77th Legislative Session _ 2002

Committee: Senate Judiciary
Friday, January 25, 2002

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Bogue
P    de Hueck
P    Koetzle
P    Koskan
E    Moore
P    Daugaard, Vice-Chair
E    Whiting, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Vice-Chair Daugaard

MOTION:     TO APPROVE THE MINUTES OF JANUARY 23, 2002

Moved by:    Bogue
Second by:    Koskan
Action:    Prevailed by voice vote.

         SB 175: provide for civil liability for certain personal injuries relating to the internet posting of certain inherently dangerous information.

The Chair deferred SB 175 until another day.

         SB 126: revise certain career service system rules pertaining to causes for disciplinary action against employees.

The Chair deferred SB 126 until another day.


         SB 176: repeal certain provisions, commonly known as the gag law, prohibiting certain disclosures by a state agency of information concerning a private entity.

Presented By:    Senator Hutmacher
Proponents:    Richard Butler, State Treasurer
        Scott McGregor, State Treasurer's Office
        Dave Bordewyk, SD Newspaper Association

MOTION:     DO PASS SB 176

Moved by:    Koetzle
Second by:    de Hueck
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION AMEND SB 176

176ra
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. That § 1-27-28 be amended to read as follows:

     1-27-28.   Terms used in § §   1-27-29 to 1-27-32, inclusive, mean:

             (1)      " Private entity Natural person ," any natural person or entity that is not a public entity as defined by subdivision 3-21-1(2) in their capacity as an individual being ;

             (2)      "State agency," each association, authority, board, commission, committee, council, department, division, state office, task force, and their officers, legal representatives, consultants, or other agents. The term does not include the Legislature, the Unified Judicial System, any law enforcement agency, or any unit of local government.

     Section 2. That § 1-27-29 be amended to read as follows:

     1-27-29.   A state agency which is authorized by law to investigate, examine, or audit the papers, books, records, financial condition, or other information held by or concerning a private entity any natural person may not disclose that it is conducting such an investigation, examination, or audit, except as provided by § §  1-27-28 to 1-27-32, inclusive.

     Section 3. That § 1-27-30 be amended to read as follows:

     1-27-30.   All information obtained from or concerning the private entity natural person by the state agency as a result of such an investigation, examination, or audit is confidential, except as

provided by § §  1-27-28 to 1-27-32, inclusive.

     Section 4. That § 1-27-31 be amended to read as follows:

     1-27-31.   A state agency may not disclose that it is investigating, examining, or auditing a private entity natural person , and may only disclose the information obtained from such an investigation, examination, or audit as follows:

             (1)      To the private entity natural person being investigated, examined, or audited;

             (2)      To those persons whom the private entity natural person has authorized in writing to receive such information;

             (3)      To the officers, employees, or legal representatives of any other state agency which requests the information in writing for the purpose of investigating and enforcing civil or criminal matters. The written request will specify the particular information desired and the purpose for which the information is requested;

             (4)      To any administrative or judicial body if the information is directly related to the resolution of an issue in the proceeding, or pursuant to an administrative or judicial order. However, no person may use a subpoena, discovery, or other applicable statutes to obtain such information;

             (5)      To another state pursuant to an agreement between the State of South Dakota and the other state, but only if the other state agrees to keep the information confidential as set forth in § §  1-27-28 to 1-27-32, inclusive;

             (6)      To the attorney general, state's attorney, or any state, federal, or local law enforcement officer;

             (7)      To a federal agency pursuant to the provisions of federal law;

             (8)      To the extent necessary to submit any final reports or filings which are otherwise required by law to be prepared or filed;

             (9)      For investigations to protect the natural resources of the state; or

             (10)      To comply with federal law, rules, or program delegation requirements. "

Moved by:    Bogue
Second by:    de Hueck


Action:    Failed by roll call vote.(2-3-2-0)

Voting Yes:    Bogue, de Hueck

Voting No:    Koetzle, Koskan, Daugaard

Excused:    Moore, Whiting

MOTION:     SUBSTITUTE MOTION DEFER SB 176 TO THE 36TH LEGISLATIVE DAY

Moved by:    Koetzle
Second by:    Bogue
Action:    Prevailed by roll call vote.(4-1-2-0)

Voting Yes:    Bogue, de Hueck, Koskan, Daugaard

Voting No:    Koetzle

Excused:    Moore, Whiting

         SB 177: revise and modify certain provisions relating to the award of child custody.

Presented By:    Senator Hutmacher
Proponents:    Chuck Novotny, self, Winner
        Steve Smith, self, Chamberlain
        Roger Tellinghuisen, SD Trial Lawyers Association
        Representative Murschel
        Karen Harttervig, Sioux Falls
        Joni Clark Cutler, SD Advocacy Network for Women
        Bill Masterson, Jr., self, Rapid City

MOTION:     AMEND SB 177

177ra
     On page 2, after line 12 of the printed bill, insert:

"      Section 5. If a court determines that a petitioner pursuant to section 4 of this Act should be awarded custody or visitation, the court need not terminate either biological parent's parental rights over the child. A judgment awarding the petitioner custodial rights may award the biological parent with visitation rights with the child.

     Section 6. If a court awards a third party custodial rights to a child, the court may set child

support in whatever amount it deems appropriate, and notwithstanding the provisions of any other statute to the contrary, may waive the biological parent's duty to provide monetary or other support for their child.".


Moved by:    de Hueck
Second by:    Koetzle
Action:    Prevailed by voice vote.

MOTION:     AMEND SB 177

177rb
     On page 1, line 8 of the printed bill, delete " either " and insert " a sole surviving parent ".

     On page 2 , line 7, after " petitioner; " insert "or".

     On page 2 , line 9, after " petitioner; " insert "or".

Moved by:    Koetzle
Second by:    Koskan
Action:    Prevailed by voice vote.

MOTION:     AMEND SB 177

177ja
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. In disputes regarding custody of a child, the court may allow an interested third party to intervene upon motion. Before allowing intervention, the court may appoint counsel for the child. The court may award full or partial custody, care, and education of the child to any interested third party upon such conditions and limitations as the court deems equitable.

     Section 2. In making any order pursuant to section 1 of this Act, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference.

     Section 3. In disputes regarding custody of a child between a parent and an interested third party, the presumption in favor of the parent may be rebutted by showing that it would be detrimental to the child to award custody to the parent.

     Section 4. For the purposes of this Act, an interested third party is a person who has been one of

the primary caretakers of the child and with whom the child has closely bonded."


Moved by:    Koetzle
Action:    Died for a lack of a second

MOTION:     DO PASS SB 177 AS AMENDED

Moved by:    Koskan
Second by:    Daugaard
Action:    Prevailed by roll call vote.(4-0-3-0)

Voting Yes:    Bogue, Koetzle, Koskan, Daugaard

Excused:    de Hueck, Moore, Whiting

MOTION:     ADJOURN

Moved by:    Koetzle
Second by:    Koskan
Action:    Prevailed by voice vote.

Nancy Benson

____________________________

Committee Secretary                      Dennis M. Daugaard, Vice-Chair


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