renewal for a nursing workforce center."

     On page 1 , delete lines 2 and 3 .

     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 80 and returns the same with the recommendation that said bill be amended as follows:

80ta

     On page 1, line 12 of the printed bill, remove the overstrikes from everything after " designate. " .

     On page 1 , remove the overstrikes from lines 13 and 14 .

     On page 2 , line 1, remove the overstrikes from " years. " .

     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 72 and returns the same with the recommendation that said bill be amended as follows:

72ja

     On page 3, between lines 15 and 16 of the printed bill, insert:

"

             (ii)    Annual renewal of license
25.00 ".


     On page 3 , line 16, overstrike " (ii) " and insert " (iii) ".

     On page 3 , line 17, overstrike " (iii) " and insert " (iv) ".
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     On page 3, line 20 of the printed bill, delete " 30.00 " and insert " 20.00 ".

     On page 5 , line 7, delete " thirty " and insert " twenty ".

72jta

     On page 1, line 1 of the printed bill, delete " increase the " and insert "provide for a".

     On page 1 , line 1, before " insurance " insert "nonresident".

     On page 1 , line 2, after " period " insert "for resident insurance producers".

     And that as so amended said bill do pass and be placed on the Consent Calendar.

Respectfully submitted,
David R. Munson, Chair

Also MADAM PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB  111 and 113 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 SB  131 which was deferred to the 36th Legislative Day.

Respectfully submitted,
Barbara Everist, Chair

Also MADAM PRESIDENT:

    The Committee on Taxation respectfully reports that it has had under consideration SB 79, 116, and 150 which were deferred to the 36th Legislative Day.

Respectfully submitted,
Eric H. Bogue, Chair

 Also MADAM PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration HB 1010 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration HB 1006 and 1007 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MADAM PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration SB 88 and 135 which were deferred to the 36th Legislative Day.

Respectfully submitted,
Arlene H. Ham, Chair

MESSAGES FROM THE HOUSE


MADAM PRESIDENT:

    I have the honor to return herewith SCR 1 in which the House has concurred.


Also MADAM PRESIDENT:

    I have the honor to transmit herewith HB 1009, 1017, 1024, 1037, 1039, 1040, 1071, 1075, and 1104 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS


     SCR 2   Introduced by:  Senators Olson (Ed), Albers, Brown (Arnold), Cradduck, Diedrich (Larry), Ham, McIntyre, Reedy, Sutton (Dan), and Symens and Representatives Heineman, Abdallah, Bartling, Davis, Duenwald, Duniphan, Flowers, Hunhoff, McCoy, Monroe, Nesselhuf, and Sebert

         A CONCURRENT RESOLUTION,  Urging the United States Congress to adopt legislation providing greater equity in Medicare reimbursement between large urban health care providers and rural health care providers.

     WHEREAS,  the greatest challenge facing health care providers in South Dakota is maintaining an adequately sized and trained workforce to care for and treat the state's aging population; and

     WHEREAS,  South Dakota's low unemployment rate and increasing competition from labor markets outside the state require that South Dakota health care providers have the necessary resources to compete for talented health care workers locally, regionally, and nationally; and

     WHEREAS,  Medicare represents a significant portion of the health care services provided by hospitals, nursing facilities, and home health agencies; and

     WHEREAS,  those health care facilities located in the rural portions of South Dakota generally serve a disproportionately high percentage of Medicare patients; and

     WHEREAS,  those rural health care facilities are as a group the most financially at-risk health care institutions in South Dakota; and

     WHEREAS,  the growing difference between the actual cost of caring for Medicare patients in South Dakota and Medicare reimbursement is among the highest in the United States; and

     WHEREAS,  Medicare currently provides favorable payment status through a "standardized rate" to large urban health care providers relative to small urban and rural health care providers by giving the former an automatic 1.6 percent increase over the latter; and

     WHEREAS,  Medicare payments for hospitals, skilled nursing facilities, and home health care are adjusted to reflect differences in wages and salaries paid around the country through the Area Wage Index (AWI); and

     WHEREAS,  the data used to calculate the AWI is four years old and not reflective of current labor market conditions and the AWI is applied to a disproportionately high percentage of the Medicare payment; and

     WHEREAS,  disparities in the standardized rate and the AWI make it increasingly difficult for South Dakota health care providers to compete for and attract health care professionals and other workers in a regional and national labor market:

     NOW, THEREFORE, BE IT RESOLVED,  by the Senate of the Seventy-seventh Legislature of the State of South Dakota, the House of Representatives concurring therein, that the United States Congress enact legislation that applies Medicare's standardized rate currently applied to large urban areas to small urban and rural health care providers and that modifies the Area Wage Index by establishing a floor of 0.925 and applies the Area Wage Index to a percentage of reimbursement that more closely reflects the actual percentage of a health care provider's expenses devoted to wages and salaries; and
     BE IT FURTHER RESOLVED,  that copies of this Resolution be forwarded to Senator Tom Daschle, Senator Tim Johnson, and Representative John Thune and that Senator Daschle, Senator Johnson, and Representative Thune be requested to brief the 2003 South Dakota Legislature on any progress or developments that have occurred at the national level on this issue.

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

CONSIDERATION OF REPORTS OF COMMITTEES


     Sen. Everist moved that the report of the Standing Committee on

     Education on SB 63 as found on page 165 of the Senate Journal be adopted.

     Which motion prevailed and the report was adopted.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 180   Introduced by:  The Committee on Commerce at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   regulate unsolicited electronic commerce.

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

     SB 181   Introduced by:  The Committee on State Affairs at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   provide for increases to the state minimum wage.

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

     SB 182   Introduced by:  The Committee on State Affairs at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   revise the procedures for opting out of the property tax freeze.

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

     SB 183   Introduced by:  The Committee on State Affairs at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   prohibit misleading unsolicited commercial e-mails.

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

     SB 184   Introduced by:  The Committee on State Affairs at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   protect the children of South Dakota against sexual exploitation by criminalizing certain conduct involving children and the internet, to provide for civil remedies, to require certain people to report suspected violations, and to revise certain provisions regarding the unlawful use of computers.

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

     SB 185   Introduced by:  The Committee on Appropriations at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   make an appropriation to fund tax refunds for elderly and disabled persons.

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

     SB 186   Introduced by:  The Committee on Appropriations at the request of the Governor

       FOR AN ACT ENTITLED, An Act to   appropriate funds from the water and environment fund and the environment and natural resources fee fund and to declare an emergency.

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

     SJR 4   Introduced by:  The Committee on State Affairs at the request of the Governor

       A JOINT RESOLUTION,   proposing and submitting to the electors at the next general election an amendment to Article XI of the Constitution of the State of South Dakota specifying the minimum vote necessary to opt out of the property tax freeze.

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

SECOND READING OF CONSENT CALENDAR ITEMS


     SB 75:   FOR AN ACT ENTITLED, An Act to   designate certain areas as drug-free zones.

     Was read the second time.

     The question being "Shall SB 75 pass?"

     And the roll being called:


     Yeas 35, Nays 0, Excused 0, Absent 0

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

     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 1043:   FOR AN ACT ENTITLED, An Act to   modify the nonresident licensure requirements for hunting sandhill crane.

     Was read the second time.

     The question being "Shall HB 1043 pass?"

     And the roll being called:

     Yeas 35, Nays 0, Excused 0, Absent 0

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

     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 23:   FOR AN ACT ENTITLED, An Act to   revise the rule-making authority for group health plans.

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

     Sen. Munson moved that SB 23 be deferred to Friday, January 25, the 13th legislative day.

     Which motion prevailed and the bill was so deferred.

     SB 36:   FOR AN ACT ENTITLED, An Act to   impose a sales and use tax on mobile telecommunications services and to implement the federal uniform and simplified sourcing rules for mobile telecommunications services.

     Was read the second time.

     The question being "Shall SB 36 pass as amended?"

     And the roll being called:

     Yeas 33, Nays 1, Excused 1, Absent 0

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

     Nays:
Staggers

     Excused:
Hutmacher

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

     SB 45:   FOR AN ACT ENTITLED, An Act to   authorize the practice of nonresident physicians in the state by electronic means facilitated through reciprocal licensure.

     Was read the second time.

     The question being "Shall SB 45 pass as amended?"

     And the roll being called:

     Yeas 33, Nays 1, Excused 1, Absent 0

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

     Nays:
Madden

     Excused:
Staggers

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

     The question being on the title.

     Sen. Daugaard moved that the title to SB 45 be amended as follows:

     On page 1, line 1 of the Senate State Affairs Committee engrossed bill, delete everything after " Act to " and insert "revise certain provisions related to the practice of medicine or osteopathy in South Dakota while holding a license in another state and while located outside of the state."

     On page 1 , delete line 2 .

     Which motion prevailed and the title was so amended.

     SB 77:   FOR AN ACT ENTITLED, An Act to   prohibit big game hunting on certain railroad rights-of-way.

     Was read the second time.

77x

     Sen. de Hueck moved that SB 77 be amended as follows:

     On page 1, line 13 of the printed bill, delete " or bow and arrow " .

     Which motion prevailed.

     The question being "Shall SB 77 pass as amended?"

     And the roll being called:

     Yeas 13, Nays 22, Excused 0, Absent 0

     Yeas:
Albers; Apa; Duxbury; Hagen; Ham; Hutmacher; Koetzle; Koskan; Madden; McIntyre; Reedy; Sutton (Dan); Symens

     Nays:
Bogue; Brosz; Brown (Arnold); Cradduck; Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Drake; Everist; Greenfield; Kleven; McCracken; Moore; Munson; Olson (Ed); Putnam; Staggers; Vitter; Volesky; Whiting

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

     Sen. Hutmacher announced his intention to reconsider the vote by which SB 77 was lost.

     SB 84:   FOR AN ACT ENTITLED, An Act to   revise certain transcript fees.

     Was read the second time.

     The question being "Shall SB 84 pass as amended?"

     And the roll being called:

     Yeas 25, Nays 10, Excused 0, Absent 0

     Yeas:
Albers; Bogue; Brosz; Brown (Arnold); Cradduck; Daugaard; de Hueck; Dennert; Diedrich (Larry); Diedtrich (Elmer); Duxbury; Everist; Hagen; Hutmacher; Koetzle; McCracken; McIntyre; Moore; Munson; Olson (Ed); Reedy; Sutton (Dan); Symens; Volesky; Whiting

     Nays:
Apa; Drake; Greenfield; Ham; Kleven; Koskan; Madden; Putnam; Staggers; Vitter

     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 123:   FOR AN ACT ENTITLED, An Act to   make it permissive for counties to levy a tax for secondary roads in unorganized territories.

     Was read the second time.

     The question being "Shall SB 123 pass?"

     And the roll being called:

     Yeas 33, Nays 2, Excused 0, Absent 0

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

     Nays:
Moore; Olson (Ed)

     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.

     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 SB 91 and returns the same with the recommendation that said bill do pass.

Also MADAM PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 19 and returns the same with the recommendation that said bill be amended as follows:

19ri

     On page 1, line 5 of the Senate Judiciary Committee engrossed bill, delete everything after " indirectly, " .

     On page 1 , delete line 6 .

     On page 1 , line 7, delete " through an electronic communication device, " .

     On page 1 , line 7, delete " or by any other " .

     On page 1 , line 8, delete " means, " .

     On page 1 , line 12, delete " whether or not the same is in fact used or present, " .

     On page 2 , after line 15, insert:

     "Section 4. That § 22-14A-22 be amended to read as follows:


     22-14A-22.   Any person who makes a false report, with intent to deceive, mislead, or otherwise misinform any person, concerning the placing or planting of any bomb, dynamite, explosive, or destructive device, dangerous chemical, biological agent, poison or harmful radioactive substance, is guilty of falsely reporting a bomb threat . Falsely reporting a bomb threat is a Class 6 felony. Any person found guilty of falsely reporting a bomb threat shall pay restitution for any expense incurred as a result of the crime. The person is also civilly liable for any injury to person or property from the false report and any costs related to responding to the false report. If the person making the false report prohibited by this section is a minor, the court, in addition to such other disposition as the court may impose, shall require the minor to perform at least fifty hours of public service unless tried as an adult. "

     And that as so amended said bill do pass.

Also MADAM PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 86 and returns the same with the recommendation that said bill be amended as follows:

86oa

     On page 2, line 8 of the printed bill, after " device. " insert " The ignition interlock device shall be a device approved pursuant to section 3 of this Act. "

     On page 2 , after line 14, insert:

    "Section 3. That chapter 32-23 be amended by adding thereto a NEW SECTION to read as follows:

    
     The Department of Commerce and Regulation shall approve any ignition interlock device to be used pursuant to this Act. The Secretary of the Department of Commerce and Regulation shall promulgate rules, pursuant to chapter 1-26, to establish performance standards for ignition interlock devices. The rules shall include standards relating to accuracy of the device, the means of installing the device, and the degree of difficulty rendering the device inoperative."

86ra
     On page 2 of the printed bill, delete lines 9 to 14 , inclusive.

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     On page 1, line 3 of the printed bill, delete " and to provide for a minimum jail sentence " .

     And that as so amended said bill do pass.


Also MADAM PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 101 and returns the same with the recommendation that said bill be amended as follows:

101ra

     On page 1, line 13 of the printed bill, delete " if requested by the public for any lawful purpose " and insert " upon approval of the court ".

     And that as so amended said bill do pass.

Respectfully submitted,
Fred C. Whiting, Chair

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS


     HB 1009:   FOR AN ACT ENTITLED, An Act to   revise the election procedures of certain special purpose districts.

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

     HB 1017:   FOR AN ACT ENTITLED, An Act to   revise certain provisions pertaining to the commitment of persons with developmental disabilities.

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

     HB 1024:   FOR AN ACT ENTITLED, An Act to   revise the penalties for overweight vehicle violations.

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

     HB 1037:   FOR AN ACT ENTITLED, An Act to   authorize the Department of Revenue to deny a motor vehicle registration or title to certain commercial motor carriers and to provide for the suspension or revocation of certain commercial motor carrier registration, license plates, or permits.

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

     HB 1039:   FOR AN ACT ENTITLED, An Act to   allow an application for a concealed pistol permit to be filed electronically.

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

     HB 1040:   FOR AN ACT ENTITLED, An Act to   provide for the treatment of Indian tribes for purposes of unemployment insurance.

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

     HB 1071:   FOR AN ACT ENTITLED, An Act to   authorize the continuation of a pilot program granting secured parties access to the state's computer system.

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

     HB 1075:   FOR AN ACT ENTITLED, An Act to   provide for a bank's investment limitations.

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

     HB 1104:   FOR AN ACT ENTITLED, An Act to   prohibit the filing of false financing statements.

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

     Sen. Greenfield moved that the Senate do now adjourn, which motion prevailed and at 3:17 p.m. the Senate adjourned.

Patricia Adam, Secretary