SD Legislature Logo
Site Search:   
2016 Bill Quickfind:   



Members Calendars Journals Agendas

Senate Journals

Printer Friendly

Senate Journal 2/17/2016 02:00 PM

JOURNAL OF THE SENATE

NINETY-FIRST SESSION




TWENTY-SECOND DAY




STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Wednesday, February 17, 2016

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

    The prayer was offered by the Chaplain, Rev. Paul Bly, followed by the Pledge of Allegiance led by Senate pages Lacy Steiger and Grace Jensen.

    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 twenty-first 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,
Gary Cammack, Chair

    Which motion prevailed.
REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that SB 10, 11, 14, 18, 20, and 68 were delivered to his Excellency, the Governor, for his approval at 10:45 a.m., February 17, 2016.

Respectfully submitted,
Gary Cammack, Chair

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration HB 1005 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration SB 116 and returns the same with the recommendation that said bill do pass and be placed on the consent calendar.

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration the nomination of Charles M. Turbiville of Lawrence County, Deadwood, South Dakota, to the South Dakota Lottery Commission and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment and that said reappointment be placed on the consent calendar.

Also MR. PRESIDENT:

    The Committee on Local Government respectfully reports that it has had under consideration the nomination of Tom Graham of Minnehaha County, Sioux Falls, South Dakota, to the South Dakota Building Authority and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment and that said reappointment be placed on the consent calendar.

Respectfully submitted,
Bob Ewing, Chair


Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration SB 109 and returns the same with the recommendation that said bill be amended as follows:

109fa

    On page 2, between lines 10 and 11 of the printed bill, insert:

"    Section 3. That § 1-44-7.5 be amended to read:

    1-44-7.5. The Transportation Commission shall promulgate rules, pursuant to chapter 1-26, to establish the requirements for a county highway and bridge improvement plan that details proposed county highway and bridge improvement projects in a county for the next five years and how the county plans to implement an annual random checkpoint for overweight vehicles. The rules shall provide for the format of the plan and the time by which an update of the plan must be submitted each year. ".


    And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration SB 135 and 144 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Mike Vehle, Chair

Also MR. PRESIDENT:

    The Committee on Taxation respectfully reports that it has had under consideration HB 1150 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on Taxation respectfully reports that it has had under consideration SJR 2 and SB 111 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Jeff Monroe, Chair


Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 132 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 45 and returns the same with the recommendation that said bill be amended as follows:

45ob

    On page 4, line 11, of the printed bill, delete "shall" and insert "may".

    On page 4, line 12, delete "shall" and insert "may".

45oa

    On page 2, line 10, of the printed bill, after "transfer" insert "and no valid applications were received in the previous quarter".

    And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 106 and returns the same with the recommendation that said bill be amended as follows:

106fc

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

"    Section 1. That the code be amended by adding a NEW SECTION to read:

    Notwithstanding any other provision of law, any seller selling tangible personal property, products transferred electronically, or services for delivery into South Dakota, who does not have a physical presence in the state, is subject to chapters 10-45 and 10-52, shall remit the sales tax and shall follow all applicable procedures and requirements of law as if the seller had a physical presence in the state, provided the seller meets either of the following criteria in the previous calendar year or the current calendar year:

            (1)    The seller's gross revenue from the sale of tangible personal property, any product transferred electronically, or services delivered into South Dakota exceeds one hundred thousand dollars; or

            (2)    The seller sold tangible personal property, any product transferred electronically, or services for delivery into South Dakota in two hundred or more separate transactions.

    Section 2.That the code be amended by adding a NEW SECTION to read:

    Notwithstanding any other provision of law, and whether or not the state initiates an audit or other tax collection procedure, the state may bring a declaratory judgment action under chapter 21-24 in any circuit court against any person the state believes meets the criteria of section 1 of this Act to establish that the obligation to remit sales tax is applicable and valid under state and federal law. The circuit court shall act on this declaratory judgment action as expeditiously as possible and this action shall proceed with priority over any other action presenting the same question in any other venue.

    In this action, the court shall presume that the matter may be fully resolved through a motion to dismiss or a motion for summary judgment. However, if these motions do not resolve the action, any discovery allowed by the court may not exceed the provisions of subdivisions 15-6-73(2) and (4).

    The provisions of § 10-59-34, along with any other provisions authorizing attorney's fees, do not apply to any action brought pursuant to this Act or any appeal from any action brought pursuant to this Act.

    Section 3. That the code be amended by adding a NEW SECTION to read:

    The filing of the declaratory judgment action established in this Act by the state operates as an injunction during the pendency of the action, applicable to each state entity, prohibiting any state entity from enforcing the obligation in section 1 of this Act against any taxpayer who does not affirmatively consent or otherwise remit the sales tax on a voluntary basis. The injunction does not apply if there is a previous judgment from a court establishing the validity of the obligation in section 1 of this Act with respect to the particular taxpayer.

    Section 4. That the code be amended by adding a NEW SECTION to read:

    Any appeal from the decision with respect to the cause of action established by this Act may only be made to the state Supreme Court. The appeal shall be heard as expeditiously as possible.

    Section 5. That the code be amended by adding a NEW SECTION to read:

    No obligation to remit the sales tax required by this Act may be applied retroactively.

    Section 6. That the code be amended by adding a NEW SECTION to read:

    If an injunction provided by this Act is lifted or dissolved, in general or with respect to a specific taxpayer, the state shall assess and apply the obligation established in section 1 of this Act from that date forward with respect to any taxpayer covered by the injunction.

    Section 7. That the code be amended by adding a NEW SECTION to read:

    A taxpayer complying with this Act, voluntarily or otherwise, may only seek a recovery of taxes, penalties, or interest by following the recovery procedures established pursuant to chapter 10-59. However, no claim may be granted on the basis that the taxpayer lacked a physical presence in the state and complied with this Act voluntarily while covered by the injunction provided in section 3 of this Act.

    Nothing in this Act limits the ability of any taxpayer to obtain a refund for any other reason, including a mistake of fact or mathematical miscalculation of the applicable tax.

    No seller who remits sales tax voluntarily or otherwise under this Act is liable to a purchaser who claims that the sales tax has been over-collected because a provision of this Act is later deemed unlawful.

    Nothing in this Act affects the obligation of any purchaser from this state to remit use tax as to any applicable transaction in which the seller does not collect and remit or remit an offsetting sales tax.

    Section 8. That the code be amended by adding a NEW SECTION to read:

    The Legislature finds that:

            (1)    The inability to effectively collect the sales or use tax from remote sellers who deliver tangible personal property, products transferred electronically, or services directly into South Dakota is seriously eroding the sales tax base of this state, causing revenue losses and imminent harm to this state through the loss of critical funding for state and local services;

            (2)    The harm from the loss of revenue is especially serious in South Dakota because the state has no income tax, and sales and use tax revenues are essential in funding state and local services;

            (3)    Despite the fact that a use tax is owed on tangible personal property, any product transferred electronically, or services delivered for use in this state, many remote sellers actively market sales as tax free or no sales tax transactions;

            (4)    The structural advantages of remote sellers, including the absence of point-of-sale tax collection, along with the general growth of online retail, make clear that further erosion of this state's sales tax base is likely in the near future;

            (5)    Remote sellers who make a substantial number of deliveries into or have large gross revenues from South Dakota benefit extensively from this state's market, including the economy generally, as well as state infrastructure;

            (6)    In contrast with the expanding harms caused to the state from this exemption of sales tax collection duties for remote sellers, the costs of that collection have fallen. Given modern computing and software options, it is neither unusually difficult nor

burdensome for remote sellers to collect and remit sales taxes associated with sales into South Dakota;

            (7)    As Justice Kennedy recently recognized in his concurrence in Direct Marketing Association v. Brohl, the Supreme Court of the United States should reconsider its doctrine that prevents states from requiring remote sellers to collect sales tax, and as the foregoing findings make clear, this argument has grown stronger, and the cause more urgent, with time;

            (8)    Given the urgent need for the Supreme Court of the United States to reconsider this doctrine, it is necessary for this state to pass this law clarifying its immediate intent to require collection of sales taxes by remote sellers, and permitting the most expeditious possible review of the constitutionality of this law;

            (9)    Expeditious review is necessary and appropriate because, while it may be reasonable notwithstanding this law for remote sellers to continue to refuse to collect the sales tax in light of existing federal constitutional doctrine, any such refusal causes imminent harm to this state;

            (10)    At the same time, the Legislature recognizes that the enactment of this law places remote sellers in a complicated position, precisely because existing constitutional doctrine calls this law into question. Accordingly, the Legislature intends to clarify that the obligations created by this law would be appropriately stayed by the courts until the constitutionality of this law has been clearly established by a binding judgment, including, for example, a decision from the Supreme Court of the United States abrogating its existing doctrine, or a final judgment applicable to a particular taxpayer; and

            (11)    It is the intent of the Legislature to apply South Dakota's sales and use tax obligations to the limit of federal and state constitutional doctrines, and to thereby clarify that South Dakota law permits the state to immediately argue in any litigation that such constitutional doctrine should be changed to permit the collection obligations of this Act.

    Section 9. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist. This Act shall be in full force and effect on the first day of the first month that is at least fifteen calendar days from the date this Act is signed by the Governor."

    And that as so amended said bill do pass.


Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 143 and returns the same with the recommendation that said bill be amended as follows:

143oa

    On page 3, line 1, of the printed bill, delete "the members of the party caucuses" and insert "legislators".

    And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SB 164 which was tabled.

Also MR. PRESIDENT:

    The Committee on State Affairs respectfully reports that it has had under consideration SJR 4 and SB 139 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Gary Cammack, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

    I have the honor to transmit herewith HCR 1013 which has been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

    I have the honor to transmit herewith HB 1110, 1118, 1121, 1140, 1164, 1189, 1212, and 1214 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Arlene Kvislen, Chief Clerk


MOTIONS AND RESOLUTIONS

    HCR 1013: A CONCURRENT RESOLUTION, Recognizing the positive economic impact sportsmen and women have in South Dakota.

    Was read the first time, the President waived the referral to committee, and placed HCR 1013 on the calendar of Thursday, February 18th, the 23rd legislative day.

    Sen. Brown moved that SB 159 and 107 be deferred to Thursday, February 18th, the 23rd legislative day.

    Which motion prevailed.

CONSIDERATION OF REPORTS OF COMMITTEES

    Sen. Brown moved that the reports of the Standing Committees on

    Judiciary on HB 1183 as found on page 304 of the Senate Journal; also

    Judiciary on SB 140 as found on page 303 of the Senate Journal; also

    Judiciary on SB 97 as found on page 303 of the Senate Journal; also

    Education on SB 129 as found on page 301 of the Senate Journal; also

    Joint Committee on Appropriations on SB 75 as found on page 301 of the Senate Journal be adopted.

    Which motion prevailed.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

    The President declared that SB 137 was withdrawn at the request of the prime sponsor pursuant to Joint Rule 6B-1.1.


FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

    HB 1110: FOR AN ACT ENTITLED, An Act to provide medical care for certain unborn children.

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

    HB 1118: FOR AN ACT ENTITLED, An Act to limit the amount of instructional time that may be spent administering statewide academic assessments.

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

    HB 1121: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the regulation of vehicle dealers.

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

    HB 1140: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding county zoning.

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

    HB 1164: FOR AN ACT ENTITLED, An Act to provide for a special interest motor vehicle license plate for certain vehicles under certain conditions.

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

    HB 1189: FOR AN ACT ENTITLED, An Act to provide for the inspection and review of a state-mandated academic achievement test taken by a student.

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

    HB 1212: FOR AN ACT ENTITLED, An Act to revise requirements related to pregnancy help centers

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


    HB 1214: FOR AN ACT ENTITLED, An Act to regulate conflicts of interest for authority, board, or commission members.

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

SECOND READING OF CONSENT CALENDAR ITEMS

    SB 142: FOR AN ACT ENTITLED, An Act to authorize certain disclosures of mental health information to law enforcement.

    Was read the second time.

    The question being "Shall SB 142 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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 1013: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding alternative instruction achievement tests for children excused from school attendance.

    Was read the second time.

    The question being "Shall HB 1013 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White



    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 1014: FOR AN ACT ENTITLED, An Act to authorize the sale of certain surplus real estate and to provide for the deposit of the proceeds.

    Was read the second time.

    The question being "Shall HB 1014 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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 1010: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the development of park and recreational improvements on lands leased to the Department of Game, Fish and Parks.

    Was read the second time.

    The question being "Shall HB 1010 pass as amended?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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 1105: FOR AN ACT ENTITLED, An Act to give the court discretion to grant a continuance of a protection order in certain situations.

    Was read the second time.

    The question being "Shall HB 1105 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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 114: FOR AN ACT ENTITLED, An Act to make an appropriation for certain costs related to the commissioning of the USS South Dakota and to declare an emergency.

    Was read the second time.

    The question being "Shall SB 114 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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.


SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

    HB 1081: FOR AN ACT ENTITLED, An Act to make an appropriation to fund tax refunds for elderly persons and persons with a disability, to revise the income eligibility requirements for property and sales tax refunds, and to declare an emergency.

    Was read the second time.

    The question being "Shall HB 1081 pass as amended?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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.

    HB 1170: FOR AN ACT ENTITLED, An Act to make an appropriation to reimburse certain eligible health care professionals who have complied with the requirements of the rural health care facility recruitment assistance program and to declare an emergency.

    Was read the second time.

    The question being "Shall HB 1170 pass as amended?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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.



    HB 1082: FOR AN ACT ENTITLED, An Act to codify the list of navigable streams requiring gates.

    Was read the second time.

    The question being "Shall HB 1082 pass?"

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

    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.

SIGNING OF BILLS

    The President publicly read the title to

    HB 1087: FOR AN ACT ENTITLED, An Act to repeal the requirement of a certain public election notice.

    HB 1089: FOR AN ACT ENTITLED, An Act to revise provisions for accumulation of funds for certain municipal enterprises.

    HB 1113: FOR AN ACT ENTITLED, An Act to exempt from the excise tax on motor vehicles the transfer of motor vehicles to a nonprofit organization under certain conditions.

    And signed the same in the presence of the Senate.

    Sen. Haggar moved that the Senate do now adjourn, which motion prevailed and at 2:57 p.m. the Senate adjourned.

Kay Johnson, Secretary



^ Back to Top