80th Legislative Session _ 2005

Committee: Senate Judiciary
Wednesday, February 09, 2005

                                            P - Present
                                            E - Excused
                                            A - Absent

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

OTHERS PRESENT: See Original Minutes

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

         SB 201: establish a procedure to resolve certain construction defect disputes.

Presented by:    Senator Ed Olson

MOTION:     TO TABLE SB 201

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

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

Excused:    Schoenbeck

         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

MOTION:     AMEND SB 147

147ra
     On page 2, line 2 of the printed bill, after " shall " insert " , unless the court finds that the specific circumstances of the case do not warrant it, ".

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

MOTION:     DO PASS SB 147 AS AMENDED

Moved by:    Knudson
Second by:    Koskan
Action:    Failed by roll call vote.(2-4-1-0)

Voting Yes:    Knudson, Koskan

Voting No:    Gray, Koetzle, Moore, Abdallah

Excused:    Schoenbeck

MOTION:     DEFER SB 147 TO THE 41ST LEGISLATIVE DAY

Moved by:    Koetzle
Second by:    Gray
Action:    Prevailed by roll call vote.(4-2-1-0)

Voting Yes:    Gray, Koetzle, Moore, Abdallah

Voting No:    Knudson, Koskan

Excused:    Schoenbeck

         SB 206: prohibit the imposition of certain death sentences if the defendant is not a serious and continuing threat to the lives of others.

Presented by:    Senator Dan Sutton
        Representative Hal Wick


Proponents:    Jeremiah D. Murphy, self, Sioux Falls
        Greg Brewers, Nat'l Coalition To Abolish The Death Penalty
        Travis Benson, Catholic Diocese Of Sioux Falls
Opponents:    Larry Long, Attorney General
        Chuck Schroyer, SD States Attorneys Assn.

MOTION:     DEFER SB 206 TO THE 41ST LEGISLATIVE DAY

Moved by:    Koskan
Second by:    Knudson
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION DO PASS SB 206

Moved by:    Koetzle
Second by:    Knudson
Action:    Failed by roll call vote.(3-4-0-0)

Voting Yes:    Koetzle, Moore, Schoenbeck

Voting No:    Gray, Knudson, Koskan, Abdallah

ORIGINAL MOTION:     DEFER SB 206 TO THE 41ST LEGISLATIVE DAY

Moved by:    Koskan
Second by:    Knudson
Action:    Prevailed by roll call vote.(5-2-0-0)

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

Voting No:    Koetzle, Moore

The gavel was passed to Vice-Chair Schoenbeck

         SB 204: revise certain provisions regarding living wills and health care decisions by agents.

Presented by:    Senator Jay Duenwald

MOTION:     AMEND SB 204

204sa
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section 1. That § 34-12C-3 be amended to read as follows:

     34-12C-3.   In the absence of a living will, durable power of attorney for health care or the appointment of a guardian of the person, or if neither the attorney in fact nor guardian is available to consent, a health care decision for an incapacitated person may be made by the following members of the incapacitated person's family who are available to consent, in the order stated:

             (1)      The spouse, if not legally separated;
             (2)      An adult child;
             (3)      A parent;
             (4)      An adult sibling;
             (5)      A grandparent or an adult grandchild;
             (6)      An adult aunt or uncle or an adult niece or nephew.

     However, any person may, before a judicial adjudication of incompetence or incapacity, disqualify any member of his the person's family from making a health care decision for him the person . The disqualification shall appear in a document signed by the person or may be made by a notation in his the person's medical record, if made at his the person's direction.

     Any member of the incapacitated person's family may delegate the authority to make a health care decision to another family member in the same or succeeding class. The delegation shall be signed and may specify conditions on the authority delegated.

     Any person authorized to make a health care decision for an incapacitated person shall be guided by strictly implement the express wishes of the incapacitated person, if known , and shall otherwise act . If the express wishes of the incapacitated person are not known, the person authorized to make a health care decision for the incapacitated person shall make the decision in good faith, in the incapacitated person's best interest, and may shall not arbitrarily refuse consent . Whenever making any health care decision for the incapacitated person, the person available to consent , and shall consider the recommendation of the attending physician, the decision the incapacitated person would have made if the incapacitated person then had decisional capacity, if known, the inherent value of human life and its preservation, and the decision that would be in the best interest of the incapacitated person.

     Section 2. That § 34-12C-1 be amended to read as follows:

     34-12C-1.   Terms used in this chapter mean:

             (1)      "Attending physician," the physician who at the time of reference has primary responsibility for the health care of a person;

             (2)      "Durable power of attorney for health care," an instrument executed pursuant to § 59-7- 2.1 that authorizes its attorney in fact to make a health care decision or to consent to health care on behalf of its principal;

             (3)      "Health care," any care, treatment, service, or procedure to maintain, diagnose, or treat a person's physical or mental condition. The term also includes admission to, and personal and custodial care provided by, a licensed health care facility as defined in § 34-12-1.1;

             (4)      "Health care decision," the determination of the health care to be provided to a person;

             (5)      "Health care provider," any licensed health care facility and any person, corporation, or organization licensed, certified, or otherwise authorized or permitted by law to administer health care;

             (6)      "Incapacitated person," any person who is incapable of giving informed consent to health care;

             (7)      "Informed consent," consent voluntarily, knowingly, and competently given after explanation of the information reasonably necessary to form an intelligent and informed decision to consent to or refuse a proposed medical procedure or treatment. This information includes disclosure of significant risks inherent in or incident to abstention from a proposed medical procedure or treatment, probabilities of success in view of the gravity of the patient's condition, and alternative treatments or procedures, if reasonably appropriate;

             (8)     "Person available to consent," any person who is authorized to make a health care decision for an incapacitated person and whose existence is known to the health care provider and who, in the good faith judgment of the health care provider, is reasonably available for consultation and is willing and competent to make an informed health care decision.

     Section 3. That chapter 34-12C be amended by adding thereto a NEW SECTION to read as follows:

     No person authorized to make a health care decision for an incapacitated person may authorize the withholding or withdrawal from the incapacitated person of comfort care and artificial nutrition or hydration. However, artificial nutrition or hydration may be withheld or withdrawn if:

             (1)    In reasonable medical judgment:

             (a)    The provision of artificial nutrition or hydration is not medically possible;

             (b)    The provision of artificial nutrition or hydration would hasten death; or

             (c)    The medical condition of the incapacitated person is such that provision of artificial nutrition or hydration would not contribute to sustaining life or providing comfort, hygiene, or human dignity or relief of pain;

             (2)    There is clear and convincing evidence that the incapacitated person, when having decisional capacity, gave informed consent to withdrawing or withholding artificial nutrition or hydration in the applicable circumstances.

     Even in the exception listed in subdivision (2) of this section, artificial nutrition or hydration may not be withheld or withdrawn if it is needed for comfort, hygiene, or human dignity or the relief of pain.

     Reasonable medical judgment means a medical judgment that would be made applying commonly accepted medical standards to the incapacitated person's case.

     Section 4. That chapter 34-12C be amended by adding thereto a NEW SECTION to read as follows:

     If a person authorized to make a health care decision for an incapacitated person directs the provision of life-sustaining treatment or artificial nutrition and hydration, any physician or health care provider who has responsibility for the treatment and care of the individual must provide the directed treatment or artificial nutrition and hydration in those circumstances so long as it is technically feasible. A physician or health care provider who objects to providing such treatment may instead transfer the individual to a physician or health care provider willing to honor the declaration, but must continue to provide the treatment or care until the transfer is effectuated.

     Section 5. That § 34-12D-3 be amended to read as follows:

     34-12D-3.   A declaration may, but need not, be in the following form:

LIVING WILL DECLARATION

     This is an important legal document. This document directs the medical treatment you are to receive in the event you are unable to participate in your own medical decisions and you are in a terminal condition. This document may state what kind of treatment you want or do not want to receive.

     This document can control whether you live or die. Prepare this document carefully. If you use this form, read it completely. You may want to seek professional help to make sure the form does what you intend and is completed without mistakes.

     This document will remain valid and in effect until and unless you revoke it. Review this document periodically to make sure it continues to reflect your wishes. You may amend or revoke this document at any time by notifying your physician and other health-care providers. You should give copies of this document to your physician and your family. This form is entirely optional. If you choose to use this form, please note that the form provides signature lines for you, the two witnesses whom you have selected and a notary public.

TO MY FAMILY, PHYSICIANS, AND ALL THOSE CONCERNED WITH MY CARE:

     I, ____ willfully and voluntarily make this declaration as a directive to be followed if I am in a terminal condition and become unable to participate in decisions regarding my medical care.

     With respect to any life-sustaining treatment, I direct the following:

     (Initial only one of the following optional directives if you agree. If you do not agree with any of the following directives, space is provided below for you to write your own directives).

     _ NO LIFE-SUSTAINING TREATMENT. I direct that no life-sustaining treatment be provided. If life-sustaining treatment is begun, terminate it.

     _ TREATMENT FOR RESTORATION. Provide life-sustaining treatment only if and for so long as you believe treatment offers a reasonable possibility of restoring to me the ability to think and act for myself.

     _ TREAT UNLESS PERMANENTLY UNCONSCIOUS. If you believe that I am permanently unconscious and are satisfied that this condition is irreversible, then do not provide me with life-sustaining treatment, and if life-sustaining treatment is being provided to me, terminate it. If and so long as you believe that treatment has a reasonable possibility of restoring consciousness to me, then provide life-sustaining treatment.

     _ MAXIMUM TREATMENT. Preserve my life as long as possible , but do not provide treatment that is not in accordance with accepted medical standards as then in effect .

     (Artificial nutrition and hydration is food and water provided by means of a nasogastric tube or tubes inserted into the stomach, intestines, or veins. If food and water are withdrawn, withheld, or denied, starvation or dehydration may be the cause of death and not the terminal condition. If you do not wish to receive this form of treatment artificial nutrition and hydration , you must initial the statement below which reads: "I intend to include this treatment, artificial nutrition and hydration among the 'life-sustaining treatment' that may be withheld or withdrawn.")

     With respect to artificial nutrition and hydration, I wish to make clear that

     (Initial only one)

     _ I intend to include this treatment artificial nutrition and hydration among the "life-sustaining treatment" that may be withheld or withdrawn.

     _ I do not intend to include this treatment artificial nutrition and hydration among the "life-sustaining treatment" that may be withheld or withdrawn.

     (If you do not agree with any of the printed directives and want to write your own, or if you want to write directives in addition to the printed provisions, or if you want to express some of your other thoughts, you can do so here).

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Date: __________________    _______________________________________
        (your signature)
____________________________    _______________________________________
(your address)    (type or print your signature)

     The declarant voluntarily signed this document in my presence.

     Witness _________________________
     Address _________________________
     Witness _________________________
     Address _________________________

     On this the ______ day of ________, ______, the declarant, _______________, and witnesses _______________, and ________ personally appeared before the undersigned officer and signed the foregoing instrument in my presence. Dated this ________ day of ________, ______.

______________________________ Notary Public

My commission expires: ____________________.

     Section 6. That § 59-7-2.5 be amended to read as follows:



     59-7-2.5.   The attorney-in-fact or agent , if authorized, may make any health care decisions for the principal which the principal could make individually if he the principal had decisional capacity. However, all such decisions shall be made in accordance with accepted medical practice. Whenever making any health care decision for the principal, the attorney-in-fact or agent shall implement the express wishes of the principal, if known. If the express wishes of the principal are not known, the attorney in fact shall make the decision in good faith, shall not arbitrarily refuse consent, and shall consider the recommendation of the attending physician, the decision that the principal would have made if the principal then had decisional capacity, if known the inherent value of human life and its preservation , and the decision that would be in the best interest of the principal.

     Section 7. That § 59-7-2.7 be amended to read as follows:

     59-7-2.7.   The guardian, attorney-in-fact , or agent may not authorize the withholding or withdrawal from the principal of comfort care and artificial nutrition or hydration. However, artificial nutrition or hydration may be withheld or withdrawn if:

             (1)      Artificial nutrition or hydration is not needed for comfort care or the relief of pain and the attending physician reasonably believes that the principal's death will occur within approximately one week; or
             (2)      Artificial nutrition or hydration cannot be physically assimilated by the principal; or
             (3)      The burden of providing artificial nutrition or hydration outweighs its benefit, provided that the determination of burden refers to the provision of artificial nutrition or hydration itself and not to the quality of the continued life of the principal; or
             (4)      There is clear and convincing evidence that artificial nutrition or hydration was refused by the person prior to loss of decisional capacity; or the power of attorney directs that artificial nutrition or hydration not be given or specifically authorizes the attorney-in-fact or agent to make that decision; or prior to the loss of decisional capacity there is clear and convincing evidence that the principal expressed the desire that artificial nutrition or hydration not be given.

             (1)    In reasonable medical judgment;

             (a)    The provision of artificial nutrition or hydration is not medically possible;

             (b)    The provision of artificial nutrition or hydration would hasten death; or

             (c)    The medical condition of the principal is such that provision of artificial nutrition or hydration would not contribute to sustaining life or providing comfort, hygiene, or human dignity, or relief of pain;

             (2)    The principal has executed a living will or a durable power of attorney for healthcare, either of which specifically authorizes the withholding or withdrawal of artificial nutrition or hydration, to the extent that the authorization applies;

             (3)    The principal has executed a written power of attorney pursuant to §  59-7-2.1 specifically authorizing the attorney-in-fact or agent to make that decision; or

             (4)    There is clear and convincing evidence that the principal, when having decisional capacity, gave informed consent, as defined in subdivision 34-12C-1(7) to withdrawing or withholding artificial nutrition or hydration in the applicable circumstances.

     Even in the exceptions listed in subdivisions (1), (2), (3) , and (4) of this section, artificial nutrition or hydration may not be withheld or withdrawn if it is needed for comfort , hygiene, human dignity, or the relief of pain.

     Reasonable medical judgment means a medical judgment that would be made applying commonly accepted medical standards to the principal's case.

     Section 8. That chapter 59-7 be amended by adding thereto a NEW SECTION to read as follows:

     If an individual with decisional capacity, or a durable power of attorney for health care or an attorney-in-fact or an agent, if authorized, directs the provision of life-sustaining treatment or artificial nutrition and hydration, any physician or health care provider who has responsibility for the treatment and care of the individual must provide the directed treatment or artificial nutrition and hydration in those circumstances so long as it is technically feasible. A physician or health care provider who objects to providing such treatment may instead transfer the individual to a physician or health care provider willing to honor the declaration, but must continue to provide the treatment or care until the transfer is effectuated.

     Section 9. Nothing in this Act shall render ineffective or change any of the terms of any decision made, oral directive given, or document executed pursuant to chapter 34-12C, 34-12D, or 59-7 prior to the effective date of this Act."


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

MOTION:     DEFER SB 204 UNTIL ANOTHER DAY

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


         SB 217: revise certain cross references in the code with regard to the implementation of the South Dakota Business Corporation Act.

Presented by:    Senator Dave Knudson
Proponents:    Tom Barnett, State Bar Association of South Dakota

MOTION:     AMEND SB 217

217jc
     On page 3, line 10 of the printed bill, delete " section " and insert " sections ".

     On page 3 , line 17, delete " 1 to 26, inclusive, and sections 371 to " and insert " 7 and 8 ".

     On page 3 , line 18, delete " 389, inclusive, " .

     On page 16 , delete lines 5 to 17 , inclusive, and insert:

"

     (2) In this chapter the following have the meanings defined in § 47-2-1 Terms in this chapter mean :

             (a)      "Board , " the board of directors of a corporation;

             (b)      "Class , " if used with reference to shares, means a category of shares that differs in designation or one or more rights or preferences from another category of shares of the corporation;

             (c)      "Director , " a member of the board;

             (d)      "Good faith , " honesty in fact in the conduct of the act or transaction concerned;

             (e)      "Intentionally , " that the person referred to either has a purpose to do or fail to do the act or cause the result specified or believes that the act or failure to act, if successful, will cause that result. A person intentionally violates a statute if the person intentionally does the act or causes the result prohibited by the statute, or if the person intentionally fails to do the act or cause the result required by the statutes, even though the person may not know of the existence or constitutionality of the statute or the scope or meaning of the term used in the statute;

             (f)      "Knows," or has "knowledge , " has actual knowledge of it. A person does not know of a fact merely because the person has reason to know of the fact;

             (g)      "Notice , " is given by a corporation to a person when mailed to the person at the last known address of the person, when communicated to the person orally, when handed to the person, when left at the office of the person with a clerk or other person in charge of the office, or if there is no one in charge, when left in a conspicuous place in the office, or if the office is closed or the person to be notified has no office, or when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion then residing therein. Notice is given to a corporation when mailed or delivered to it at its registered office. Notice by mail is given when deposited in the United States mail with sufficient postage affixed;

             (h)      "Officer , " a person elected, appointed, authorized, or otherwise designated as an officer by the board, and any other person considered elected as an officer;

             (i)      "Organization , " a domestic or foreign corporation partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise and any other legal or commercial entity;

             (j)      "Outstanding shares , " all shares duly issued and not reacquired by a corporation;

             (k)      "Series . , " a category of shares, within a class of shares authorized or issued by a corporation by or pursuant to its articles, that have some of the same rights and preferences as other shares within the same class, but that differ in designation or one or more rights and preferences from another category of shares within that class. ".

     On page 16 , delete lines 18 to 23 , inclusive.

     On page 20 , delete lines 21 and 22 , and insert:

"licensed to do business within this state pursuant to chapter 47-8 47-34A ; a corporation organized under the".


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

MOTION:     DO PASS SB 217 AS AMENDED

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


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

Excused:    Abdallah

MOTION:     PLACE SB 217 ON CONSENT CALENDAR

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

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

Presented by:    Ronald Olinger, self - Pierre (handout #1)
Proponents:    Tom Barnett, State Bar Association

MOTION:     AMEND SB 144

144ra
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. An obligation of a professional corporation or limited liability company formed pursuant to chapter 47-11, 47-11A, 47-11B, 47-11C, 47-11D, 47-11E, 47-12, 47-13, 47-13A, or 47- 13B, whether arising in contract, tort, or otherwise, is the obligation of the professional corporation or limited liability company. No shareholder, director, or officer of a professional corporation or member or manger of a limited liability company is personally liable, directly or indirectly, by way of contribution or otherwise, for such an obligation solely by being or so acting as the shareholder, director, or officer of a professional corporation or member or manager of a limited liability company. This limitation of liability does not extend to amounts owed to the State of South Dakota or its political subdivisions for any taxes, or any penalty or interest on such taxes.

     Section 2. Any professional corporation or limited liability company may amend its articles of incorporation to be consistent with this Act.

     Section 3. The code counsel shall codify sections 1 and 2 of this Act in chapters 47-11, 47-11A, 47-11B, 47-11C, 47-11D, 47-11E, 47-12, 47-13, 47-13A, and 47-13B.

     Section 4. That   § §  47-11A-8, 47-11A-9, 47-11A-10, 47-11A-11, and 47-11A-12 be repealed.

     Section 5. That § §  47-11B-17, 47-11B-18, 47-11B-19, 47-11B-20, and 47-11B-21 be repealed.

     Section 6. That § §  47-11C-17, 47-11C-18, 47-11C-19, 47-11C-20, and 47-11C-21 be repealed.



     Section 7. That § §  47-11D-17, 47-11D-18, 47-11D-19, 47-11D-20, and 47-11D-21 be repealed.

     Section 8. That § §  47-11E-8, 47-11E-9, 47-11E-10, 47-11E-11, and 47-11E-12 be repealed.

     Section 9. That subdivision 47-13A_2(7) be repealed.

     Section 10. That § §  47-13B-8, 47-13B-9, 47-13B-10, 47-13B-11, 47-13B-12 be repealed."


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

MOTION:     DO PASS SB 144 AS AMENDED

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

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

Voting No:    Koetzle

Excused:    Koskan

MOTION:     ADJOURN

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

Rena Ortbahn

____________________________

Committee Secretary
Gene G. Abdallah, Chair


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