Senate Judiciary Minutes 01/28/2002 10:00 AM

77^th Legislative Session _ 2002

Committee: Senate Judiciary

Monday, January 28, 2002

                                            P - Present
                                            E - Excused
                                            A - Absent

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

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chair Whiting

MOTION:     TO APPROVE THE MINUTES OF JANUARY 25, 2002

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

MOTION:     SUSPEND THE RULES TO HEAR SB 169

Moved by:    Daugaard
Second by:    Bogue
Action:    Prevailed by roll call vote.(6-0-1-0)

Voting Yes:    Bogue, Koetzle, Koskan, Moore, Daugaard, Whiting

Excused:    de Hueck

         SB 169: amend the Uniform Limited Partnership Act to provide limited liability limited partnerships.

Presented By: Tom Barnett, State Bar of South Dakota

MOTION: AMEND SB 169

On page 2, line 4 of the printed bill, after " partnership. " insert "Section 48-7-303 also applies to limited partners.".

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

MOTION:     DO PASS SB 169 AS AMENDED

Moved by:    Bogue
Second by:    Moore
Action:    Prevailed by roll call vote.(6-0-1-0)

Voting Yes:    Bogue, Koetzle, Koskan, Moore, Daugaard, Whiting

Excused:    de Hueck

MOTION:     PLACE SB 169 ON CONSENT CALENDAR

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

         SB 121: revise certain provisions regarding the family exclusion for auto insurance coverage.

Presented By:    Senator Royal McCracken
Proponents:    Rex Hagg, SD Trial Lawyers Association
        Tom Barnett, State Bar of South Dakota
Opponents:    Dick Tieszen, State Farm Insurance Companies
        Mike Shaw, DeSmet Insurance Company of South Dakota and National Association of Independent Insurers
        Ron Schmidt, American Insurance Association
        Larry Ahrendt, EVP, Independent Insurance Agents of SD
        Darla Lyon, Division of Insurance

MOTION:     DO PASS SB 121

Moved by:    Bogue
Second by:    Moore
Action:    Prevailed by roll call vote.(6-1-0-0)

Voting Yes:    Bogue, de Hueck, Koetzle, Moore, Daugaard, Whiting

Voting No:    Koskan

MOTION:     SUBSTITUTE MOTION AMEND SB 121

On page 2, line 9 of the printed bill, after " provided. " insert " Coverage for a relative residing in the named insured's household need not provide coverage for any recovery for pain and suffering. ".

Moved by:    Koetzle
Second by:    Whiting
Action:    Failed by roll call vote.(3-4-0-0)

Voting Yes:    Koskan, Daugaard, Whiting

Voting No:    Bogue, de Hueck, Koetzle, Moore

         SB 73: prohibit the sale of prepaid adult entertainment cards and to provide a penalty therefor.

Presented By:    Senator Garry Moore
Proponents:    Representative Matthew Michels
        Bill Mickelson, Governor's Office
        Travis Benson, Catholic Diocese of Sioux Falls
        Kitty Werthmann, Eagle Forum

MOTION:     AMEND SB 73

On page 1, line 5 of the printed bill, after " at " insert "wholesale,".

On page 1 , line 5, after " retail " insert ",".

On page 1 , line 11, after " card " insert "or any prepaid adult entertainment telephone card".

On page 1 , line 11, after " person " insert "under".

On page 1 , line 11, delete " or younger " .

On page 1 , after line 11, insert:

" Section 3. A prepaid adult entertainment telephone card is a product, either sold at wholesale, retail, or distributed gratis as a promotion, which permits the cardholder to access one or more adult entertainment telephone services for a predetermined number of minutes by means of a telephone number and an access code or password unique to each card. The cardholder places the telephone call and gains entry to the service for purposes of engaging in sexually-explicit telephone conversations with one or more adults. When the predetermined number of minutes has been exhausted, the card automatically expires.

Section 4. Any person who knowingly participates in any conduct proscribed by this Act is liable for civil damages.

Section 5. Any of the following persons may bring an action for damages caused by another person's conduct as proscribed by this Act:

(1) The victimized minor;

(2) A parent, legal guardian, or sibling of a victimized minor; or

(3) Any person injured as a result of the willful, reckless, or negligent actions of a person who knowingly participated in conduct proscribed by this Act.

If the parent or guardian is named as a defendant in the action, the court shall appoint a special guardian to bring the action on behalf of the minor.

Section 6. Any person entitled to bring an action under section 5 of this Act may seek damages from any person who knowingly participated in the sale or in the chain of distribution of any prepaid adult entertainment card or any prepaid adult entertainment telephone card proscribed by this Act.

Section 7. Any person entitled to bring an action under section 5 of this Act may recover all of the following damages:

(1) Economic damages, including the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the

proscribed conduct;

(2) Noneconomic damages, including physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, and consortium, and other nonpecuniary losses proximately caused by the proscribed conduct;

(3) Exemplary damages;

(4) Attorneys' fees; and

(5) Disbursements.

Section 8. Any action for damages under this Act shall be commenced within six years of the time the plaintiff knew, or had reason to know, of any injury caused by violations of this Act. The knowledge of a parent, guardian, or custodian may not be imputed to the minor.

For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is incapacitated by minority.".

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

MOTION:     DO PASS SB 73 AS AMENDED

Moved by:    Bogue
Second by:    Daugaard
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Koetzle, Koskan, Moore, Daugaard, Whiting

         SB 74: prohibit and proscribe the sale of prepaid adult entertainment cards and to provide certain penalties therefor.

Presented By:    Senator Garry Moore
Proponents:    Representative Matthew Michels
        Bill Mickelson, Governor's Office
        Travis Benson, Catholic Diocese of Sioux Falls
        Kitty Werthmann, Eagle Forum

MOTION: AMEND SB 74

On page 1, line 5 of the printed bill, after " at " insert "wholesale,".

On page 1 , line 5, after " retail " insert ",".

On page 2 , line 5, after " person " insert "under".

On page 2 , line 5, delete " or younger " .

On page 2 , line 6, delete " nineteen " and insert "eighteen".

On page 2 , line 8, after " cards " insert "an all prepaid adult entertainment telephone cards".

On page 2 , after line 10, insert:

" Section 5. A prepaid adult entertainment telephone card is a product, either sold at wholesale, retail, or distributed gratis as a promotion, which permits the cardholder to access one or more adult entertainment telephone services for a predetermined number of minutes by means of a telephone number and an access code or password unique to each card. The cardholder places the telephone call and gains entry to the service for purposes of engaging in sexually-explicit telephone conversations with one or more adults. When the predetermined number of minutes has been exhausted, the card automatically expires.

Section 6. Any person who knowingly participates in any conduct proscribed by this Act is liable for civil damages.

Section 7. Any of the following persons may bring an action for damages caused by another person's conduct as proscribed by this Act:

(1) The victimized minor;

(2) A parent, legal guardian, or sibling of a victimized minor; or

(3) Any person injured as a result of the willful, reckless, or negligent actions of a person who knowingly participated in conduct proscribed by this Act.

If the parent or guardian is named as a defendant in the action, the court shall appoint a special guardian to bring the action on behalf of the minor.

Section 8. Any person entitled to bring an action under section 7 of this Act may seek damages from any person who knowingly participated in the sale or in the chain of distribution of any prepaid adult entertainment card or any prepaid adult entertainment telephone card proscribed by this Act.

Section 9. Any person entitled to bring an action under section 7 of this Act may recover all of the following damages:

(1) Economic damages, including the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the proscribed conduct;

(2) Noneconomic damages, including physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, and consortium, and other nonpecuniary losses proximately caused by the proscribed conduct;

(3) Exemplary damages;

(4) Attorneys' fees; and

(5) Disbursements.

Section 10. Any action for damages under this Act shall be commenced within six years of the time the plaintiff knew, or had reason to know, of any injury caused by violations of this Act. The knowledge of a parent, guardian, or custodian may not be imputed to the minor.

For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is incapacitated by minority.".

Moved by:    Moore
Second by:    Daugaard
Action:    Prevailed by voice vote.

MOTION:     DO PASS SB 74 AS AMENDED

Moved by:    Koetzle
Second by:    Moore
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION DEFER SB 74 TO THE 36^TH LEGISLATIVE DAY

Moved by:    Bogue
Second by:    Daugaard
Action:    Prevailed by roll call vote.(5-2-0-0)

Voting Yes:    Bogue, de Hueck, Koskan, Daugaard, Whiting

Voting No:    Koetzle, Moore

Gavel passed to Vice-Chair Daugaard

         SB 107: provide for the transfer of certain statutes regarding domestic abuse.

Presented By:    Senator Fred Whiting
Proponents:    Joni Clark Cutler, SD Advocacy Network for Women

MOTION:     DO PASS SB 107

Moved by:    Whiting
Second by:    Moore
Action:    Prevailed by roll call vote.(6-0-1-0)

Voting Yes:    Bogue, de Hueck, Koskan, Moore, Daugaard, Whiting

Excused:    Koetzle

MOTION:     PLACE SB 107 ON CONSENT CALENDAR

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

Gavel passed to Chair Whiting

         HB 1011: revise the method by which a withholding order may be served for the purpose of collecting child support.

Presented By:    David Braun, Department of Social Services

MOTION:     DO PASS HB 1011

Moved by:    Daugaard
Second by:    Bogue
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Koetzle, Koskan, Moore, Daugaard, Whiting

MOTION:     PLACE HB 1011 ON CONSENT CALENDAR

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

         HB 1014: eliminate a need for a witness to the signature of an applicant.

Presented By:    Tony Sanchez, Department of Social Services

MOTION:     DO PASS HB 1014

Moved by:    de Hueck
Second by:    Moore
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Koetzle, Koskan, Moore, Daugaard, Whiting

MOTION:     PLACE HB 1014 ON CONSENT CALENDAR

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

         HB 1015: modify certain requirements for service of notice of entry in an action involving abuse or neglect.

Presented By:    Tony Sanchez, Department of Social Services

MOTION:     AMEND HB 1015

On page 1, line 8 of the printed bill, after " parties " insert " in the same manner as service of the summons in the action as provided in § 26-7A-47 ".

On page 1 , line 9, overstrike " § 26-7A-47 and " .

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

MOTION:     DO PASS HB 1015 AS AMENDED

Moved by:    Bogue
Second by:    de Hueck
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Koetzle, Koskan, Moore, Daugaard, Whiting

MOTION:     PLACE HB 1015 ON CONSENT CALENDAR

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

MOTION:     ADJOURN

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

____________________________

Committee Secretary

Fred C. Whiting, Chair

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