77th Legislative Session _ 2002

Committee: House Judiciary
Monday, February 04, 2002

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Bartling
P    Gillespie
P    Hennies (Thomas)
P    Jensen
P    Madsen
E    McCaulley
P    Monroe
P    Murschel
P    Nachtigal
P    Sebert
E    Valandra
P    Michels, Vice-Chair
E    Brown (Jarvis), Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Matthew Michels, Vice-Chair

MOTION:     TO APPROVE THE MINUTES OF FEBRUARY 1, 2002

Moved by:    Madsen
Second by:    Monroe
Action:    Prevailed by voice vote.

The Chair deferred HB 1084 until February 6, 2002.

         HB 1283: establish the crime of physical abuse of an infant, to designate the offense as a crime of violence, and to provide certain penalties therefor.

Presented By:    Representative Eccarius

Proponents:    Dr Rick Kaplan, Child's Voice, Sioux Falls
        Tony Sanchez, Department of Social Sevices
        Roger Tellinghuisen, SD Trial Lawyers Association
        Joni Cutler, SD Advocacy Network for Women

MOTION:     AMEND HB 1283

1283ra
     On page 1, line 4 of the printed bill, after " who " insert ", intentionally or recklessly,".

     On page 1 , line 5, delete " contusion " and insert "damage".

     On page 1 , line 6, delete " whether caused intentionally or " .

     On page 1 , line 7, delete " recklessly, " .

Moved by:    Monroe
Second by:    Jensen
Action:    Prevailed by voice vote.

 MOTION:     AMEND HB 1283

1283rb
     On page 1, line 5 of the printed bill, after " intracranial " insert "or intraocular".

Moved by:    Madsen
Second by:    Hennies (Thomas)
Action:    Prevailed by voice vote.

 MOTION:     DO PASS HB 1283 AS AMENDED

Moved by:    Madsen
Second by:    Bartling
Action:    Prevailed by roll call vote.(10-0-3-0)

Voting Yes:    Bartling, Gillespie, Hennies (Thomas), Jensen, Madsen, Monroe, Murschel, Nachtigal, Sebert, Michels

Excused:    McCaulley, Valandra, Brown (Jarvis)

         HB 1300: revise the privileges against defamation.

Proponents:    Brent Wilbur, Governor's Office

MOTION:     AMEND HB 1300

1300ra
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section 1. That § 3-21-10 be amended to read as follows:

     3-21-10.   No waiver of state immunity by statute or, where permitted, by any officer or agent of the state may constitute or be interpreted as a waiver of the state's immunity from lawsuits in federal court or the courts of any jurisdiction other than the South Dakota Unified Judicial System . "


Moved by:    Madsen
Second by:    Gillespie
Action:    Prevailed by voice vote.

 MOTION:     DO PASS HB 1300 AS AMENDED

Moved by:    Sebert
Second by:    Jensen
Action:    Prevailed by roll call vote.(10-0-3-0)

Voting Yes:    Bartling, Gillespie, Hennies (Thomas), Jensen, Madsen, Monroe, Murschel, Nachtigal, Sebert, Michels

Excused:    McCaulley, Valandra, Brown (Jarvis)

 MOTION:     TO AMEND TITLE OF HB 1300

1300rta
     On page 1, line 1 of the printed bill, delete everything after " to " and insert "clarify the state's sovereign immunity in the courts of other jurisdictions.".

Moved by:    Bartling
Second by:    Madsen
Action:    Prevailed by voice vote.


MOTION:     PLACE HB 1300 ON CONSENT CALENDAR

Moved by:    Monroe
Second by:    Jensen
Action:    Prevailed by voice vote.

          HB 1293: adopt the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.

Presented By:    Represtentative Van Norman
Proponents:    Jeff Fox, SD Network Against Family Voilence
Opponents:    Ann Holzhauser, Department of Social Services

MOTION:     AMEND HB 1293

1293ra
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. That chapter 25-10 be amended by adding thereto a NEW SECTION to read as follows:

     Any domestic abuse protection order issued by a court of competent jurisdiction of another state, Indian tribe, the District of Columbia, or a commonwealth, territory, or possession of the United States, shall be accorded full faith and credit by the courts of this state if the protection order meets the requirements of §  1-1-25 and shall be enforced as if the order was issued by a court in this state.

     Section 2. That chapter 25-10 be amended by adding thereto a NEW SECTION to read as follows:

     A protected party may file the order, as described in section 1 of this Act, without fees or costs, in the office of any clerk of a circuit court in this state. The person filing shall attach an affidavit certifying the validity and status of the order and shall affirm that the order has not been rescinded, modified, or superseded by another order. If the order is filed, the clerk of court shall transmit a copy of the order to the appropriate local law enforcement agency.

     Section 3. That chapter 25-10 be amended by adding thereto a NEW SECTION to read as follows:

     A law enforcement officer may rely upon any order, as described in section 1 of this Act, that has been presented to the officer by any source. An officer may make arrests for violations of orders, as described in section 1 of this Act, in the same manner as for violations of orders issued in South Dakota and may rely on the statement of the protected party that the order remains in effect and the

respondent was served. Any law enforcement officer who enforces such an order while acting in good faith is immune from civil and criminal liability in any action arising in connection with the enforcement of the order.

     Section 4. That chapter 25-10 be amended by adding thereto a NEW SECTION to read as follows:

    
             A protection order is valid if it:

             (1)    Identifies the protected individual and the respondent;

             (2)    Is currently in effect;

             (3)    Was issued by a tribunal that had jurisdiction over the parties and matter under the law of the issuing state; and

             (4)    Was issued after the respondent was provided with reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and afforded an opportunity to be heard within a reasonable time after the issuing of the order, consistent with the rights of the respondent to due process.

     However, any protection order meeting the requirements of §  1-1-25 is also valid. A person authorized under the law of this state to seek enforcement of a foreign protection order establishes a prima facie case for its validity by presenting an order valid on its face. Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order."

Moved by:    Jensen
Second by:    Murschel
Action:    Prevailed by voice vote.

 MOTION:     AMEND HB 1293

1293rb
     On the previously adopted amendment 1293ra, section 3, delete "by any source" and insert ", if the source has previously complied with the provisions of section 2 of this Act".

     On the previously adopted amendment 1293ra, section 3, delete "and may rely on the statement of the protected party that the order remains in effect and the respondent was served".

     On the previously adopted amendment 1293ra, section 4, delete "Is currently in effect" and insert "Complies with the provisions of section 2 of this Act".

Moved by:    Monroe
Second by:    Madsen
Action:    Prevailed by voice vote.

 MOTION:     DO PASS HB 1293 AS AMENDED

Moved by:    Monroe
Second by:    Bartling
Action:    Failed by roll call vote.(6-4-3-0)

Voting Yes:    Bartling, Gillespie, Jensen, Madsen, Monroe, Nachtigal

Voting No:    Hennies (Thomas), Murschel, Sebert, Michels

Excused:    McCaulley, Valandra, Brown (Jarvis)

 MOTION:     DEFER HB 1293 TO THE 36TH LEGISLATIVE DAY

Moved by:    Hennies (Thomas)
Second by:    Gillespie
Action:    Failed by roll call vote.(6-4-3-0)

Voting Yes:    Gillespie, Hennies (Thomas), Madsen, Murschel, Sebert, Michels

Voting No:    Bartling, Jensen, Monroe, Nachtigal

Excused:    McCaulley, Valandra, Brown (Jarvis)

 MOTION:     DEFER HB 1160 UNTIL FEBRUARY 6, 2002

Moved by:    Monroe
Second by:    Jensen
Action:    Prevailed by voice vote.

          HB 1220: allow certain third parties to intervene in a custody dispute of a child.

Presented By:    Representative Murschel

Proponents:    Senator Everist
        Joni Cutler, Sioux Falls
        Karen Hattervig, Sioux Falls, (testimony given on Friday)
Opponents:    Tony Sanchez, Department of Social Services

MOTION:     AMEND HB 1220

1220ja
     On page 1 , line 13 of the printed bill, delete " that it would be " and insert "extraordinary circumstances. For the purposes of this section, the term, extraordinary circumstances, means circumstances that result in serious detriment to the child, including the following:

             (1)    The abandonment or persistent neglect of the child by the parent;

             (2)    The likelihood of serious physical or emotional harm to the child if placed in the parent's custody;

             (3)    The extended, unjustifiable absence of parental custody;

             (4)    The abdication of parental responsibilities;

             (5)    The provision of the child's physical, emotional, and other needs by persons other than the parent over a significant period of time;

             (6)    The existence of a bonded relationship between the child and the nonparent custodian sufficient to cause significant emotional harm to the child in the event of a change in custody;

             (7)    The substantial enhancement of the child's well-being while under the care of the nonparent;

             (8)    The extent of the parent's delay in seeking to reacquire custody of the child;

             (9)    The demonstrated quality of the parent's commitment to raising the child;

             (10)    The likely degree of stability and security in the child's future with the parent;

             (11)    The extent to which the child's right to an education would be impaired while in the custody of the parent; and

             (12)    Any other circumstances that would substantially and adversely impact the welfare of the child.".

     On page 1 , delete line 14 .

     On page 2 , delete lines 1 and 2 .

Moved by:    Murschel
Second by:    Bartling
Action:    Prevailed by voice vote.

 MOTION:     AMEND HB 1220

1220ra
     On the previously adopted amendment 1220ja, on the third line, after "including" insert "any one or more of".

     On the previously adopted amendment 1220ja, in subdivision (11), delete "and" and insert "or".

Moved by:    Hennies (Thomas)
Second by:    Bartling
Action:    Prevailed by voice vote.

 MOTION:     DO PASS HB 1220 AS AMENDED

Moved by:    Madsen
Second by:    Jensen
Action:    Prevailed by roll call vote.(8-2-3-0)

Voting Yes:    Bartling, Gillespie, Hennies (Thomas), Jensen, Madsen, Murschel, Nachtigal, Michels

Voting No:    Monroe, Sebert

Excused:    McCaulley, Valandra, Brown (Jarvis)

          HB 1253: establish an ombudsman to represent youth offenders.

Proponents:    LaRee Rumbolz, Mitchell
        Jim Rumbolz, Mitchell
        Deb Phillips, Whitewood
        Pamela Guettler, Spearfish, (Testified Friday)


The Chair deferred HB 1253 until February 6, 2002.

MOTION:     ADJOURN

Moved by:    Madsen
Second by:    Jensen
Action:    Prevailed by voice vote.

Diane Mellan

____________________________

Committee Secretary
Matthew Michels, Vice-Chair

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