JOURNAL OF THE SENATE
TWENTY-THIRD DAY
STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
The Senate convened at 2:00 p.m., pursuant to adjournment, the President presiding.
The prayer was offered by the Chaplain, Fr. Joe Holzhauser, followed by the Pledge of Allegiance led by Senate pages Bridgett Lemmel and Eliot Nielsen.
Roll Call: All members present except Sens. Diedrich and Wink who were excused.
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 22nd 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,
Lee A. Schoenbeck, Chair
Which motion prevailed.
Mr. President and Members of the Senate:
I have the honor to inform you that on February 12, 2024, I approved Senate Bills 5, 26, 27, 75, 79, and 87, and the same have been deposited in the office of the Secretary of State.
Respectfully submitted,
Kristi Noem
Governor
December 21, 2023
The Honorable Larry Rhoden
President of the Senate
State Capitol
Pierre, SD 57501
Dear President and Members of the Senate:
Pursuant to the provisions of Chapter 5-12 of the South Dakota Codified Laws and subject to your consent, I have the honor to inform you that I have reappointed James Lust, of Brown County, Aberdeen, South Dakota, to the South Dakota Building Authority.
This reappointment is effective June 6, 2023, and shall continue until January 18, 2027.
Sincerely,
Kristi Noem
Governor
The President announced the referral of the reappointment to the Committee on Commerce and Energy.
The Committee on Senate Commerce and Energy respectfully reports that it has had under consideration SB 114 and 207 which were deferred to the 41st Legislative Day.
Also MR. PRESIDENT:
The Committee on Senate Commerce and Energy respectfully reports that it has had under consideration SB 193 which was tabled.
The Committee on Senate Commerce and Energy respectfully reports that it has had under consideration HB 1091 and returns the same with the recommendation that said bill do pass, and having been certified as uncontested, be placed on the consent calendar.
Respectfully submitted,
David Wheeler, Chair
The Committee on Senate Education respectfully reports that it has had under consideration SB 184 which was deferred to the 41st Legislative Day.
Respectfully submitted,
Kyle Schoenfish, Chair
The Committee on Senate Judiciary respectfully reports that it has had under consideration SB 25 which was tabled.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration SB 95 and 176 which were deferred to the 41st Legislative Day.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration SB 146 and returns the same with the recommendation that said bill be amended as follows:
On page 1, line 5, of the Introduced bill, after "any" delete " verbal,"
On page 1, line 6, of the Introduced bill, after "written" delete the comma
On page 1, line 10, of the Introduced bill, after "means:
(1) Any" insert " current or former"
On page 1, line 12, of the Introduced bill, after "11-14;
(3) Any" insert " current or former"
On page 1, line 13, of the Introduced bill, after "Legislature;
(4) Any" insert " current or former"
On page 1, line 14, of the Introduced bill, after "office;
(5) Any" insert " current or former"
On page 1, line 17, of the Introduced bill, after "§" delete " 22-11-4 or"
On page 1, line 17, of the Introduced bill, after "22-18-1.1" delete the comma
On page 1, line 18, of the Introduced bill, after "superseded" delete the comma
On page 1, line 18, of the Introduced bill, after "§" delete " 22-11-4 or"
And that as so amended, SB 146 do pass.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration SB 214 and returns the same with the recommendation that said bill be amended as follows:
On page 1, line 1, of the Introduced bill, delete "address determinations regarding " and insert "provide a rebuttable presumption in favor of joint "
On the Introduced bill, delete everything after the enacting clause and insert:"
Section 1. That § 25-4A-21 be AMENDED:
25-4A-21.
In any custody dispute between parents, upon application
Upon the petition of either parent, the court shall
consider granting joint for the initial determination
regarding physical custody of a minor child, there is a
rebuttable presumption that equal or approximately equal time spent
between the child and each parent is in the best interest of the
minor child. This presumption may be rebutted by a preponderance of
evidence showing that joint physical custody is not in the best
interest of the child based on the factors set forth in §
25-4A-24.
The
court shall consider the factors set forth in § 25-4A-24,
and shall make written findings of fact and conclusions of
law regarding the best interests interest of
the minor child, unless waived by both parties in
accordance with § 25-4A-24, unless the parents have stipulated
to the terms of an agreement resolving the petition.
Section 2. That § 25-4A-22 be AMENDED:
25-4A-22.
The court shall determine the appropriate physical care,
custody, and control of a minor child, in accordance with §
25-4A-21, following the consideration of factors set forth in §
25-4-45.5. A finding by the court that a parent has a
conviction or a history of committing domestic
abuse or has an assault conviction as defined in § 25-4-45.5,
creates a rebuttable presumption that joint physical custody is not
in the best interests interest of the child.
Section 3. That § 25-4A-23 be AMENDED:
25-4A-23.
Prior to ruling on a petition for joint physical custody
petition under § 25-4A-21, the court may require
that the parties to parents participate
in a home study or a, custody evaluation.
Prior to the court ruling on a joint physical custody petition,
either parent may request mediation pursuant to § 25-4-56.
In
any case where the court orders the parties to participate in a home
study, custody evaluation, or custody mediation, the, or
mediation in accordance with § 25-4-56. The court shall
allocate the costs of the same any home study,
custody evaluation, or mediation required under this section
between the parties parents.
Section 4. That § 25-4A-24 be AMENDED:
25-4A-24.
In considering a contested request for The
presumption in favor of joint physical custody, in
addition to the traditional factors for determining the best
interests of a child, the court shall consider the following factors
under § 25-4A-21 may be rebutted upon a presentation of evidence
pertaining to:
(1) Whether each parent is a suitable physical custodian for the child;
(2) Whether each parent has an appropriate dwelling to support physical custody of the child;
(3) Whether the psychological and emotional needs and the development of the child will suffer due to lack of active contact with, and attention from, both parents if joint physical custody is not granted;
(4) Whether
one parent has denied the child, without just cause,
the child the opportunity for continuing contact with the
other parent. Facts supporting an application of the presumption in
§ 25-4-45.5 constitute just cause;
(5) Whether the parents can show mutual respect for and effectively communicate with each other regarding the child's needs. When considering this factor, the court shall include a determination of the degree to which the parents are in general agreement about their approach to daily child rearing matters;
(6) The extent to which both parents actively care for the child;
(7) Whether each parent can support the other parent's relationship with the child. When considering this factor, the court shall include a determination of conflict between the parents, as joint physical custody requires substantial and regular interaction between the parents on a myriad of issues;
(8) Whether the joint physical custody arrangement is in accord with the child's wishes or whether the child has strong opposition to joint physical custody, taking into consideration the child's age, maturity, and reason for the objection;
(9) Whether a parent has intentionally alienated or interfered with the other parent's relationship with the child;
(10) Whether one or both parents are opposed to joint physical custody. A parent's opposition to joint physical custody is not determinative in itself, but only one factor for the court to consider;
(11) The geographic proximity of the parents;
(12) Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
(13) Whether a parent allows another person custody or control of, or unsupervised access to, a child after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 22-24B;
(14) Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect, as set forth in § 25-4-45.8;
(15) Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
(16) Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(17) Whether
a parent is willing and capable able to
provide the child love, affection, guidance, and education in order
to impart the family's religion or creed;
(18) Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
(19) Whether a parent provides exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen;
(20) Whether a parent provides a stable and consistent home environment including the relationship and interaction of the child with the parents, stepparents, siblings, and extended families;
(21) The
extent of the child's adjustment in regards
regard to home, school, and community;
(22) Whether
a break in attachment with to the parent
with whom the child has formed a closer attachment would
cause detriment be detrimental due to the break in
continuity for the child; and
(23) Whether a parent is guilty of misconduct that may have a harmful effect on the child.
Section 5. That § 25-4A-25 be REPEALED.
If
both parents agree to joint physical custody of a child, the court is
not required to consider the factors set forth in § 25-4A-24.
Section 6. That § 25-4A-26 be REPEALED.
Nothing
in §§ 25-4A-21 to 25-4A-27, inclusive, creates a
presumption of joint physical custody. The court shall determine the
appropriate physical care, custody, and control of a minor child
based on a determination of the best interests of the child."
And that as so amended, SB 214 do pass.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration the nomination of Hank Prim to the South Dakota Interstate Compact for Adult Offender Supervision and returns the same with the recommendation that the Senate advise and consent to the confirmation of said appointment.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration the nomination of John L. Brown of Rapid City, South Dakota, to the Board of Pardons and Paroles and returns the same with the recommendation that the Senate advise and consent to the confirmation of said appointment.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration the nomination of Peter Lieberman of Minnehaha County, Sioux Falls, South Dakota, to the Board of Pardons and Paroles and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment, and that said reappointment having been certified as uncontested, be placed on the consent calendar.
Also MR. PRESIDENT:
The Committee on Senate Judiciary respectfully reports that it has had under consideration the nomination of Jan Steele of Codington County, Watertown, South Dakota, to the Board of Pardons and Paroles and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment, and that said reappointment having been certified as uncontested, be placed on the consent calendar.
The Committee on Senate Judiciary respectfully reports that it has had under consideration the nomination of Krista Heeren-Graber to the South Dakota Interstate Compact for Adult Offender Supervision and returns the same with the recommendation that the Senate advise and consent to the confirmation of said reappointment, and that said reappointment having been certified as uncontested, be placed on the consent calendar.
Respectfully submitted,
Helene Duhamel, Chair
The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 40, 55, 108, and 118 and finds the same correctly enrolled.
Respectfully submitted,
Lee A. Schoenbeck, Chair
MR. PRESIDENT:
The Committee on Legislative Procedure respectfully reports that SB 14 and 78 were delivered to her Excellency, the Governor, for her approval at 12:30 p.m., February 13, 2024.
Respectfully submitted,
I have the honor to inform your honorable body that SB 17 was tabled.
I have the honor to return herewith SB 40, 55, 108, and 118 which have passed the House without change.
I have the honor to inform your honorable body that the House has concurred in Senate amendments to HB 1029.
I have the honor to transmit herewith HB 1147, 1212, 1225, and 1236 which have passed the House and your favorable consideration is respectfully requested.
I have the honor to transmit herewith HCR 6007 and 6008 which have been adopted by the House and your concurrence is respectfully requested.
Respectfully,
HCR 6007: A CONCURRENT RESOLUTION, Encouraging the United States Department of Veteran Affairs to allow veterans to receive long-term care services at facilities that do not otherwise meet the requirements set by the department.
Was read the first time and referred to the Committee on Military and Veterans Affairs.
HCR 6008: A CONCURRENT RESOLUTION, opposing an initiated measure to place the right to an abortion in the Constitution of South Dakota.
Was read the first time and the President waived the committee referral pursuant to JR 6D-1.
Sen. Schoenbeck moved that HB 1197 be referred from the Committee on Judiciary to the Committee on Education.
Which motion prevailed.
Sen. Schoenbeck moved that HCR 6011 be referred from the Committee on Judiciary to the Committee on State Affairs.
Which motion prevailed.
Sen. Schoenbeck moved that SB 107 be referred from the Committee on Judiciary to the Committee on State Affairs.
Which motion prevailed.
Sen. Schoenbeck moved that HB 1123 be referred from the Committee on Judiciary to the Committee on State Affairs.
Sen. Crabtree moved that HB 1008 be deferred to Wednesday, February 14, 2024, the 24th legislative day.
Which motion prevailed.
HB 1147: FOR AN ACT ENTITLED, An Act to address discriminatory acts against entities participating in a 340B drug pricing program.
HB 1236: FOR AN ACT ENTITLED, An Act to recognize students as Rushmore State Athletes upon demonstrating prescribed levels of physical fitness.
Were read the first time and referred to the Committee on Health and Human Services.
HB 1212: FOR AN ACT ENTITLED, An Act to require certain vehicles to be equipped with mud flaps.
HB 1225: FOR AN ACT ENTITLED, An Act to define a multi-passenger bicycle and to provide for the regulation of multi-passenger bicycles.
Were read the first time and referred to the Committee on Transportation.
SB 96: FOR AN ACT ENTITLED, An Act to prohibit the use of a deepfake to influence an election, to provide a penalty therefor, and to declare an emergency.
Was read the second time.
Sen. Larson moved that SB 96 be amended as follows:
On page 1, line 11, of the Senate State Affairs Engrossed bill, after "candidate" delete " or influence the result of an election"
On page 2, line 3, of the Senate State Affairs Engrossed bill, after "broadcast" insert " or publish"
On page 2, line 3, of the Senate State Affairs Engrossed bill, after "deepfake" delete " and has made a good faith effort to establish that the depiction is not a deepfake"
On page 2, line 6, of the Senate State Affairs Engrossed bill, after "publication," delete " that"
On page 2, line 7, of the Senate State Affairs Engrossed bill, delete ", publishes a deepfake, if the publication clearly states the deepfake does not accurately represent the speech or conduct of the individual depicted" and insert " and is paid to publish or otherwise disseminate a deepfake"
On page 2, line 31, of the Senate State Affairs Engrossed bill, delete " the use" and insert " the person knowingly made use"
Which motion prevailed.
The question being "Shall SB 96 pass as amended?"
And the roll being called:
Yeas 21, Nays 11, Excused 2, Absent 0
Yeas: Beal, Bordeaux, Davis, Deibert, Foster, Frye-Mueller, Johnson, Klumb, Kolbeck (Jack), Kolbeck (Steve), Larson, Maher, Nesiba, Otten (Herman), Pischke, Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, and Zikmund
Nays: Bolin, Breitling, Crabtree, Duhamel, Hoffman, Hunhoff, Mehlhaff, Novstrup, Tobin, Wheeler, and Wiik
So the bill not having received an affirmative vote of a two-thirds majority of the members-elect, the President declared the bill lost.
The President announced that pursuant to JR 5-13.1, SB 96 was up for immediate reconsideration.
SB 96: FOR AN ACT ENTITLED, An Act to prohibit the use of a deepfake to influence an election, to provide a penalty therefor, and to declare an emergency.
Having had its second reading was up for reconsideration and final passage.
Sen. Nesiba moved that SB 96 be amended as follows:
On page 3, line 13, of the Senate State Affairs Engrossed bill, after "recording." delete "Section 7. Whereas, this Act is necessary for the immediate preservation of the public peace, health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval."
Which motion prevailed.
The question being "Shall SB 96 pass as amended?"
And the roll being called:
Yeas 22, Nays 10, Excused 2, Absent 0
Yeas: Beal, Bordeaux, Davis, Deibert, Foster, Frye-Mueller, Hoffman, Johnson, Klumb, Kolbeck (Jack), Kolbeck (Steve), Larson, Maher, Nesiba, Otten (Herman), Pischke, Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, and Zikmund
Nays: Bolin, Breitling, Crabtree, Duhamel, Hunhoff, Mehlhaff, Novstrup, Tobin, Wheeler, and Wiik
So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed.
The question being on the title.
Sen. Nesiba moved that the title to SB 96 be amended as follows:
On page 1, line 1, of the Senate State Affairs Engrossed bill, delete the comma and insert " and"
On page 1, line 2, of the Senate State Affairs Engrossed bill, after "therefor" delete ", and to declare an emergency"
Which motion prevailed and the title was so amended.
SB 137: FOR AN ACT ENTITLED, An Act to make an appropriation for the health and wellbeing of South Dakotans.
Was read the second time.
The question being "Shall SB 137 pass?"
And the roll being called:
Yeas 29, Nays 2, Excused 3, Absent 0
Yeas: Beal, Bolin, Bordeaux, Breitling, Crabtree, Davis, Deibert, Duhamel, Foster, Hoffman, Hunhoff, Johnson, Klumb, Kolbeck (Jack), Kolbeck (Steve), Larson, Maher, Mehlhaff, Nesiba, Novstrup, Otten (Herman), Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, Wheeler, Wiik, and Zikmund
Nays: Frye-Mueller and Pischke
Excused: Diedrich, Tobin, and Wink
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.
SB 138: FOR AN ACT ENTITLED, An Act to make an appropriation to provide for the development of South Dakota.
Was read the second time.
The question being "Shall SB 138 pass?"
And the roll being called:
Yeas 30, Nays 2, Excused 2, Absent 0
Yeas: Beal, Bolin, Bordeaux, Breitling, Crabtree, Davis, Deibert, Duhamel, Foster, Hoffman, Hunhoff, Johnson, Klumb, Kolbeck (Jack), Kolbeck (Steve), Larson, Maher, Mehlhaff, Nesiba, Novstrup, Otten (Herman), Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, Tobin, Wheeler, Wiik, and Zikmund
Nays: Frye-Mueller and Pischke
Excused: Diedrich and Wink
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.
SB 219: FOR AN ACT ENTITLED, An Act to modify provisions related to the control of counties and municipalities over medical marijuana establishments within their jurisdictions.
Was read the second time.
Sen. Wheeler moved that SB 219 be amended as follows:
On page 1, line 15, of the Senate Local Government Engrossed bill, after "ordinance" delete the comma
On page 1, line 15, of the Senate Local Government Engrossed bill, after "the" insert " regardless of whether it has enacted a zoning ordinance pursuant to title 11,"
On page 1, line 20, of the Senate Local Government Engrossed bill, after "requirements;" delete " or"
On page 1, line 25, of the Senate Local Government Engrossed bill, after "establishment" insert";
(5) Requirements for a medical cannabis establishment to obtain a local license, permit, or registration to operate; or
(6) Reasonable fees for any local license, permit, or registration"
On page 2, line 13, of the Senate Local Government Engrossed bill, after "municipality." delete "Section 4. That § 34-20G-60 be AMENDED:"
On page 2, line 14, of the Senate Local Government Engrossed bill, after "AMENDED:" delete "34-20G-60. "
On page 2, line 14, of the Senate Local Government Engrossed bill, after "34-20G-60. " delete "A local governmentThe governing body of a county or municipality may require a medical cannabis establishment to obtain a local license, permit, or registration to operate, and may charge a reasonable fee for the local license, permit, or registration. The governing body of a county or municipality may not require a medical cannabis establishment to obtain more than one local license, permit, or registration to operate a single establishment location."
On page 2, after line 30, of the Senate Local Government Engrossed bill, insert: "
Section 5. That § 34-20G-60 be REPEALED.
A
local government may require a medical cannabis establishment to
obtain a local license, permit, or registration to operate, and may
charge a reasonable fee for the local license, permit, or
registration."
Which motion prevailed.
The question being "Shall SB 219 pass as amended?"
And the roll being called:
Yeas 31, Nays 0, Excused 3, Absent 0
Yeas: Beal, Bolin, Bordeaux, Breitling, Crabtree, Davis, Deibert, Duhamel, Foster, Frye-Mueller, Hoffman, Hunhoff, Johnson, Klumb, Kolbeck (Jack), Kolbeck (Steve), Larson, Maher, Mehlhaff, Nesiba, Novstrup, Otten (Herman), Pischke, Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, Wheeler, Wiik, and Zikmund
Excused: Diedrich, Tobin, and Wink
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.
The President publicly read the title to
SB 40: FOR AN ACT ENTITLED, An Act to establish a criminal background check requirement for licensure as an occupational therapist or occupational therapy assistant.
SB 55: FOR AN ACT ENTITLED, An Act to remove multiple vehicle ownership as a condition for purchasing an additional park entry license at a reduced price.
SB 108: FOR AN ACT ENTITLED, An Act to revise a provision related to retrocession of jurisdiction over federal enclaves.
SB 118: FOR AN ACT ENTITLED, An Act to permit the use of an online management and communication platform to be used by homeowners who are governed by a restrictive contract.
HB 1034: FOR AN ACT ENTITLED, An Act to require hydrogen pipelines to be permitted by the Public Utilities Commission.
And signed the same in the presence of the Senate.
HC 8016: A LEGISLATIVE COMMEMORATION, Honoring the life of Kenneth Michael Prorok.
Sen. Rohl moved that the Senate do now adjourn, which motion prevailed and at 3:00 p.m. the Senate adjourned.
Peggy Laurenz, Secretary
12 copies were printed on recycled paper by the South Dakota Legislative Research Council at a cost of $.170 per page.