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Senate Journal 3/8/2017 09:00 AM

JOURNAL OF THE SENATE

NINETY-SECOND SESSION




THIRTY-FIFTH DAY




STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Wednesday, March 8, 2017

    The Senate convened at 9:00 a.m., pursuant to adjournment, the President presiding.

    The prayer was offered by the Chaplain, Pastor Josh Baumann, followed by the Pledge of Allegiance led by Senate pages Emma Mesman and Roger Sheets.

    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,
Brock L. Greenfield, Chair

    Which motion prevailed.
MESSAGES FROM THE HOUSE

MR. PRESIDENT:

    I have the honor to return herewith SB 138 and 166 which have passed the House without change.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has concurred in Senate amendments to HB 1103 and 1113.

Also MR. PRESIDENT:

    I have the honor to return herewith SB 25, 27, 33, 35, 54, 95, 128, 130, 147, 151, 171, and 176 which have been amended by the House and your concurrence in the amendments is respectfully requested.

Respectfully,
Arlene Kvislen, Chief Clerk

MOTIONS AND RESOLUTIONS

    Sen. Curd moved that the Senate do now recess until 11:00 a.m., which motion prevailed and at 9:10 a.m., the Senate recessed.

RECESS

    The Senate reconvened at 11:00 a.m., the President presiding.

    Sen. Tidemann moved that the Senate do now recess until 11:30 a.m., which motion prevailed and at 11:02 a.m., the Senate recessed.

RECESS

    The Senate reconvened at 11:30 a.m., the President Pro Tempore presiding.


    Sen. Tidemann moved that the Senate do not concur in House amendments to SB 35 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President Pro Tempore announced as such committee Sens. Peters, Sutton, and Tidemann.

    Sen. Cronin moved that the Senate do now recess until 2:00 p.m., which motion prevailed and at 11:50 a.m., the Senate recessed.

RECESS

    The Senate reconvened at 2:00 p.m., the President presiding.

    There being no objection, the Senate reverted to Order of Business No. 5.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 138 and 166 and finds the same correctly enrolled.

Also MR. PRESIDENT:

    The Committee on Legislative Procedure respectfully reports that SB 22, 23, 28, 29, 43, 44, 60, 81, 88, 90, 98, 99, 102, 103, 116, 117, 120, 124, and 164 were delivered to his Excellency, the Governor, for his approval at 9:10 a.m., March 8, 2017.

Respectfully submitted,
Brock L. Greenfield, Chair

MOTIONS AND RESOLUTIONS

    Sen. Tidemann moved that the Senate do concur in House amendments to SB 78.

    The question being on Sen. Tidemann's motion that the Senate do concur in House amendments to SB 78.


    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; White; Wiik; Youngberg

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

    Sen. Bolin moved that the Senate do concur in House amendments to SB 104.

    The question being on Sen. Bolin's motion that the Senate do concur in House amendments to SB 104.

    And the roll being called:

    Yeas 35, Nays 0, Excused 0, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; White; Wiik; Youngberg

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

    Sen. Rusch moved that the Senate do concur in House amendments to SB 141.

    The question being on Sen. Rusch's motion that the Senate do concur in House amendments to SB 141.

    And the roll being called:

    Yeas 29, Nays 6, Excused 0, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Kennedy; Killer; Klumb; Kolbeck; Langer; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; White; Wiik


    Nays:
Jensen (Phil); Maher; Monroe; Nelson; Peters; Youngberg

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

    Sen. Greenfield (Brock) moved that the Senate do not concur in House amendments to SB 54 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President announced as such committee Sens. Greenfield (Brock), Russell, and Sutton.

    Sen. Greenfield (Brock) moved that the Senate do not concur in House amendments to SB 171 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President announced as such committee Sens. Greenfield (Brock), Netherton, and Killer.

    Sen. Ewing moved that the Senate do not concur in House amendments to SB 176 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President announced as such committee Sens. Ewing, White, and Heinert.

    Sen. Curd moved that the Senate do concur in House amendments to SB 151.

    Sen. Sutton moved as a substitute motion that the Senate do not concur in House amendments to SB 151 and 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 adjust the differences between the two houses.

    Which motion lost.

    The question being on Sen. Curd's pending motion that the Senate do concur in House amendments to SB 151.

    And the roll being called:

    Yeas 17, Nays 18, Excused 0, Absent 0


    Yeas:
Bolin; Cammack; Curd; Ewing; Greenfield (Brock); Jensen (Phil); Klumb; Kolbeck; Maher; Netherton; Novstrup; Otten (Ernie); Rusch; Solano; Stalzer; Tapio; Tidemann

    Nays:
Cronin; Frerichs; Haverly; Heinert; Kennedy; Killer; Langer; Monroe; Nelson; Nesiba; Partridge; Peters; Russell; Soholt; Sutton; White; Wiik; Youngberg

    So the motion not having received an affirmative vote of a majority of the members-elect, the President declared the motion lost.

    Sen. Greenfield (Brock) moved that the Senate do not concur in House amendments to SB 151 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President announced as such committee Sens. Curd, Maher, and Wiik.

    Sen. Curd moved that the Senate do concur in House amendments to SB 95.

    The question being on Sen. Curd's motion that the Senate do concur in House amendments to SB 95.

    And the roll being called:

    Yeas 28, Nays 7, Excused 0, Absent 0

    Yeas:
Cronin; Curd; Frerichs; Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Nesiba; Netherton; Novstrup; Otten (Ernie); Peters; Rusch; Russell; Soholt; Solano; Stalzer; Sutton; Tapio; Tidemann; Youngberg

    Nays:
Bolin; Cammack; Ewing; Greenfield (Brock); Partridge; White; Wiik

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

    Sen. Maher moved that the Senate do concur in House amendments to SB 130.

    The question being on Sen. Maher's motion that the Senate do concur in House amendments to SB 130.

    And the roll being called:


    Yeas 29, Nays 6, Excused 0, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Nesiba; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Soholt; Solano; Sutton; Tidemann; White; Wiik; Youngberg

    Nays:
Jensen (Phil); Monroe; Nelson; Russell; Stalzer; Tapio

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

    Sen. Peters moved that the Senate do concur in House amendments to SB 147.

    The question being on Sen. Peters' motion that the Senate do concur in House amendments to SB 147.

    And the roll being called:

    Yeas 33, Nays 0, Excused 2, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Heinert; Jensen (Phil); Kennedy; Killer; Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Nesiba; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Russell; Soholt; Stalzer; Sutton; Tapio; Tidemann; White; Wiik; Youngberg

    Excused:
Netherton; Solano

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

    Sen. Russell moved that the Senate do concur in House amendments to SB 25.

    The question being on Sen. Russell's motion that the Senate do concur in House amendments to SB 25.

    And the roll being called:

    Yeas 24, Nays 11, Excused 0, Absent 0


    Yeas:
Bolin; Cammack; Cronin; Curd; Greenfield (Brock); Haverly; Jensen (Phil); Klumb; Kolbeck; Maher; Monroe; Nelson; Netherton; Novstrup; Partridge; Rusch; Russell; Solano; Stalzer; Tapio; Tidemann; White; Wiik; Youngberg

    Nays:
Ewing; Frerichs; Heinert; Kennedy; Killer; Langer; Nesiba; Otten (Ernie); Peters; Soholt; Sutton

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

    Sen. Kennedy rose to a point of order objecting to actions on SB 25 and SB 27 because they had not been placed on the Senate calendar.

    Sen. Kennedy was not supported.

    Sen. Russell moved that the Senate do concur in House amendments to SB 27.

    The question being on Sen. Russell's motion that the Senate do concur in House amendments to SB 27.

    And the roll being called:

    Yeas 30, Nays 5, Excused 0, Absent 0

    Yeas:
Bolin; Cammack; Cronin; Curd; Ewing; Frerichs; Greenfield (Brock); Haverly; Jensen (Phil); Klumb; Kolbeck; Langer; Maher; Monroe; Nelson; Netherton; Novstrup; Otten (Ernie); Partridge; Peters; Rusch; Russell; Soholt; Solano; Stalzer; Tapio; Tidemann; White; Wiik; Youngberg

    Nays:
Heinert; Kennedy; Killer; Nesiba; Sutton

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

    Sen. Novstrup moved that the Senate do not concur in House amendments to SB 128 and 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 adjust the differences between the two houses.

    Which motion prevailed and the President announced as such committee Sens. Novstrup, White, and Kolbeck.


    Sen. Curd moved that when we adjourn today, we adjourn to convene at 9:00 a.m. on Thursday, March 9th, the 36th legislative day.

    Which motion prevailed.

    Sen. Peters moved that the Senate Journal of February 7, 2017 the eighteenth legislative day be amended as follows:

    On page 332, after line 28 insert:

    In response to dissent and protest see the Attorney General's Official Opinion No. 17-02, as found on page 655 of the Senate Journal.

    Which motion prevailed.

LETTER FROM ATTORNEY GENERAL

February 23, 2017

The Honorable Stace Nelson
State Senator
24739 420th Ave.
Fulton, SD 57340

OFFICIAL OPINION No. 17-02

Re:    Whether "vote trading" and "vehicle bills" are prohibited

Dear Senator Nelson,

You and eleven other legislators have requested an official opinion from the Attorney General's Office based on the following questions:

QUESTIONS:

1.    Whether legislators are prohibited from engaging in "vote trading?"
2.    Whether legislators are prohibited from using "vehicle bills?"

ANSWERS:

1.    "Vote trading" that does not involve physical violence, coercion, or the exchange of a thing of value is not prohibited by the constitution, statute, or legislative rule.

2.    "Vehicle bills" are not prohibited by the constitution, statute, or legislative rule.


OFFICIAL OPINION 17-02

IN RE QUESTION 1:

The South Dakota State Constitution prohibits bribery of legislators: "Any person who shall give, demand, offer, directly or indirectly, any money, testimonial, privilege or personal advantage, thing of value to any . . . member of the Legislature, to influence him in the performance of any of his official or public duties, shall be guilty of bribery and shall be punished in such manner as shall be provided by law." S.D. Const. Art. 3, § 28. SDCL 2-12-9, as amended by HB 1069 (2017), provides:

        Any person who threatens, harms, offers to make bribes of money or other inducements, offers or gives gifts or other types of consideration to any person for the purpose of obtaining sponsorship or introduction of legislation, influencing the form of legislation, attempting to influence any member of the Legislature to vote for or against any measure pending therein, or for or against any candidate for any office to be elected or appointed by the Legislature, attempting to influence any officer of either house of the Legislature in naming of members and officers of committees, or in the performance of any of his duties, or attempting to influence or control the action of any member in relation to any matter coming before the Legislature, or any of its committees is guilty of a Class 1 misdemeanor.

Further, SDCL 22-12A-4 and -5 prohibit offering bribes to or solicitation of bribes by a legislator. A plain reading of those laws reveal that they prohibit physical violence, coercion, and exchange of a thing of value to influence or secure a legislator's vote. See In re Taliaferro, 2014 S.D. 82, 6, 856 N.W.2d 805, 806-07 (quoting In re Estate of Ricard, 2014 S.D. 54, 8, 851 N.W.2d 753, 755-56).

"Vote trading," also known as "horse trading" or "logrolling," is not prohibited by existing law. It is defined as "[t]he trading of influence or votes among legislators to achieve passage of projects of interest to one another." American Heritage Dictionary Second College Edition 403 (1983). Those acts are "the swap of one official act for another." United States v. Blagojevich,
794 F.3d 729, 735 (7th Cir. 2015). For example, "Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution." Id. The Blagojevich court explained, "Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly." Id. Our Legislature implicitly recognizes the propriety of "vote trading" as its Joint Rules do not prohibit such conduct. See South Dakota Legislature's Legislator Reference Book ("Reference Book"). As members of the Legislature, you have the ability to address your concerns about "vote trading" by Legislative Rule or statutory enactment.


IN RE QUESTION 2:

Our State Constitution mandates that legislative bills meet two requirements. First, each bill must contain an "enacting clause." S.D. Const. Art. 3, § 18. Second, each bill must contain only one subject that is expressed in the bill's title. S.D. Const. Art. 3, § 21. "[N]o case . . . condemns a comprehensive title solely because of its generality." Patrick M. Garry, The South Dakota Constitution 76 (Oxford University Press 2014) (quoting Garrey v. Schnider, 105 N.W.2d 860, 863 (S.D. 1960)). "Section 21 prohibits including in an act any subject matter that is not embraced in the title, but this section does not prohibit making the title broader than the matter actually contained in the body of the act." Id. (citing State ex rel. Smith v. Jameson, 19 N.W.2d 505, 509 (S.D. 1945)). Further, even if a title can be more effectively written, a court cannot find the title defective because a more appropriate title could have been used. Id. (citing Morrow v. Wipf, 115 N.W. 1121 (S.D. 1908)).

"Vehicle bills," otherwise known as "shell bills" or "carcass bills," are "[a] legislative vessel used by an amending chamber/body usually unrelated to the eventual product." Priscilla H.M. Zotti, Nicholas M. Schmitz, The Origination Clause: Meaning, Precedent, and Theory from the 12th to 21st Century, 3 Brit. J. Am. Legal Stud. 71, 103 n.110 (2014).

"Vehicle bills" are constitutional in South Dakota. Both the House of Representatives and the Senate may freely amend bills that are passed by the other chamber. S.D. Const. Art. 3, § 20. In South Dakota, an amendment is defined as "to change 'by modification, deletion, or addition.'" Taylor Properties, Inc. v. Union County, 1998 S.D. 90, 17, 583 N.W.2d 638, 641 (quoting Black's Law Dictionary 81 (6th Ed. 1990)). A special type of amendment, known as an "amendment by substitution," may occur during the legislative process. That special amendment is undertaken "by striking out and inserting [language] that replaces an entire main motion or a paragraph or other readily divisible part within a main motion[.]" Black's Law Dictionary 98-99 (10th Ed. 2014). As the Georgia Supreme Court recognized, amendment by substitution is a universally accepted parliamentary procedure. Shadrick v. Bledsoe, 198 S.E. 535, 543 (Ga. 1938) (citing Mell's Parliamentary Practice, § 136; Jefferson's Manual of Parliamentary Practice, § 467; Manual of the General Assembly of Georgia, 1935-36, p. 159, Rule 95).

Our Legislature, like Georgia, recognizes amendment by substitution. South Dakota Legislature's Student Guide: Glossary of Legislative Terms ("Student Guide"). Joint Rule 6E-2 allows "hoghouse amendments:" "Any substitute bill shall be treated as an amendment and shall be governed by the rules governing amendments." Reference Book. "Hoghouse amendments" are "a procedure used in the Legislature whereby a committee or a member from the floor will move to strike everything after the enacting clause of a bill and insert in lieu thereof the substance of an entirely new bill." Student Guide. As members of the Legislature, you have the ability to address your concerns about "vehicle bills" by Legislative Rule or statutory enactment.

CONCLUSION

Based on the above analysis, it is my opinion that "vote trading" that does not involve physical violence, coercion, or an exchange of a thing of value is not prohibited by the constitution, statute, or legislative rule. "Vote trading" is a common legislative practice that is an established

landmark in South Dakota's legislative landscape. Nor are "vehicle bills" prohibited as long as they contain an "enacting clause" and satisfy the "one subject" limitation. If the Legislature wishes to prohibit "vote trading" or "vehicle bills," it has the power to do so by amendment of its own rules or through legislation.

Sincerely,
Marty J. Jackley
ATTORNEY GENERAL

    There being no objection, the Senate reverted to Order of Business No. 7.

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Anderson, Bartels, and Ahlers as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 35.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has failed to concur in Senate amendments to HB 1035 and has appointed Reps. Otten (Herman), Reed, and May as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses.

    The President announced as such committee Sens. Bolin, Nesiba, and Monroe.

SIGNING OF BILLS

    The President publicly read the title to

    SB 138: FOR AN ACT ENTITLED, An Act to provide certain provisions regarding asbestos bankruptcy trust claims.

    SB 166: FOR AN ACT ENTITLED, An Act to provide certain provisions excluding business-to-business lending from certain money lending limitations.

    HB 1001: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding prison or jail population cost estimates.


    HB 1063: FOR AN ACT ENTITLED, An Act to repeal certain provisions relating to the payment of special assessments.

    HB 1072: FOR AN ACT ENTITLED, An Act to repeal and revise certain provisions relating to permits to carry a concealed pistol.

    HB 1092: FOR AN ACT ENTITLED, An Act to revise certain alcoholic beverage licensing provisions concerning the manufacturing and sale of cider.

    HB 1097: FOR AN ACT ENTITLED, An Act to revise certain unemployment insurance contribution rates, to provide for an unemployment insurance administrative fee, and to provide for the distribution of the fee.

    HB 1101: FOR AN ACT ENTITLED, An Act to increase the penalty for performing an abortion of an unborn child capable of feeling pain.

    HB 1112: FOR AN ACT ENTITLED, An Act to revise certain provisions related to construction managers on certain public improvement projects.

    HB 1141: FOR AN ACT ENTITLED, An Act to provide for a legislative task force to consider certain legislation proposed to revise provisions regarding the constitutional amendment, initiative and referendum process in South Dakota.

    HB 1143: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding underage prostitution.

    HB 1155: FOR AN ACT ENTITLED, An Act to revise the penalty for aggravated assault with the intent to disfigure the victim.

    HB 1156: FOR AN ACT ENTITLED, An Act to allow a concealed pistol in the capitol with an enhanced concealed pistol permit.

    HB 1165: FOR AN ACT ENTITLED, An Act to provide for annually updated financial interest statements for any person elected to statewide or local office.

    HB 1173: FOR AN ACT ENTITLED, An Act to revise the distribution of funds from the building South Dakota fund.

    HB 1183: FOR AN ACT ENTITLED, An Act to provide and revise certain provisions regarding mental health procedures in criminal justice, to make an appropriation therefor, and to declare an emergency.

    And signed the same in the presence of the Senate.

    There being no objection, the Senate reverted to Order of Business No. 7.


MESSAGES FROM THE HOUSE

MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has failed to concur in Senate amendments to HB 1157 and has appointed Reps. Qualm, Peterson (Kent), and Hawley as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses.

    The President announced as such committee Sens. Cammack, Frerichs, and Cronin.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Mickelson, Gosch, and Soli as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 54.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Haggar, Beal, and Schaefer as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 171.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Rhoden, Hawley, and Kaiser as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 176.

Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Rozum, Dennert, and Wismer as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 128.


Also MR. PRESIDENT:

    I have the honor to inform your honorable body that the House has appointed Reps. Qualm, Rhoden, and Hawley as a committee of three on the part of the House to meet with a like committee on the part of the Senate to adjust the differences between the two houses on SB 151.

    Sen. Frerichs moved that the Senate do now adjourn, which motion prevailed and at 3:55 p.m. the Senate adjourned.

Kay Johnson, Secretary

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