3380th Legislative Session _ 2005

Committee: Senate Judiciary
Wednesday, February 02, 2005

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
    Gray
    Knudson
    Koetzle
    Koskan
    Moore
    Schoenbeck, Vice-Chair
    Abdallah, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Senator Gene Abdallah, Chair

MOTION:     TO APPROVE THE MINUTES OF MONDAY, JANUARY 31, 2005

Moved by:    Koetzle
Second by:    Knudson
Action:    Prevailed by voice vote.

         SB 133: provide for the payment of past due child support upon recovery of money in a legal proceeding.

Presented by:    Senator Jerry Apa
Proponents:    David Braun, Department of Social Services
        John W. Burke, self
        John Grosz, self
Opponents:    Tom Barnett, State Bar Association

MOTION:     AMEND SB 133

133ta
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:

     Any attorney or insurer conducting business within the state that obtains, receives, or possesses funds owed to any person in the amount of one thousand dollars or more shall provide notice to the department as provided in this Act before disbursing the funds. The notice shall be in the manner and form as prescribed by the department and may include written, fax, electronic, magnetic, or other formats. The notice shall state the person's full legal name, address, telephone number, social security number, and date of birth.

     Section 2. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:

     Within five days after receipt of the notice provided for in section 1 of this Act, the department shall notify the attorney or insurer whether the department is providing support enforcement services as defined in subdivision 25-7A-1(19) and, if so, the total amount of past-due child support owed by the person. Within fourteen days after notice is received from the department, the attorney or insurer shall withhold the amount of past due child support owed by the person and remit the funds to the department. If no notice is received from the department within five days, the attorney or insurer may disburse the total amount of the funds to the person or other interested person or entity entitled to the funds.

     Section 3. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:

     Any amounts owed to the department or the support obligee may only be withheld from the person's share of recovery and are secondary to payment of any fees, costs, liens, or subrogation interests arising from the claim or legal proceeding. The department may not receive more than the amount of the funds owed to the person.

     Section 4. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:

     For purposes of this Act, the term, person, is a natural person, and the term, insurer, includes any insurer who had received a certificate of authority to conduct business as provided in chapter 58-6, or any entity conducting business pursuant to chapter 58-32 or 58-41.

     Section 5. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:


     Any insurer or attorney who complies with the requirements of this Act is not subject to any civil liability for any conduct that is not in compliance with this Act.

     Section 6. That chapter 25-7A be amended by adding thereto a NEW SECTION to read as follows:

     The department may promulgate rules pursuant to chapter 1-26 regarding the format of the notices and the means of transmission of the notices."

Moved by:    Knudson
Second by:    Schoenbeck
Action:    Prevailed by voice vote.

MOTION:     DEFER SB 133 TO THE 41ST LEGISLATIVE DAY

Moved by:    Knudson
Second by:    Koetzle
Action:    Prevailed by roll call vote.(5-1-1-0)

Voting Yes:    Knudson, Koetzle, Moore, Schoenbeck, Abdallah

Voting No:    Gray

Excused:    Koskan

         SB 25: establish a fund for the payment of certain tobacco litigation expenses and to make an appropriation therefor.

Presented by:    Judy Payne, Bureau of Administration

MOTION:     DO PASS SB 25 AS AMENDED

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

Voting Yes:    Gray, Knudson, Koetzle, Moore, Schoenbeck, Abdallah

Excused:    Koskan

MOTION:     TO AMEND TITLE OF SB 25



25rta
     On page 1, line 1 of the printed bill, delete everything after " Act to " and insert "revise the purposes for which the extraordinary litigation fund may be used.".

     On page 1 , delete line 2 .

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

         SB 93: authorize qualified dispositions in trust.

Presented by:    Senator Dave Knudson
Proponents:    Jeff Rodman, First Premier Bank
        Pierce McDowell, SD Trust Company

MOTION:     AMEND SB 93

93ja
     On page 2, line 5 of the printed bill, delete " who is not a resident of this state and who, " .

     On page 6 , line 17, delete " subdivision (1) of this section " and insert "section 9 of this Act".

Moved by:    Knudson
Second by:    Gray
Action:    Prevailed by voice vote.

MOTION:     DO PASS SB 93 AS AMENDED

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

Voting Yes:    Gray, Knudson, Koetzle, Moore, Schoenbeck, Abdallah

Excused:    Koskan

MOTION:     PLACE SB 93 ON CONSENT CALENDAR


Moved by:    Schoenbeck
Second by:    Gray
Action:    Prevailed by voice vote.

         SB 144: limit the personal liability of persons in professional corporations and limited liability companies.

The Chair deferred SB 144 until Wednesday, February 9, 2005.

         SB 94: revise certain provisions regarding trusts.

Presented by:    Senator Dave Knudson
Proponents:    Roger Novotny, Division of Banking

MOTION:     AMEND SB 94

94ra
     On page 7, after line 19 of the printed bill, insert:

"
     Section 10. That § 51A-6A-44 be amended to read as follows:

     51A-6A-44.   When the director takes charge of any trust company, the director shall ascertain its actual condition as soon as possible by making a thorough investigation into its affairs and condition. If the director is satisfied that the trust company cannot resume business or liquidate its indebtedness to the satisfaction of its creditors, the director shall appoint a receiver and require the receiver to give such bond as the director considers proper. The director also shall fix reasonable compensation for the receiver, but the compensation for the receiver is subject to the approval of the circuit court of the county in which the trust company is located upon the application of any party in interest.

     Any receiver shall be a resident of the state and shall have had at least five years of experience with financial institutions. However, upon written application made within thirty days after the findings of insolvency, the director shall appoint as receiver any person whom the holders of more than sixty percent of the claims against the trust company agree upon in writing. The creditors may also agree upon the compensation and charges to be paid the receiver. Any receiver so appointed shall make a complete report to the director covering the receiver's acts and proceedings as a receiver. The director may remove for cause any receiver and appoint the receiver's successor.

     Section 11. That chapter 51-6A be amended by adding thereto a NEW SECTION to read as follows:


     No receiver, appointed pursuant to §  51A-6A-44, is liable to any person for good faith compliance with any law, statute, rule, or judgment, decree, or order of a court. Nor is any receiver liable to any person for any action taken or omitted unless a court finds that the receiver acted or failed to act as a result of misfeasance, bad faith, gross negligence, or reckless disregard of duty.

     Section 12. That § 51A-6A-1 be amended by adding thereto a NEW SUBDIVISION to read as follows:

     "Out-of-state trust institution," a nondepository corporation, limited liability company, or other similar entity chartered or licensed by the banking regulatory agency of a state, territory, or district, other than South Dakota, to engage in the trust company business in that state, territory, or district under the primary supervision of such regulator.

     Section 13. That subdivision (15) of § 51A-6A-1 be amended to read as follows:


             (15)      "Trust service office," any office, agency, or other place of business located within this state at which the powers granted to trust companies are exercised either by a trust company other than the place of business specified in the a trust company's certificate of authority , at which the powers granted to trust companies are exercised or within this state by an out-of-state trust institution . A trust service office does not include a trust service desk, as established in § 51A-6A-55.

     Section 14. That § 51A-6A-58 be amended to read as follows:

     51A-6A-58.   After first applying for and obtaining the approval of the commission, one or more trust service offices may be established and operated anywhere within this state by a trust company incorporated under the laws of this state or by an out-of-state trust institution, if and to the extent that the state, territory, or district in which the out-of-state trust institution is chartered or licensed to engage in a trust company business grants authority for a trust company organized and doing business under the laws of this state to establish an office in that state, territory, or district . An application to establish and operate a trust service office or to relocate an existing trust service office shall be in the form and contain the information as the director shall require. The application shall include an affidavit of publication of notice that applicant trust company or out-of-state institution intends to file an application to establish a trust service office or relocate an existing trust service office. This notice shall be published in a newspaper of general circulation in the county where the applicant trust company or out-of-state institution proposes to locate the trust service office. The notice shall be in the form prescribed by the commission and at a minimum shall contain the name and address of the applicant trust company or out-of-state institution , the location of the proposed trust service office, a solicitation for written comments concerning the proposed trust service office to be submitted to the commission, and provide for a comment period of not less than ten days prior to the commission's final consideration of the application.


     A trust company may establish a trust service office in another state, territory, or district and may conduct any activities at that office that are permissible for a trust company under the laws of that state, territory, or district subject to the laws of this state and subject to the rules, orders, or declaratory rules of the commission or the director. However, a trust company need not comply with the publication requirements of this section if opening a trust service office in another state, territory, or district. ".

Moved by:    Knudson
Second by:    Schoenbeck
Action:    Prevailed by voice vote.

MOTION:     DO PASS SB 94 AS AMENDED

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

Voting Yes:    Gray, Knudson, Koetzle, Moore, Schoenbeck, Abdallah

Excused:    Koskan

MOTION:     PLACE SB 94 ON CONSENT CALENDAR

Moved by:    Knudson
Second by:    Schoenbeck
Action:    Prevailed by voice vote.

         SB 146: to limit the time for bringing actions against certain professional corporations and professional practitioners.

Presented by:    Senator Dave Knudson
Proponents:    Ronald Olinger, self

MOTION:     DO PASS SB 146

Moved by:    Knudson
Second by:    Gray
Action:    Prevailed by roll call vote.(5-1-1-0)

Voting Yes:    Gray, Knudson, Moore, Schoenbeck, Abdallah


Voting No:    Koetzle

Excused:    Koskan

         SB 123: provide for an order of joint physical care over certain children whose parents exercise joint legal custody.

Presented by:    Senator Clarence Kooistra (handout #1)
Proponents:    John Grosz, self
        Randy Perkins, SD Coalition for Shared Parenting
        Ryan Brech, SD Coalition for Shared Parenting
        Ben Elliott, SD Coalition for Shared Parenting
Opponents:    Greg Brewers, SD Advocacy Network

MOTION:     AMEND SB 123

123oa
     On page 1, line 9 of the printed bill, after " law " insert ", whether oral or written,".

Moved by:    Koetzle
Second by:    Schoenbeck
Action:    Prevailed by voice vote.

MOTION:     DO PASS SB 123 AS AMENDED

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

Voting Yes:    Gray, Koetzle, Koskan, Moore, Schoenbeck, Abdallah

Excused:    Knudson

         SB 147: require the use of an ignition interlock device in motor vehicles used by certain persons guilty of a second violation of driving under the influence and to provide for certain penalties with regard to ignition interlock devices.

Presented by:    Senator Stanford Adelstein (handout #2)
Proponents:    Ann Hovdenes, Sun Shield Center
        Sandra Potter, Self, Custer, SD
        Lila Doud, self, Rapid City, SD


Opponents:    Roger Tellinghuisen, SD Trial Lawyers Association

MOTION:     DEFER SB 147 UNTIL WEDNESDAY, FEBRUARY 9, 2005

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

MOTION:     ADJOURN

Moved by:    Gray
Second by:    Knudson
Action:    Prevailed by voice vote.

Rena Ortbahn

____________________________

Committee Secretary
Gene G. Abdallah, Chair


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