JOURNAL OF THE SENATE

SEVENTY-NINTH SESSION  



THIRTY-FIFTH DAY



STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Monday, March 15, 2004

     The Senate convened at 10:00 a.m., pursuant to adjournment, the President presiding.

     The prayer was offered by the Chaplain, Pastor Geraldine King, followed by the Pledge of Allegiance led by Senate page Jeremiah Johnson.

     Roll Call: All members present.

APPROVAL OF THE JOURNAL


MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the thirty-fourth 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


March 2, 2004

Mr. President and Members of the Senate:

    I have the honor to inform you that I have approved Senate Bills 7, 15, 34, 37, 41, 45, 50, 51, 54, 59, 62, 63, 64, 66, 76, 85, 91, 92, 95, 99, 123, 147, 154, and 164, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 4, 2004

Mr. President and Members of the Senate:

    I have the honor to inform you that I have approved Senate Bills 11, 48, 86, 108, 150, 167, 168, 173, 179, 182, 188, 189, 193, 194, 205, 206, 208, 211, and 217, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

March 5, 2004

Mr. President and Members of the Senate:

    I have the honor to inform you that I have approved Senate Bills 112, 195, and 209, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor


EXECUTIVE VETOES AND RECOMMENDATIONS

February 27, 2004

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

I herewith return Senate Bill 181 with the following recommendations as to STYLE and FORM.

Senate Bill 181 is an Act to require notice before relocating a child not living with both legal parents.

The bill requires that a relocating parent give 45 days notice to the other parent prior to moving. The requirement that a relocating parent give notice to the other parent is consistent with fundamental fairness. In most cases, divorced parents are communicating and cooperating for the benefit of their children. Unfortunately, I recognize that some divorced parents do not communicate nor do they cooperate. Thus, I believe Senate Bill 181 is needed. However, language in the bill, specifically the phrase "unless the court of record finds good cause for a shorter period of notice" creates an ambiguity regarding whether the relocating parent must first get court approval should the facts prevent the full 45 day notice. I am concerned about the situation where a good job or career advancement is offered to a parent but the start date required by the new employer prevents compliance with the full 45 day notice requirement.

The proponents assure me that it is their intention that a court would find under this factual scenario, that a shorter period of notice is nevertheless reasonable. Since that is the legislative intent, and there is a clear ambiguity, I recommend the following language to clarify and carry out the legislative intent of the bill:

On Page 1 line 8 of the Senate Judiciary engrossed bill, after relocation, delete the rest of the line and insert "or a shorter period if reasonable under the specific facts giving rise to the relocation." On Page 1, line 9, delete "of notice."

I respectfully request you concur with my recommendations as to style and form.

Respectfully submitted,
M. Michael Rounds
Governor


March 9, 2004

Honorable Dennis Daugaard
President of the Senate
State Capitol
500 E. Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

I hereby return Senate Bill 185 and VETO the same. It is "An Act to authorize counties to employ attorneys with specialized expertise and to validate prior actions in that regard."

I have two reasons for doing so.

First, Senate Bill 185 authorizes a board of county commissioners to enter into contracts with attorneys in civil actions where special expertise is required. County commissions should be able to enter into contracts for legal representation in complex cases with the advice and consent of the state's attorney. SB 185 does not require the consent of the state's attorney and without such consent I cannot sign this legislation into law.

Second, SB 185, Section 4 provides:

"Any contracts for legal services made by a board of county commissioners prior to July 1, 2004, are hereby validated, legalized, and cured, notwithstanding any errors, omissions, or informalities."

Our Supreme Court has previously recognized that such retroactive legislation may be valid. State ex. rel. Van Emmerick v. Janklow, 304 NW2d 700 (1981).

At this juncture no one knows the extent or nature of the contracts for legal services which this legislation would retroactively validate. Without such information I am unwilling to sign this legislation into law.

I respectfully request that you concur with my action.

Respectfully submitted,
M. Michael Rounds
Governor

MOTIONS AND RESOLUTIONS


     Sen. Kloucek moved that the rules be suspended for the sole purpose of introducing, numbering, and approving of a commemoration honoring Jennie Patrick as the 2003 South Dakota Dairy Princess.

     The question being on Sen. Kloucek's motion that the rules be suspended for the sole purpose of introducing, numbering, and approving of a commemoration honoring Jennie Patrick as the 2003 South Dakota Dairy Princess.

     And the roll being called:

     Yeas 34, Nays 0, Excused 1, Absent 0

     Yeas:
Abdallah; Albers; Apa; Bogue; Brown; de Hueck; Dempster; Dennert; Duenwald; Duniphan; Duxbury; Earley; Greenfield; Ham-Burr; Jaspers; Kelly; Kleven; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Kurtenbach; LaPointe; McCracken; Nachtigal; Napoli; Olson (Ed); Reedy; Schoenbeck; Sutton (Dan); Sutton (Duane); Symens; Vitter

     Excused:
Moore

     So the motion having received an affirmative vote of a two-thirds majority of the members-elect, the President declared the motion carried.

COMMEMORATIONS


     SC 15   Introduced by:  Senators Kloucek, Dempster, Dennert, Duenwald, Duxbury, Greenfield, Kooistra, Kurtenbach, Nachtigal, and Symens and Representatives Gassman, Bartling, Begalka, Fryslie, Hanson, Hunhoff, Lange, Miles, Peterson (Bill), Peterson (Jim), Rhoden, Rounds, and Sigdestad

         A LEGISLATIVE COMMEMORATION,  Honoring Jennie Patrick as the 2003 South Dakota Dairy Princess.

     WHEREAS,  Midwest Dairy Association's Princess Programs, established in 1955, which represents over 17,000 dairy farmers in eight states, supports the creative talent of young dairy women who deliver important messages to consumers on behalf of the dairy industry; and

     WHEREAS,  the candidates are selected on the basis of their communication skills, personality, general knowledge of the dairy industry and products, and their commitment to dairy promotion. The princess will serve as a spokesperson to the consumers and the news media through activities including media interviews, classroom visits to educate students about the dairy industry, speeches to various organizations, and public appearances at promotions or events; and

     WHEREAS,  Jennie Patrick, 21 year old daughter of Norris and Corinne Patrick, has resided on the family's dairy farm near White, South Dakota, with brothers, Tony and Terry, while pursuing a bachelor's degree in Business Management and Marketing, an Associate's degree in Business Administration, and a minor in Multi-media Web Design at Dakota State University; and
     WHEREAS,  on March 27, 2003, at the third annual Central Plains Expo in Sioux Falls, South Dakota, Jennie Patrick was crowned the 48th South Dakota Dairy Princess:

     NOW, THEREFORE, BE IT COMMEMORATED,  by the Seventy-ninth Legislature of the State of South Dakota, that the Legislature commends Jennie Patrick for being selected as the 2003 South Dakota Dairy Princess and the Midwest Dairy Association's Princess Programs for their outstanding dairy promotion.

CONSIDERATION OF EXECUTIVE VETOES AND RECOMMENDATIONS


     The Senate proceeded to the consideration of the recommendation of the Governor as to change of style and form of SB 181 as found on page 763 of the Senate Journal, as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall the recommendation of the Governor as to change of style and form of SB 181 be approved?"

     And the roll being called:

     Yeas 25, Nays 10, Excused 0, Absent 0

     Yeas:
Albers; Apa; Brown; Dempster; Dennert; Duenwald; Duxbury; Earley; Ham-Burr; Jaspers; Kleven; Kloucek; Kooistra; Koskan; Kurtenbach; LaPointe; McCracken; Moore; Napoli; Olson (Ed); Reedy; Schoenbeck; Sutton (Dan); Sutton (Duane); Vitter

     Nays:
Abdallah; Bogue; de Hueck; Duniphan; Greenfield; Kelly; Knudson; Koetzle; Nachtigal; Symens

     So the question having received an affirmative vote of a majority of the members-elect, the President declared the recommendation of the Governor as to change of style and form approved.

     The Senate proceeded to the reconsideration of SB 185 pursuant to the veto of the Governor and the veto message found on page 764 of the Senate Journal as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall SB 185 pass, the veto of the Governor notwithstanding?"

     And the roll being called:

     Yeas 2, Nays 33, Excused 0, Absent 0

     Yeas:
Apa; Napoli


     Nays:
Abdallah; Albers; Bogue; Brown; de Hueck; Dempster; Dennert; Duenwald; Duniphan; Duxbury; Earley; Greenfield; Ham-Burr; Jaspers; Kelly; Kleven; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Kurtenbach; LaPointe; McCracken; Moore; Nachtigal; Olson (Ed); Reedy; Schoenbeck; Sutton (Dan); Sutton (Duane); Symens; Vitter

     So the bill not having received an affirmative vote of a two-thirds majority of the members-elect, the President declared the bill lost, sustaining the Governor's veto.

MOTIONS AND RESOLUTIONS


     Sen. Bogue moved that the rules be suspended for the sole purpose of introducing, giving first reading to, and referring to a committee of the whole a bill relating to composition and duties of the State Brand Board.

     The question being on Sen. Bogue's motion that the rules be suspended for the sole purpose of introducing, giving first reading to, and referring to a committee of the whole a bill relating to composition and duties of the State Brand Board.

     And the roll being called:

     Yeas 31, Nays 3, Excused 1, Absent 0

     Yeas:
Abdallah; Albers; Apa; Bogue; Brown; de Hueck; Dempster; Dennert; Duenwald; Duxbury; Earley; Greenfield; Ham-Burr; Jaspers; Kelly; Kleven; Kloucek; Knudson; Koskan; Kurtenbach; LaPointe; McCracken; Moore; Napoli; Olson (Ed); Reedy; Schoenbeck; Sutton (Dan); Sutton (Duane); Symens; Vitter

     Nays:
Koetzle; Kooistra; Nachtigal

     Excused:
Duniphan

     So the motion having received an affirmative vote of a two-thirds majority of the members-elect, the President declared the motion carried.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 218   Introduced by:  Senators Bogue, McCracken, Moore, and Symens and Representatives Peterson (Bill), Burg, Olson (Mel), and Rhoden

       FOR AN ACT ENTITLED, An Act to   revise certain provisions relating to state livestock ownership inspection, to revise the composition and duties of the State Brand Board, and to declare an emergency.

     Was read the first time and referred to a Committee of the Whole.

    The President appointed Sen. Brown to serve as Chairman of the Committee of the Whole.

    Sen. Bogue moved that the Senate do now resolve itself into a Committee of the Whole to consider SB 218.

    Which motion prevailed and the Senate recessed to convene as a Committee of the Whole.

COMMITTEE OF THE WHOLE

    The Secretary of the Senate called the roll.

    A quorum was present.

    Testifying before the Committee of the Whole were:

    Proponents -- Larry Gabriel, Secretary of Agriculture, Pierre;
                Ken Knuppe, President of the South Dakota Stockgrowers Association, Buffalo Gap.

    No opponents spoke.

    Sen. Bogue moved that the Committee of the Whole recommend that SB 218 do pass.

    Which motion prevailed.

    Sen. Bogue moved that the Committee of the Whole do rise.

    Which motion prevailed.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 218:   FOR AN ACT ENTITLED, An Act to   revise certain provisions relating to state livestock ownership inspection, to revise the composition and duties of the State Brand Board, and to declare an emergency.

     Was read the second time.

     The question being "Shall SB 218 pass?"

     And the roll being called:

     Yeas 33, Nays 2, Excused 0, Absent 0

     Yeas:
Abdallah; Apa; Bogue; Brown; de Hueck; Dempster; Dennert; Duenwald; Duniphan; Duxbury; Earley; Greenfield; Ham-Burr; Jaspers; Kelly; Kleven; Kloucek; Knudson; Koetzle; Koskan; Kurtenbach; LaPointe; McCracken; Moore; Nachtigal; Napoli; Olson (Ed); Reedy; Schoenbeck; Sutton (Dan); Sutton (Duane); Symens; Vitter

     Nays:
Albers; Kooistra

     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.

MOTIONS AND RESOLUTIONS


     Sen. Bogue moved that a committee of three on the part of the Senate be appointed to meet with a like committee on the part of the House to fix the time of adjournment sine die of the Seventy-ninth Legislative Session.

    Which motion prevailed and the President appointed as such committee Sens. Bogue, Brown, and Moore.

     Sen. Bogue moved that a committee of three on the part of the Senate be appointed to meet with a like committee on the part of the House to wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.

    Which motion prevailed and the President appointed as such committee Sens. Bogue, Brown, and Moore.

MESSAGES FROM THE HOUSE


MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has approved HB 1191 as recommended by the Governor, pursuant to Article IV, Section 4, of the Constitution of the State of South Dakota, for changes as to style and form. The recommendation of the Governor is found on page 849 of the House Journal.

    We hereby request your favorable consideration in approving the recommendation of the Governor as to style and form on HB 1191.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has passed HB 1283 over the veto of the Governor. The veto message of the Governor is found on page 850 of the House Journal.

    We hereby request your favorable consideration in passing HB 1283, the veto of the Governor notwithstanding.


Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Michels, Bill Peterson, and Mel Olson as a committee of three on the part of the House to meet with a like committee on the part of the Senate to wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.


Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Michels, Rhoden, and Burg as a committee of three on the part of the House to meet with a like committee on the part of the Senate pertaining to fixing the time of adjournment sine die for the Seventy-ninth Legislative Session.

Respectfully,
Karen Gerdes, Chief Clerk

     Sen. Bogue moved that the Senate do now recess until 1:30 p.m., which motion prevailed and at 11:48 a.m., the Senate recessed.

RECESS

     The Senate reconvened at 1:30 p.m., the President presiding.

CONSIDERATION OF EXECUTIVE VETOES AND RECOMMENDATIONS


     The Senate proceeded to the consideration of the recommendation of the Governor as to change of style and form of HB 1191 as found on page 849 of the House Journal, as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall the recommendation of the Governor as to change of style and form of HB 1191 be approved?"

     And the roll being called:

     Yeas 17, Nays 18, Excused 0, Absent 0

     Yeas:
Abdallah; Apa; Bogue; Earley; Jaspers; Kelly; Kleven; Kloucek; Koetzle; Koskan; Kurtenbach; LaPointe; Moore; Napoli; Schoenbeck; Sutton (Dan); Vitter

     Nays:
Albers; Brown; de Hueck; Dempster; Dennert; Duenwald; Duniphan; Duxbury; Greenfield; Ham-Burr; Knudson; Kooistra; McCracken; Nachtigal; Olson (Ed); Reedy; Sutton (Duane); Symens

     So the question not having received an affirmative vote of a majority of the members-elect, the President declared the recommendation of the Governor as to change of style and form lost.

     The Senate proceeded to the reconsideration of HB 1283 pursuant to the veto of the Governor and the veto message found on page 850 of the House Journal as provided in Article IV, Section 4, of the Constitution of the State of South Dakota.

     The question being "Shall HB 1283 pass, the veto of the Governor notwithstanding?"

     And the roll being called:

     Yeas 17, Nays 18, Excused 0, Absent 0

     Yeas:
Albers; Brown; de Hueck; Dempster; Dennert; Duenwald; Duxbury; Greenfield; Kloucek; Koetzle; Kooistra; Moore; Nachtigal; Napoli; Reedy; Sutton (Dan); Symens

     Nays:
Abdallah; Apa; Bogue; Duniphan; Earley; Ham-Burr; Jaspers; Kelly; Kleven; Knudson; Koskan; Kurtenbach; LaPointe; McCracken; Olson (Ed); Schoenbeck; Sutton (Duane); Vitter

     So the bill not having received an affirmative vote of a two-thirds majority of the members-elect, the President declared the bill lost, sustaining the Governor's veto.

MESSAGES FROM THE HOUSE


MR. PRESIDENT:

    I have the honor to return herewith SB 218 which has passed the House without change.


Also MR. PRESIDENT:

    I have the honor to transmit herewith HCR 1023 which has been adopted by the House and your concurrence is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS


     HCR 1023:   A CONCURRENT RESOLUTION,   Recognizing the investment of the South Dakota taxpayers in the state's K-12 public education system and the need for accountability to the taxpayers for that investment.

     Was read the first time and the President waived the referral to committee and placed HCR 1023 on the calendar for immediate consideration.

     HCR 1023:   A CONCURRENT RESOLUTION,   Recognizing the investment of the South Dakota taxpayers in the state's K-12 public education system and the need for accountability to the taxpayers for that investment.

    Was read the second time.

     Sen. Ed Olson moved that the Senate do concur in HCR 1023 as found on page 858 of the House Journal.

     The question being on Sen. Olson's motion that the Senate do concur in HCR 1023.

     And the roll being called:

     Yeas 30, Nays 1, Excused 4, Absent 0

     Yeas:
Abdallah; Albers; Apa; Bogue; Brown; de Hueck; Dempster; Dennert; Duenwald; Duniphan; Duxbury; Earley; Greenfield; Ham-Burr; Jaspers; Kelly; Kleven; Kloucek; Knudson; Kooistra; Koskan; Kurtenbach; LaPointe; McCracken; Nachtigal; Napoli; Olson (Ed); Reedy; Sutton (Duane); Vitter

     Nays:
Moore

     Excused:
Koetzle; Schoenbeck; Sutton (Dan); Symens

     So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1023 was concurred in.


REPORTS OF JOINT-SELECT COMMITTEES



MR. PRESIDENT:

    Your Joint-Select Committee appointed to wait upon his Excellency, the Governor, to inform him that the Legislature has completed its labors and is ready to adjourn sine die and to ascertain if he has any further communications to make to the Legislature, respectfully reports that it has performed the duty assigned to it and has been informed by his Excellency, the Governor, that he will not appear for the closing of the Seventy-ninth Legislative Session.

Respectfully submitted,    Respectfully submitted,
Matthew Michels    Eric Bogue
Bill Peterson    Arnold Brown
Mel Olson    Garry Moore
House Committee    Senate Committee

Also MR. PRESIDENT:

    Your Joint-Select Committee appointed to consider the matter of adjournment sine die of the Seventy-ninth Legislative Session respectfully reports that the Senate and House of Representatives adjourn sine die at the hour of 4:00 p.m., March 15, 2004.

Respectfully submitted,    Respectfully submitted,
Matthew Michels    Eric Bogue
Larry Rhoden    Arnold Brown
Quinten Burg    Garry Moore
House Committee    Senate Committee

CONSIDERATION OF REPORTS OF JOINT-SELECT COMMITTEES


     Sen. Bogue moved that the report of the Joint-Select Committee relative to informing his Excellency, the Governor, that the Legislature has completed its labors and is ready to adjourn sine die as found on page 773 of the Senate Journal be adopted.

     Which motion prevailed.

     Sen. Bogue moved that the report of the Joint-Select Committee relative to adjournment sine die of the Seventy-ninth Legislative Session as found on page 773 of the Senate Journal be adopted.

     Which motion prevailed.

SIGNING OF BILLS


     The President publicly read the title to

     SB 218: FOR AN ACT ENTITLED, An Act to  revise certain provisions relating to state livestock ownership inspection, to revise the composition and duties of the State Brand Board, and to declare an emergency.

     And signed the same in the presence of the Senate.

    President Pro tempore Brown now presiding.

REPORTS OF STANDING COMMITTEES


MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 218 and finds the same correctly enrolled.

Also MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the House and Senate have, pursuant to the Governor's veto of SB 185, sustained that veto and delivered the same to his Excellency, the Secretary of State, for filing at 1:30 p.m., March 15, 2004.

Respectfully submitted,
Arnold M. Brown, Chair

MESSAGES FROM THE HOUSE


MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has approved SB 181 as recommended by the Governor, pursuant to Article IV, Section 4, of the Constitution of the State of South Dakota, for changes as to style and form.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has adopted the report of the Joint-Select Committee for the purpose of informing his Excellency, the Governor, that the

Legislature has completed its labors, is ready to adjourn sine die, and to ascertain if he has any further communications to make to the Legislature.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has adopted the report of the Joint-Select Committee for the purpose of fixing the time of adjournment sine die for the Seventy-ninth Legislative Session.

Respectfully,
Karen Gerdes, Chief Clerk

REPORTS OF STANDING COMMITTEES


MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that SB 218 was delivered to his Excellency, the Governor, for his approval at 3:10 p.m., March 15, 2004.

MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that the House and Senate have, pursuant to the recommendation of the Governor as to corrections in style and form of SB 181, approved the recommendation and that the Office of Enrolling and Engrossing has engrossed the changes and has returned the same to his Excellency, the Governor, at 3:20 p.m., March 15, 2004.

Respectfully submitted,
Arnold M. Brown, Chair

    The following closing prayer was offered by Rev. Geraldine C. King:

    Blessed are You, O Lord, our God, King of all and Creator of all. May we always give You praise and honor for the blessings You bestow on us daily and for all that You have done and continue to do in the lives of Your people. We thank You for the talents and gifts of those who lead this state: our Governor, Mike Rounds, our Lt. Governor, our Speaker of the House, our legislators, our Legislative Research Council, our judges, our secretaries, pages, lobbyists, and for all who work diligently all year for this state in their service to carry out the decisions that have been made in this 2004 legislative session. We thank You for giving these leaders the talents, understanding, and discernment in the final days of this session to protect, to govern, and to serve all of the citizens of this state of South Dakota. Send us forth with Your blessing and bestow us with the grace to continue to serve You in all that we say and do. To You be all honor and glory now and forever. Amen.


      Sen. Bogue moved that the Senate do now adjourn sine die, which motion prevailed and at 4:00 p.m. the Senate adjourned.

Patricia Adam, Secretary