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South Dakota Ballot Question Attorney General Explanations
2006 Constitutional Amendments
The following amendments to the State Constitution are
submitted to the voters by the Legislature or by petition. The amendments will
not become effective unless approved by majority vote.
Constitutional Amendment C
Title: An Amendment to Article XXI of the
South Dakota Constitution, relating to marriage.
Attorney General Explanation:
South Dakota statutes currently limit marriage
to unions between a man and a woman. However, the State Constitution does not
address marriage.
Amendment C would amend the State Constitution
to allow and recognize marriage only between a man and a woman. It would also
prohibit the Legislature from allowing or recognizing civil unions, domestic
partnerships or other quasi-marital relationships between two or more persons
regardless of sex.
A vote �Yes� will change the Constitution.
A vote �No� will leave the Constitution as it
is.
Full Text of Constitutional Amendment C:
Section 2. That Article XXI of the Constitution of
the State of South Dakota, be amended by adding thereto a NEW SECTION to read as
follows:
� 9. Only marriage between a man and a woman shall be
valid or recognized in South Dakota. The uniting of two or more persons in a
civil union, domestic partnership, or other quasi-marital relationship shall not
be valid or recognized in South Dakota.
Constitutional Amendment D
Title: An Amendment to Article XI, Section 2
of the South Dakota Constitution, relating to real property assessment for
taxation.
Attorney General Explanation:
The State Constitution currently requires that
all taxable property be valued for tax purposes at no more than its actual
value, and that all property be classified and taxed uniformly.
The proposed amendment to the
State Constitution would base the taxable value of property upon �acquisition
value� for property sold after January 1, 2007. The Legislature may authorize
the assessed value of such property to be annually adjusted by up to three
percent, using the 2003 assessed property valuation as the base year.
The taxable value of the property
may be further adjusted if the property has changed use or classification or has
been subject to addition, improvement or destruction.
The limitations of this amendment will not
apply to centrally assessed property or to any property sold prior to January 1,
2007.
A vote �Yes� will change the
Constitution.
A vote �No� will leave the Constitution as it
is.
Full Text of Constitutional Amendment D:
� 2. To the end that the burden of taxation may be equitable upon all property,
and in order that no property which is made subject to taxation shall escape,
the Legislature is empowered to divide all property including moneys and credits
as well as physical property into classes and to determine what class or classes
of property shall be subject to taxation and what property, if any, shall not be
subject to taxation. Taxes shall be uniform on all property of the same class,
and shall be levied and collected for public purposes only. Taxes may be imposed
upon any and all property including privileges, franchises and licenses to do
business in the state. Gross earnings and net incomes may be considered in
taxing any and all property, and the valuation of property for taxation purposes
shall never exceed the actual value thereof.
The Legislature is empowered to establish a procedure for each class of
property detailing the methods that shall be used to value property. The value
of property, except centrally assessed property, shall be based on the
acquisition value of the property and shall apply to any real property sales
occurring after January 1, 2007. The assessed value of such property may be
annually adjusted by a factor not to exceed three percent as determined by the
Legislature. The annual adjustment provided in this section in the value of such
property shall be applicable each year beginning with the 2003 assessed property
valuation, which is hereby established as the base year for this
valuation procedure. However, the value of property may be further adjusted if
there is a change in use or classification or to account for any addition,
improvement, or destruction to the property.
The Legislature is empowered to impose taxes upon incomes and occupations, and
taxes upon incomes may be graduated and progressive-and reasonable exemptions
may be provided.
Constitutional Amendment E
Title: An Amendment to Article VI of the
South Dakota Constitution, relating to judicial decisions.
Attorney General Explanation:
Citizens serving on juries, school
boards, city councils, county commissions, or in similar capacities, and
prosecutors and judges, are all required to make judicial decisions. Their
decisions may be reversed on appeal, or they may be removed from office for
misconduct or by election. However, they cannot be made to pay money damages
for making such decisions. This allows them to do their job without fear of
threat or reprisal from either side.
The proposed amendment to the State
Constitution would allow thirteen special grand jurors to expose these decision
makers to fines and jail, and strip them of public insurance coverage and up to
one-half of their retirement benefits, for making decisions which break rules
defined by the special grand jurors. Special grand jurors are drawn from those
who submit their names and registered voters.
The proposed amendment is retroactive. The
special grand jurors may penalize any decision-maker still alive for decisions
made many years ago.
If approved, the proposed amendment will likely
be challenged in court and may be declared to be in violation of the US
Constitution. If so, the State may be required to pay attorneys fees and
costs.
A vote �Yes� will change the Constitution.
A vote �No� will leave the Constitution as it
is.
Full Text of Constitutional Amendment E:
�28. Judicial Accountability
Initiative Law
1. Definitions. Where appropriate, the singular shall include
the plural; and for purposes of this Amendment, the following terms shall mean:
a.
Blocking: Any act that impedes the lawful conclusion of a case, to
include unreasonable delay and willful rendering of an unlawful or void judgment
or order.
b.
Judge: Justice, judge, magistrate judge, judge pro tem, and all other
persons claiming to be shielded by judicial immunity.
c.
Juror: A Special Grand Juror.
d.
Strike: An adverse immunity decision or a criminal conviction against a
judge.
2. Immunity. No immunity shall extend to any judge of this State
for any deliberate violation of law, fraud or conspiracy, intentional violation
of due process of law, deliberate disregard of material facts, judicial acts
without jurisdiction, blocking of a lawful conclusion of a case, or any
deliberate violation of the Constitutions of South Dakota or the United States,
notwithstanding Common Law, or any other contrary statute.
3. Special Grand Jury. For the purpose of returning power to the
People, there is hereby created within this State a thirteen-member Special
Grand Jury with statewide jurisdiction having power to judge both law and fact.
This body shall exist independent of statutes governing county Grand Juries.
Their responsibility shall be limited to determining, on an objective standard,
whether any civil lawsuit against a judge would be frivolous or harassing, or
fall within the exclusions of immunity as set forth in paragraph 2, and whether
there is probable cause of criminal conduct by the judge complained against.
4. Professional Counsel. The Special Grand Jury shall have
exclusive power to retain non-governmental advisors, special prosecutors, and
investigators, as needed, who shall serve no longer than one year, and
thereafter shall be ineligible to serve; except a special prosecutor may be
retained to prosecute ongoing cases in which they are involved through all
appeals and any complaints to the Special Grand Jury. The Special Grand Jury may
hire clerical staff, as needed, without time limitation.
5. Establishment of Special Grand Jury Facility. Within ninety
days following the passage of this Amendment, the Legislature shall provide a
suitable facility for the Special Grand Jury centrally located in the State, but
not within a mile of any judicial body.
6. Annual Funding. The Legislature shall cause to be deducted
one and nine-tenths percent from the gross judicial salaries of all judges,
which amount shall be deposited regularly into an exclusive trust account
created by this Amendment in paragraph 10 for its operational expenses, together
with filing fees under paragraph 7, surcharges under paragraph 8, forfeited
benefits of disciplined judges under paragraph 18, and any fines imposed by
sentencing under paragraph 16.
7. Filing Fees. Attorneys representing a party filing a civil
complaint or answer before the Special Grand Jury, shall, at the time of filing,
pay a fee equal to the filing fee due in a civil appeal to the State Supreme
Court. Individuals filing a civil complaint or answer on their own behalf,
before the Special Grand Jury, as a matter of right, shall, at the time of
filing, post a fee of fifty dollars, or file a declaration, which shall remain
confidential, stating they are impoverished and unable to pay and/or object to
such fee.
8. Surcharges. Should this Amendment lack sufficient funding
through its fines, fees, and forfeitures (including deductions in paragraph 6),
the Legislature shall impose appropriate surcharges upon the civil court filing
fees of corporate litigants as necessary to supplement the funding of this
Amendment.
9. Compensation of Jurors. Each Juror shall receive a salary
commensurate to that of a Circuit Court judge, prorated according to the number
of days actually served by the Juror.
10. Annual Budget. The Special Grand Jury shall have an annual
operational budget commensurate to double the combined salaries of the thirteen
Jurors serving full time, which sum shall be initially deposited by the
Legislature into an exclusive trust account to be annually administered by the
State Treasurer. Should the trust balance, within any budget year, drop to less
than an amount equivalent to the annual gross salaries of seven Circuit Court
judges, the State Treasurer shall so notify the Legislature which shall
replenish the account, prorated based on the actual average expenditures during
the budget year. Should the trust balance in any subsequent year exceed the
annual operational budget at the beginning of a new budget year, the State
Treasurer shall transfer such excess to the state treasury.
11. Jurisdiction. The Special Grand Jury shall have exclusive
power to appoint a foreperson, establish rules assuring their attendance, to
provide internal discipline, and to remove any of its members on grounds of
misconduct. The Special Grand Jury shall immediately assign a docket number to
each complaint brought. Except as provided in paragraphs 17 and 22, no complaint
of misconduct shall be considered by the Special Grand Jury unless the
complainant shall have first attempted to exhaust all judicial remedies
available in this State within the immediately preceding six-month period. (Such
six-month period, however, shall not commence in complaints of prior fraud or
blocking of a lawful conclusion until after the date the Special Grand Jury
becomes functional. This provision applies remedially and retroactively.) Should
the complainant opt to proceed to the United States Supreme Court, such
six-month period shall commence upon the disposition by that Court.
12. Qualifications of Jurors. A Juror shall have attained to the
age of thirty years, and have been nine years a citizen of the United States,
and have been an inhabitant of South Dakota for two years immediately prior to
having his/her name drawn. Those not eligible for Special Grand Jury service
shall include elected and appointed officials, members of the State Bar, judges
(active or retired), judicial, prosecutorial and law enforcement personnel,
without other exclusion except previous adjudication of mental incapacity,
imprisonment, or parole from a conviction of a felonious crime against persons.
13. Selection of Jurors. The Jurors shall serve without
compulsion and their names shall be publicly drawn at random by the Secretary of
State from the list of registered voters and any citizen submitting his/her name
to the Secretary of State for such drawing. The initial Special Grand Jury shall
be established within thirty days after the fulfillment of the requirements of
paragraph 5.
14. Service of Jurors. Excluding the establishment of the
initial Special Grand Jury, each Juror shall serve one year. No Juror shall
serve more than once. On the first day of each month, one Juror shall be rotated
off the Special Grand Jury and a new Juror seated, except in January it shall be
two. Vacancies shall be filled on the first of the following month in addition
to the Jurors regularly rotated, and the Juror drawn to fill a vacancy shall
complete only the remainder of the term of the Juror replaced.
15. Procedures. The Special Grand Jury shall serve a copy of the
filed complaint upon the subject judge and notice to the complainant of such
service. The judge shall have twenty days to serve and file an answer. The
complainant shall have fifteen days to reply to the judge's answer. (Upon timely
request, the Special Grand Jury may provide for extensions for good cause.) In
criminal matters, the Special Grand Jury shall have power to subpoena witnesses,
documents, and other tangible evidence, and to examine witnesses under oath. The
Special Grand Jury shall determine the causes properly before it with their
reasoned findings in writing within one hundred twenty calendar days, serving on
all parties their decision on whether or not immunity shall apply as a defense
to any civil action that may thereafter be pursued against the judge. A
rehearing may be requested of the Special Grand Jury within fifteen days with
service upon the opposition. Fifteen days shall be allowed to reply thereto.
Thereafter, the Special Grand Jury shall render final determination in writing
within thirty days. All allegations in the complaint shall be liberally
construed in favor of the complainant. The Jurors shall keep in mind, in making
their decisions, that they are entrusted by the People of this State with the
duty of restoring judicial accountability and a perception of justice, and are
not to be swayed by artful presentation by the judge. They shall avoid all
influence by judicial and government entities. The statute of limitations on any
civil suit brought pursuant to this Amendment against a judge shall not commence
until a final decision by the Special Grand Jury. Special Grand Jury files shall
always remain public record following their final determination. A majority of
seven shall determine any matter.
16. Indictment. Should the Special Grand Jury also find probable
cause of criminal conduct on the part of any judge against whom a complaint is
docketed, it shall have the power to indict such judge, except where double
jeopardy attaches. The Special Grand Jury shall, without voir dire beyond
personal impartiality, relationship, or linguistics, cause to be impaneled
twelve special trial jurors, plus alternates, which trial jurors shall be
instructed that they have power to judge both law and fact. The Special Grand
Jury shall also select a non-governmental special prosecutor and a judge with no
more than four years on the bench from a county other than that of the defendant
judge, to maintain a fair and orderly proceeding. The trial jury shall be
selected from the same pool of jury candidates as any regular jury. The special
prosecutor shall thereafter prosecute the cause to a conclusion, having all the
powers of any other prosecutor within this State. Upon conviction, sentencing
shall be the province of the special trial jury, and not that of the selected
judge. Such sentence shall conform to statutory provisions.
17. Criminal Procedures. In addition to any other provisions of
this Amendment, a complaint for criminal conduct against a judge may be brought
directly to the Special Grand Jury, when all the following conditions have been
met: (1) an affidavit or declaration of criminal conduct has been lodged with
the appropriate prosecutorial entity within ninety days of the commission of the
alleged crime; (2) the prosecutor declines to prosecute, or one hundred twenty
days has passed following the lodging of such affidavit or declaration, and
prosecution has not commenced; (3) an indictment, if sought, has not been
specifically declined on the merits by a county Grand Jury; and (4) the criminal
statute of limitations has not run. Any criminal conviction (including a plea
bargain) under any judicial process shall constitute a strike.
18. Removal. Whenever any judge has received three strikes, the
judge shall be permanently removed from office, and thereafter shall not serve
in any State judicial office. Judicial retirement for such removed judge shall
not exceed one-half of the benefits to which such judge would have otherwise
been entitled. Retirement shall not avert third-strike penalties.
19. Public Indemnification. No judge complained against, or sued
civilly by a complainant pursuant to this Amendment, shall be defended at public
expense or by any elected or appointed public counsel, nor shall any judge be
reimbursed from public funds for any losses sustained under this Amendment.
20. Enforcement. No person exercising strict enforcement of the
findings of a Special Grand Jury shall be held liable civilly, criminally, or in
contempt.
21. Redress. The provisions of this Amendment are in addition to
other redress that may exist and are not mutually exclusive.
22. Challenges. No judge under the jurisdiction of the Special
Grand Jury, or potentially affected by the outcome of a challenge hereto, shall
have any jurisdiction to sit in judgment of such challenge. Such pretended
adjudication shall be null and void for all purposes and a complaint for such
misconduct may be brought at any time, without charge, before the Special Grand
Jury by class action, or by any adversely affected person.
23. Preeminence. Preeminence shall be given to this Amendment in
any case of conflicts with statute, case law, common law, or constitutional
provision. The foreperson of the Special Grand Jury shall read, or cause to be
read, this Amendment to the respective Jurors every month. Should any part of
this Amendment be determined unconstitutional, the remainder shall remain in
full force and effect as though no challenge thereto existed.
Constitutional Amendment F
Title: An Amendment to Article III of the
South Dakota Constitution, relating to the Legislature.
Attorney General Explanation:
This proposed amendment to
the State Constitution includes recommendations by the Constitution Revision
Commission.
The amendment would remove the current
limitation on expense reimbursements received by legislators, and would allow
legislators to receive salary, per diem, expenses and mileage reimbursement as
provided by law.
The amendment would remove the
current specific prohibitions against enacting private or special laws. The
Legislature would be restricted by a general prohibition against enacting a
special law when a general or local law can be made applicable.
The amendment would remove the Congressional
term limit, which the federal courts have found unconstitutional. The procedure
for introduction of a bill would be shortened. The amendment would require a
two-thirds vote to close a legislative session to the public and prohibit any
vote to be taken in a closed session. The amendment would allow the Legislature
to exercise emergency powers in the event of man-made and natural disasters.
A vote �Yes� will change the Constitution.
A vote �No� will leave the Constitution as it
is.
Full Text of Constitutional Amendment F:
Section 2. That Article III, section 2 of the
Constitution of the State of South Dakota, be amended to read as follows:
� 2. After the Legislature elected for the years
1937 and 1938 the The number of members of the house of
representatives shall not be less than fifty nor more than seventy-five ,
and the number of members of the senate shall not be less than twenty-five nor
more than thirty-five.
The sessions of the Legislature shall be biennial except as otherwise
provided in this Constitution.
Section 3. That Article III, section 6 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 6. The terms of office of the members of the Legislature shall be two
years; they shall receive for their services the salary fixed by law under the
provisions of � 2 of article XXI of this Constitution , and five cents for
every mile of necessary travel in going to and returning from the place of
meeting of the Legislature on the most usual route .
No person may serve more than four consecutive terms or a total of eight
consecutive years in the senate and more than four consecutive terms or a total
of eight consecutive years in the house of representatives. However, this
restriction does not apply to partial terms to which a legislator may be
appointed or to legislative service before January 1, 1993 .
A regular session of the Legislature shall be held in each odd-numbered
year and shall not exceed forty legislative days, excluding Sundays, holidays
, and legislative recess, except in cases of impeachment, and members
not exceed forty legislative days in each odd-numbered year and shall not
exceed thirty-five legislative days in each even-numbered year except in cases
of impeachment. Sundays, holidays, and days of legislative recess shall not be
included as legislative days. Members of the Legislature shall receive no
other pay or perquisites except salary , expenses, per diem , and mileage
as provided by law .
A regular session of the Legislature shall be held in each even-numbered
year beginning with the year 1964 and shall not exceed thirty-five legislative
days, excluding Sundays, holidays and legislative recess, except in cases of
impeachment, and members of the Legislature shall receive no other pay or
perquisites except salary and mileage.
Section 4. That Article III, section 13 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 13. Each house shall keep a journal of its proceedings and publish the
same from time to time, except such parts as require secrecy, and the
as provided by law. The yeas and nays of members on any question shall be
taken at the desire of one-sixth of those present and entered upon the journal.
Section 5. That Article III, section 14 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 14. In all elections to be made by the Legislature the members thereof
shall vote viva voce and their votes shall be entered in the journal.
Section 6. That Article III, section 15 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 15. The sessions of each house and of the committee of the whole
shall be open, unless when the business is such as ought to be kept secret
All legislative sessions and joint sessions shall be open to the public
unless a two-thirds majority of the membership declares the business is such as
ought to be kept secret. No votes may be taken at any session or meeting closed
to the public .
Section 7. That Article III, section 17 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 17. Every bill shall be read twice entered upon the journal
, by number and title once , when introduced , and
once upon shall be read, by number and title, prior to final passage
, but one reading at length may be demanded at any time before final passage
.
Section 8. That Article III, section 23 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 23. The Legislature is prohibited from enacting any private or
special laws in the following cases:
1. Granting divorces.
2. Changing the names of persons or places, or constituting one person the
heir at law of another.
3. Locating or changing county seats.
4. Regulating county and township affairs.
5. Incorporating cities, towns and villages or changing or amending the
charter of any town, city or village, or laying out, opening, vacating or
altering town plats, streets, wards, alleys and public ground.
6. Providing for sale or mortgage of real estate belonging to minors or
others under disability.
7. Authorizing persons to keep ferries across streams wholly within the
state.
8. Remitting fines, penalties or forfeitures.
9. Granting to an individual, association or corporation any special or
exclusive privilege, immunity or franchise whatever.
10. Providing for the management of common schools.
11. Creating, increasing or decreasing fees, percentages or allowances of
public officers during the term for which said officers are elected or
appointed.
But the Legislature may repeal any existing special law relating to the
foregoing subdivisions.
In all other cases where a general law can be applicable no special law
shall be enacted may not pass any special or local law when a general law
can be made applicable. Whether a general law can be made applicable shall be a
matter for judicial determination .
Section 9. That Article III, section 29 of the Constitution of the State
of South Dakota, be amended to read as follows:
� 29. Notwithstanding any general or special provisions of the
Constitution, in order to insure continuity of state and local governmental
operations in periods of emergency resulting from disasters a natural
or man-made disaster or a disaster caused by enemy attack, the Legislature
shall have the power and the immediate duty (1) to provide for prompt and
temporary succession to the powers and duties of public offices, of whatever
nature and whether filled by election or appointment, the incumbents of which
may become unavailable for carrying on the powers and duties of such offices,
and (2) to adopt such other measures as may be necessary and proper for
insuring the continuity of governmental operations. In the exercise of the
powers hereby conferred the Legislature shall in all respects conform to the
requirements of this Constitution except to the extent that in the judgment of
the Legislature so to do would be impracticable or would admit of undue delay.
Section 10. That Article III, section 32 of the Constitution of the State
of South Dakota, be repealed:
� 32. Commencing with the 1992 election, no person may be elected to
more than two consecutive terms in the United States senate or more than six
consecutive terms in the United States house of representatives.
2006 Initiated Measures
The following initiated measures were proposed by petition
for submission to the voters. These initiated measures will not become effective
unless approved by majority vote.
Initiated Measure 2
Title: An Initiative to increase the tax on
cigarettes and tobacco products and to dedicate the revenues.
Attorney General Explanation:
South Dakota currently taxes tobacco products.
The proposed law would increase taxation on tobacco products sold in the state.
The tax on a 20 stick cigarette package would be raised by $1.00; the tax on a
25 stick cigarette package would be raised by $1.25. The tax on all other
tobacco products such as cigars, roll-your-own, and chewing tobacco, would
increase from 10 percent to 35 percent of the wholesale price.
The proposed law would deposit up to $30
million of tobacco tax revenue into the state general fund. The next $5
million, if any, will be deposited in the tobacco prevention and reduction trust
fund. Tobacco tax revenue in excess of $35 million, if any, will be divided
among the property tax reduction fund, the education enhancement trust fund, and
the health care trust fund. The proposed law also establishes continuous
appropriations out of the tobacco prevention and reduction trust fund for
specified purposes.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 2:
Section 1. That � 10-50-3 be amended to read as follows:
10-50-3. A tax is imposed, whether or not a
sale occurs, at the following rates on all cigarettes held in this state for
sale by any person:
Class A, on cigarettes weighing not more than
three pounds per thousand, twenty-six seventy-six and one-half
mills on each cigarette.
Class B, on cigarettes weighing more than three
pounds per thousand, twenty-six seventy-six and one-half mills on
each cigarette.
Section 2. That � 10-50-61 be amended to read as follows:
10-50-61. In addition to the tax imposed by �
10-50-3, there is imposed, whether or not a sale occurs, a tax upon all tobacco
products in this state and upon any person engaged in business as a licensed
distributor or licensed wholesaler thereof, at the rate of ten
thirty-five percent of the wholesale purchase price of such tobacco
products. Such tax shall be imposed at the time the distributor or wholesaler
brings or causes to be brought into this state tobacco products for sale; makes,
manufactures, or fabricates tobacco products in this state for sale in this
state; or ships or transports tobacco products to dealers in this state to be
sold by those dealers. For the purposes of this chapter, wholesale purchase
price is the price for which a manufacturer sells tobacco products to a licensed
distributor or licensed wholesaler exclusive of any discount or other reduction.
Section 3. That � 10-50-52 be amended to read as follows:
10-50-52. The money received by the
secretary of revenue and regulation from the tax imposed by this chapter shall
be credited by him to the state general fund. The first thirty million
dollars in revenue collected annually pursuant to this chapter shall be
deposited in the general fund. All revenue in excess of thirty million dollars
collected annually shall be deposited in the tobacco prevention and reduction
trust fund. Five million dollars of the revenue deposited annually in the
tobacco prevention and reduction trust fund pursuant to this section shall be
used to implement the tobacco prevention and reduction program. Thirty-three
percent of any revenue deposited in the tobacco prevention and reduction trust
fund in excess of five million dollars shall be transferred to the property tax
reduction fund. Thirty-three percent of any revenue deposited in the tobacco
prevention and reduction trust fund in excess of five million dollars shall be
transferred to the education enhancement trust fund. Thirty-four percent of any
revenue deposited in the tobacco prevention and reduction trust fund in excess
of five million dollars shall be transferred to the health care trust fund.
Section 4. There is hereby annually appropriated from the
tobacco prevention and reduction fund the sum of one million seven hundred
thousand dollars ($1,700,000), or so much thereof as may be necessary, to the
Department of Health for the purpose of creating a grant program for community
and school based initiatives.
There is hereby annually appropriated from the tobacco
prevention and reduction fund the sum of two million one hundred seventy
thousand dollars ($2,170,000), or so much thereof as may be necessary, to the
Department of Health for the purpose of funding tobacco
cessation and state-wide programs.
There is hereby annually appropriated from the tobacco
prevention and reduction fund the sum of one million one hundred thirty thousand
dollars ($1,130,000), or so much thereof as may be necessary, to the Department
of Health for the purpose of funding public education; surveillance, data
collection, and evaluation programs; and management and accountability programs
related to tobacco use.
Section 5. The secretary of the Department of Health shall approve vouchers
and the state auditor shall draw warrants to pay expenditures authorized by this
Initiative.
Section 6. The effective date of this Initiative shall be
January 1, 2007.
Initiated Measure 3
Title: An Initiative to prohibit starting a
school term prior to the last day of August.
Attorney General Explanation:
State law currently allows local school boards
to establish the start of a regular school term on any date. The proposed law
would prohibit local school boards from establishing the start of a regular
school term prior to the last day of August.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 3:
Section 1. That � 13-26-2 be amended to read as follows:
13-26-2 Time required in school term.--Make up time. Summer term. The
school board or governing body shall operate kindergarten through grade twelve
in its schools. The school board shall operate grades one through twelve for at
least a nine-month regular term in any one school year, and the number of hours
in a school term for kindergarten shall be set pursuant to � 13-26-1. The
regular school term may be conducted on a year-round basis and shall begin on a
date established by the school board��. However, no regular
school term may begin prior to the last day of August. The Board of
Education shall promulgate rules pursuant to chapter 1-26 governing the
operation and scheduling of year-round schools. Any school board or governing
body may release graduating high school seniors from school before the end of
the regular term. Make up time for school closing because of weather, disease,
or emergency need not exceed ten school days. Graduating seniors are excused
from make up time if the make up time occurs after the students have graduated
or after graduation exercises have been held. If classes have been convened and
then are dismissed, or if classes convene at a time later in the day than
normal, because of inclement weather, that day constitutes a school day in
session equal to the number of hours planned for that day as established in the
local school district calendar for the year.
School boards are encouraged to provide time within the regular school term
for curriculum and staff development which shall be in addition to the time
required in this section. Each school board shall determine the appropriate
amount of time for this activity and how best to use the time based on local
needs for program development, increased parent participation, student contact,
teachers' preparation, or other needs of the schools in the district. School is
in session only when classes are held and as provided in �� 13-26-4 and
13-26-4.1. A school board may operate a special term during the summer months.
Initiated Measure 4
Title: An Act to provide safe access to
medical marijuana for certain qualified persons.
Attorney General Explanation:
This initiative would allow persons,
including minors with parental consent, with a debilitating medical condition,
to be certified to grow (not more than six plants), possess (not more than one
ounce) and use small amounts of marijuana for medical purposes.
�Debilitating medical condition� is defined to include
cancer, glaucoma, HIV, AIDS, or a chronic, debilitating condition that produces
cachexia, wasting syndrome, severe or chronic pain, severe nausea, seizures,
including epileptic seizures, severe or persistent muscle spasms, including
spasms caused by spinal injury, multiple sclerosis, Crohn�s disease or
fibromyalgia or any other medical condition approved by the Department of
Health.
Certification may be accomplished by submitting medical
records to the Department of Health or by submitting a doctor�s recommendation.
A person may not drive while impaired by marijuana and may
not smoke marijuana in any place where tobacco smoking is prohibited.
Growth, possession and use of marijuana will still be illegal
under federal law but certification is a defense to criminal prosecution under
state law.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 4:
Section 1. Terms used in this Act mean:
(1) "Caregiver," any person,
eighteen years of age or older, who has agreed to undertake responsibility for
managing the well-being of a person with respect to the medical use of
marijuana. The term does not include the qualifying patient's physician;
(2) "Debilitating medical
condition,"
(a) Cancer, glaucoma, or positive
status for human immunodeficiency virus, acquired immune deficiency syndrome, or
the treatment of these conditions;
(b) A chronic or debilitating disease or medical condition
or its treatment that produces one or more of the following:
(i) Cachexia or wasting syndrome;
(ii) Severe or chronic pain;
(iii) Severe nausea;
(iv) Seizures, including
epileptic seizures;
(v) Severe or persistent muscle
spasms, including spasms caused by spinal injury, multiple sclerosis, or Crohn's
disease;
(vi) Fibromyalgia; or
(c) Any
other medical condition or treatment for a medical condition adopted by the
department by rules;
(3) "Department," the Department
of Health;
(4) "Marijuana," as defined in �
34-20B-1;
(5) "Medical use," the
acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
transportation of marijuana or paraphernalia relating to the consumption of
marijuana to alleviate a registered qualifying patient's debilitating medical
condition or symptoms associated with the medical condition;
(6) "Physician," a person who is
licensed pursuant to chapter 36-4;
(7) "Qualifying patient," a
person who has been diagnosed by a physician as having a debilitating medical
condition;
(8) "Registry identification
card," a document issued by the department that identifies a person as a
qualifying patient or caregiver;
(9) "Usable marijuana," the dried
leaves and flowers of marijuana and any mixture or preparation of marijuana. The
term does not include the seeds, stalks, and roots of the plant;
(10) "Written certification," a
qualifying patient's medical records or a statement signed by a physician
stating that in the physician's professional opinion, after having completed a
full assessment of the qualifying patient's medical history and current medical
condition made in the course of a bona fide physician-patient relationship, the
qualifying patient has a debilitating medical condition and the potential
benefits of the medical use of marijuana would likely outweigh the health risks
for the qualifying patient.
Section 2. The department shall establish and
maintain a program for the issuance of registry identification cards to persons
who meet the requirements of this Act.
Section 3. Except as provided in section 4 of this
Act, the department shall issue a registry identification card to a qualifying
patient who submits the following, in accordance with department rules:
(1) Written certification;
(2) An application or renewal
fee;
(3) The name, address, and date
of birth of the qualifying patient;
(4) The name, address, and
telephone number of the qualifying patient's physician; and
(5) The name, address, and date
of birth of the qualifying patient's caregiver, if any. A qualifying patient may
only have one caregiver at any one time.
Section 4. The department shall issue a registry
identification card to a minor if the materials required under section 3 of this
Act are submitted and the custodial parent or legal guardian with responsibility
for health care decisions for the minor signs and submits a written statement
that:
(1) The minor's physician has
explained to that minor and to the custodial parent or legal guardian with
responsibility for health care decisions for the minor the potential risks and
benefits of the medical use of marijuana; and
(2) The custodial parent or legal
guardian with responsibility for health care decisions for the minor:
(a) Consents to the medical use
of marijuana by the minor;
(b) Agrees to serve as the
minor's caregiver; and
(c) Agrees to control the
acquisition of marijuana and the dosage and frequency of the medical use of
marijuana by the minor.
Section 5. The department shall issue a registry
identification card to the caregiver who is named in a qualifying patient's
approved application if the caregiver signs a statement agreeing to provide
marijuana only to qualifying patients who have named the applicant as caregiver.
A caregiver may receive reasonable compensation for services provided to assist
with a qualifying patient's medical use of marijuana.
Section 6. The department shall verify the
information contained in an application or renewal submitted for a registry
identification card and shall approve or deny an application or renewal within
fifteen days of receipt of the application or renewal. The department may deny
an application or renewal only if the applicant did not provide the information
required pursuant to this Act, the department determines that the information
was falsified, or the applicant is not qualified to receive a registry
identification card under the provisions of this Act. Any rejection of an
application or renewal is considered a final department action, and may be
appealed pursuant to chapter 1-26.
Section 7. The department shall issue a registry
identification card within five days of approving an application or renewal.
Registry identification cards expire one year after the date of issuance. A
registry identification card must include:
(1) The name, address, and date
of birth of the qualifying patient;
(2) The name, address, and date
of birth of the qualifying patient's caregiver, if any;
(3) The date of issuance and
expiration date of the registry identification card;
(4) A random registry
identification number; and
(5) A photograph, if required by
the department.
Section 8. A person who has been issued a registry
identification card shall notify the department of any change in the qualifying
patient's name, address, physician, or caregiver or any change in status of the
qualifying patient's debilitating medical condition within ten days of the
change. If a change occurs and is not reported to the department, the registry
identification card is void.
Section 9. The department shall maintain a
confidential list of the persons to whom the department has issued registry
identification cards. Any individual name or any other identifying information
on the list is confidential and is not subject to disclosure, except to:
(1) An authorized employee of the
department as necessary to perform official duties of the department; or
(2) An authorized employee of a
state or local law enforcement agency, only as necessary to verify that a person
is a lawful possessor of a registry identification card.
Section 10. The department shall report annually to
the Legislature the number of applications for registry identification cards,
the number of qualifying patients and caregivers approved, the nature of the
debilitating medical conditions of the qualifying patients, the number of
registry identification cards revoked, and the number of physicians providing
written certification for qualifying patients. The department may not provide
any identifying information of qualifying patients, caregivers, or physicians.
Section 11. No qualifying patient or caregiver who
possesses a registry identification card issued pursuant to this Act may be
arrested, prosecuted, or penalized in any manner, or be denied any right or
privilege. This section prohibits a professional licensing board from bringing
disciplinary action for the medical use of marijuana or for assisting in the
medical use of marijuana if the qualifying patient or caregiver possesses
marijuana not in excess of the amounts allowed in section 12 of this Act.
Section 12. A qualifying patient may not possess
more than six marijuana plants and one ounce of usable marijuana. A caregiver
may not possess more than six marijuana plants and one ounce of usable marijuana
for each qualifying patient to whom he or she is connected through the
department's registration process.
Section 13. A qualifying patient or caregiver is
presumed to be engaged in the medical use of marijuana if the qualifying patient
or caregiver:
(1) Is in possession of a
registry identification card; and
(2) Is in possession of an amount
of marijuana that does not exceed the amount permitted under section 12 of this
Act. The presumption may be rebutted by evidence that the possession of
marijuana was not for the purpose of alleviating the symptoms or effects of a
qualifying patient's debilitating medical condition.
Section 14. No physician may be arrested,
prosecuted, or penalized in any manner, or denied any right or privilege, nor
may a professional licensing board bring a disciplinary action against a
physician solely for providing a written certification or for otherwise stating
that, in the practitioner's professional opinion, the potential benefits of the
medical marijuana would likely outweigh the health risks for a patient.
Section 15. An interest in or a right to property
that is possessed, owned, or used in connection with the medical use of
marijuana or any act incidental to the medical use of marijuana may not be
forfeited under any provision of law providing for the forfeiture of property
other than as a sentence imposed after conviction of a criminal offense.
Section 16. No person may be prosecuted under any
provision of law for solely being in the presence or vicinity of the medical use
of marijuana as permitted pursuant to this Act or for assisting a qualifying
patient to administer or use medical marijuana.
Section 17. Possession of or application for a
registry identification card does not alone constitute probable cause to search
the person or property of the person possessing or applying for the registry
identification card or otherwise subject the person or property of the person
possessing or applying for the card to inspection by any governmental agency,
including a law enforcement agency.
Section 18. A registry identification card or its
equivalent issued under the laws of another state, United States territory, or
the District of Columbia to permit the medical use of marijuana by a qualifying
patient or to permit a person to assist with a qualifying patient's medical use
of marijuana has the same force and effect as a registry identification card
issued by the department.
Section 19. No school, employer, or landlord may
refuse to enroll, employ, or lease to, or otherwise penalize a person solely
because of his or her status as a registered qualifying patient or a registered
caregiver.
Section 20. No person, including an employee or
official of the department or other state or local government agency, may
disclose confidential information relating to the medical use of marijuana if
the person knowingly or purposely discloses confidential information in
violation of this Act. A violation of this section is a Class 1 misdemeanor.
Section 21. This Act does not permit:
(1) Any
person to be in actual physical control of any motor vehicle, aircraft, or
motorboat while impaired by marijuana. However, no qualifying patient may be
prosecuted for such an offense merely for the presence of marijuana metabolites
in the patient's hair, blood, urine, saliva, or other bodily fluids;
(2) The smoking of marijuana in
any place where tobacco smoking is prohibited by law or by the rules of the
establishment, or in any public place, except in a health care facility by
permission of an attending physician; or
(3) The undertaking of tasks by a
person impaired by marijuana if doing so would constitute malpractice or
negligent behavior.
Section 22. Nothing in this Act requires:
(1) A government medical
assistance program or private health insurer to reimburse a person for costs
associated with the medical use of marijuana; or
(2) An employer to accommodate
the medical use of marijuana in any workplace.
Section 23. Except as provided in sections 21 and 22
of this Act, it is an affirmative defense to any criminal offense involving
marijuana that the person charged with the offense:
(1) Has a physician who states
that or has medical records that indicate that, in the physician's professional
opinion, after having completed a full assessment of the person's medical
history and current medical condition made in the course of a bona fide
physician-patient relationship, the potential benefits of medical marijuana
would likely outweigh the health risks for the person;
(2) Provides marijuana to a
person described in subdivision (1) if the person does not provide marijuana to
anyone for uses that are not medical;
(3) Is engaged in the
acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
transportation of marijuana or paraphernalia relating to the consumption of
marijuana to alleviate the symptoms or effects of the medical condition of the
person identified in subdivision (1); or
(4)
Possesses marijuana only in an amount that is reasonably necessary to ensure the
uninterrupted availability of marijuana for the purpose of alleviating the
symptoms or effects of the medical condition of the person identified in
subdivision (l).
A person may assert the medical
purpose for using marijuana in a motion to dismiss, and the charges shall be
dismissed following an evidentiary hearing in which the defendant shows the
elements listed in this section.
Any interest in or right to
property that was possessed, owned, or used in connection with a person's use of
marijuana for medical purposes is not forfeited if the person or the person's
caregiver demonstrates the person's medical purpose for using marijuana pursuant
to this section.
Section 24. No person may knowingly or purposely
fabricate or misrepresent a registry identification card to a law enforcement
officer. A violation of this section is a Class 1 misdemeanor.
Section 25. The department may promulgate rules,
pursuant to chapter 1-26, to define any additional medical conditions, or
treatments for medical conditions, as debilitating medical conditions and to
provide for requirements and procedures for the registry identification card.
The department shall promulgate rules, pursuant to chapter 1-26, to address the
manner in which the department will consider applications for and renewals of
registry identification cards for qualifying patients and caregivers. The rules
shall establish application and renewal fees that generate revenue sufficient to
offset all expenses of implementing and administering this Act. The department
may vary the application and renewal fees along a sliding scale that takes into
consideration a qualifying patient's income, so that the fees do not place an
undue hardship upon the qualifying patient.
Section 26. No person who has complied with this Act
may be prosecuted under any section of law for acts committed in accordance with
this Act.
Section 27. The code counsel shall place this Act in
Title 34, and the provisions of Title 34 apply to this Act.
Initiated Measure 5
Title: An Initiative to place certain
restrictions on the use of state owned or leased aircraft.
Attorney General Explanation:
State law currently allows state employees to
use vehicles owned or leased by the State only for state business. There is a
limited exception for state employees with a supervisor�s approval. The
Governor and certain law enforcement personnel are exempt.
The proposed law requires aircraft owned or
leased by the State to be used only for state business, with no exceptions. A
person violating this provision would now be subject to civil and criminal
penalties.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 5:
Section 1. That � 5-25-1.1be amended to read as follows:
5-25-1.1. Vehicles owned or leased by the state may be used only in the conduct
of state business. No state officer or employee, except the Governor, law
enforcement officers of the South Dakota Highway Patrol, law enforcement
officers of the Division of Criminal Investigation, and conservation officers
may use, or permit the use of, any state-owned motor vehicle other than in the
conduct of state business. Nothing in this section prohibits any use of any
state vehicle, if, in order to provide for the most efficient use of state
equipment or personnel, supervisory personnel issue written instructions to any
state employee to use a state vehicle for transportation:
(1) Between the employee�s permanent residence and work station; or
(2) Between the employee�s temporary residence or eating place and
work station if assigned to a locality other than the employee�s permanent
residence.
For purposes of this section, any aircraft owned or leased by the state may be
used only in the conduct of state business. None of the exceptions listed above
are applicable regarding the use of any aircraft owned or leased by the state or
any of its agencies.
A
violation of this section is a Class 2 misdemeanor. The violator is
also subject to a civil action by the State of South Dakota in circuit court for
the recovery of a civil penalty of not more than one
thousand ($1,000) dollars plus ten times the cost incurred by the state for
misuse of the vehicle. An action for the recovery of a civil penalty or
compensatory damages shall, upon demand, be tried by a jury.
Initiated Measure 7
Title: An Initiative to repeal video lottery.
Attorney General Explanation:
The State operates video lottery as
authorized by State law. During the last year, the State received approximately
one hundred twelve million dollars ($112,000,000.00) from video lottery which is
11% of the state general fund budget.
The proposed law would repeal video lottery and eliminate
this source of revenue.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 7:
Section 2. The effective date of this act is January 1,
2007.
Section 3. That subdivisions (1), (3), (6), (11), (14A),
(15), (16), (17), and (18) of SDCL 42-7A-1 be repealed.
Section 4. That subdivision (14) of SDCL 42-7A-1 be amended
to read as follows:
(14) �Ticket,� any tangible evidence issued or authorized by the South
Dakota Lottery to prove participation in an instant, or on-line,
or video lottery game;
Section 5. That subdivision (4) of SDCL 42-7A-4 be amended
to read as follows:
(4) Contract with and license persons for the sale of lottery tickets
and the offering of video lottery games to the
public, as provided by this chapter and rules adopted pursuant thereto;
Section 6. That subdivision (6) of SDCL 42-7A-4 be amended
to read as follows:
(6) Require lottery retailers and persons licensed pursuant to this chapter
to furnish proof of financial stability or furnish surety in an amount based
upon the expected volume of sales of lottery tickets or net
machine income;
Section 7. That subdivision (11A) of SDCL 42-7A-4 be
repealed.
Section 8. That SDCL 42-7A-13 be amended to read as
follows:
42-7A-13. To be selected as a lottery retailer or
video lottery machine operator, a natural person acting as a sole
proprietor shall:
(1) Be at least eighteen years of age;
(2) Be of good character and reputation in the community;
(3) Have sufficient financial resources to support the activities required to
sell lottery tickets or place and service video lottery
machines; and
(4) Be current in payment of all taxes, interest and penalties owed to the
state of South Dakota, excluding items under formal dispute or appeal pursuant
to applicable statutes.
A lottery retailer or video lottery machine operator
may not be a lottery vendor or an employee or agent of any lottery vendor doing
business with the South Dakota Lottery.
Section 9. That SDCL 42-7A-15 be amended to read as
follows:
42-7A-15. Partnership is lottery retailer or video
machine operator For a partnership to be selected as a lottery
retailer or video lottery machine operator, the
partnership shall meet the requirements of subdivisions (3) and (4) of SDCL
42-7A-13, and each partner thereof shall meet the requirements of subdivisions
(1) and (2) of SDCL 42-7A-13 and subdivisions (1) to (5), inclusive, of SDCL
42-7A-14.
Section 10. That SDCL 42-7A-16 be amended to read as
follows:
42-7A-16. Association or corporation as lottery retailer
or video lottery machine operator. For an
association or corporation to be selected as a lottery retailer
or video lottery machine operator, the association
or corporation shall meet the requirements of subdivisions (3) and (4) of SDCL
42-7A-13, and each officer and director and each stockholder who owns ten
percent or more of the stock of such association or corporation shall meet the
requirements of subdivisions (1) and (2) of SDCL 42-7A-13 and subdivisions (1)
to (5), inclusive, of SDCL 42-7A-14.
Section
11. That subdivision (7) of SDCL 42-7A-21 be amended to read as follows:
(7) Additional qualifications for the selection of lottery retailers,
video lottery machine manufacturers, distributors, or
operators and the amount of application fees to be paid by each;
Section 12. That subdivisions (10), (11), (12), (13), and
(15) of SDCL 42-7A-21 be repealed.
Section 13. That SDCL 42-7A-24 be amended to read as
follows:
42-7A-24. Net proceeds from the sale of instant lottery tickets shall be
transferred to the state general fund on an annual basis after July first each
year. The commission shall maximize the net proceeds to the state from the sale
of instant and on-line lottery tickets. In no event may yearly lottery expenses
for the sale of lottery tickets, excluding expenditures from retained earnings,
exceed the amount of combined net proceeds transferred to the state general
fund, the state corrections facility construction fund, and the state capital
construction fund. Net machine income from video lottery
games shall be directly deposited in the state property tax reduction fund upon
receipt. Net proceeds are funds in the lottery operating fund which are
not needed for the payment of prizes, lottery expenses, and total retained
earnings up to one and one-half million dollars cash deemed necessary by the
executive director and commission for replacement, maintenance, and upgrade of
business systems, product development, legal, and operating contingencies
of the lottery.
Beginning in fiscal year 1997 and each year there after, the commission
shall transfer the one million four hundred thousand dollars from the net
proceeds from the sale of on-line video lottery
tickets collected pursuant to � 42-7A-24 to the general fund. The commission
shall then transfer an amount equal to the remaining net proceeds from the sale
of on-line lottery tickets collected pursuant to � 42-7A-24 to the state capital
construction fund created in � 5-27-1.
Section 14. That SDCL 42-7A-36 be amended to read as
follows:
42-7A-36. No person may have in his possession,
custody, or under his the person�s control or
permit to be kept in any place under his the
person�s possession or control, any device that awards credits and contains
a circuit, meter or switch capable of removing and recording the removal of
credits when the award of credits is dependent upon chance. A violation of this
section is a Class 6 felony. All devices described in this section are hereby
declared to be public nuisances. The provisions of this
section do not apply to devices or electronic video game machines licensed
pursuant to this chapter.
Section 15. That SDCL 42-7A-37 to SDCL 42-7A-48, inclusive,
be repealed.
Section 16. That the following paragraph of SDCL 42-7A-50,
be repealed:
However, this section may not be construed to make
confidential the name of any video lottery operator including, if the video
lottery operator is a partnership, the name of any partner and, if the video
lottery operator is an association or corporation, the name of any director, any
officer, and any stockholder who owns five percent or more of the stock in the
association or a parent or subsidiary corporation.
Section 17. That SDCL 42-7A-56 be amended to read as
follows:
The Legislature hereby finds, and declares to be the public policy of this
state that:
(1) The success of the South Dakota Lottery is
dependent upon public confidence and trust that it is conducted honestly and
free from criminal and corruptive elements;
(2) Public confidence and trust can only be maintained
by strict regulation of all persons, locations, practices, associations, and
activities related to the sale of lottery products and the
operation, manufacturing, and distribution of video lottery games and equipment;
and
(3) No applicant for a license or other affirmative
commission action has any right to a license or to the granting of the approval
sought. Any license issued or other commission approval granted pursuant to the
provisions of this chapter is a revocable privilege, and no holder acquires any
vested interest or property right therein or thereunder.
Section 18. That SDCL 10-58-11, SDCL 35-4-103, SDCL
42-7A-57 and SDCL 42-7A-58 be repealed.
Section 19. That SDCL 42-7A-61 to SDCL 42-7A-65, inclusive,
be repealed.
Initiated
Measure 8
Title: An Act to repeal
the gross receipts tax on wireless telecommunication services.
Attorney General Explanation:
State laws impose a four percent tax on the
gross receipts of companies providing wireless telecommunications (cell phone)
services instead of a property tax.
Last year the State received approximately eight and
one-half million dollars ($8,500,000.00) from the cell phone tax. Forty percent
(40%) of these revenues are distributed to counties based on population; the
balance goes to the State.
The proposed law would repeal this tax, and eliminate this
source of revenue.
A vote �Yes� will adopt the proposed law.
A vote �No� will reject the proposed law.
Full Text of Initiated Measure 8:
An Act to repeal the four percent
(4%) gross receipts tax imposed by South Dakota Codified Law Chapter 10-33A upon
wireless telecommunication services.
Section
1. That chapter 10-33A be repealed.
2006 Referred Law
The following law was
adopted by the Legislature and referred to the voters by petition. This law will
not become effective unless approved by majority vote.
Referred Law 6
Title: Referral of HB 1215, entitled �An Act
to establish certain legislative findings, to reinstate the prohibition against
certain acts causing the termination of an unborn human life, to prescribe a
penalty therefore, and to provide for the implementation of such provisions
under certain circumstances.�
Attorney General Explanation:
Current South Dakota law generally allows a
pregnant woman to obtain an abortion during the first 24 weeks of pregnancy.
Beyond 24 weeks, abortions may be performed only if necessary to preserve the
life or health of the pregnant woman.
House Bill 1215 would prohibit any
person, at any time, from providing any medicine or other substance to a
pregnant woman for the specific purpose of terminating her pregnancy. However,
a person may provide a contraception substance to a woman without penalty prior
to the time her pregnancy could be determined by conventional medical testing.
HB 1215 would also prohibit any
person, at any time, from using any instrument or procedure on a pregnant woman
for the specific purpose of terminating her pregnancy, unless the person is a
licensed physician performing a medical procedure to prevent the death of the
pregnant woman.
Any person other than the pregnant
woman who violates the provisions of HB 1215 would commit a felony.
If approved, HB 1215 will likely
be challenged in court and may be declared to be in violation of the US
Constitution. If so, the State may be required to pay attorneys fees and costs.
A vote �Yes� will allow the Act to become
effective.
A vote �No� will reject the Act.
Full Text of Referred Law 6:
Section 1. The Legislature accepts and concurs with
the conclusion of the South Dakota Task Force to Study Abortion, based upon
written materials, scientific studies, and testimony of witnesses presented to
the task force, that life begins at the time of conception, a conclusion
confirmed by scientific advances since the 1973 decision of Roe v. Wade,
including the fact that each human being is totally unique immediately at
fertilization. Moreover, the Legislature finds, based upon the conclusions of
the South Dakota Task Force to Study Abortion, and in recognition of the
technological advances and medical experience and body of knowledge about
abortions produced and made available since the 1973 decision of Roe v. Wade,
that to fully protect the rights, interests, and health of the pregnant mother,
the rights, interest, and life of her unborn child, and the mother's fundamental
natural intrinsic right to a relationship with her child, abortions in South
Dakota should be prohibited. Moreover, the Legislature finds that the guarantee
of due process of law under the Constitution of South Dakota applies equally to
born and unborn human beings, and that under the Constitution of South Dakota, a
pregnant mother and her unborn child, each possess a natural and inalienable
right to life.
Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION
to read as follows:
No person may knowingly administer to, prescribe for,
or procure for, or sell to any pregnant woman any medicine, drug, or other
substance with the specific intent of causing or abetting the termination of the
life of an unborn human being. No person may knowingly use or employ any
instrument or procedure upon a pregnant woman with the specific intent of
causing or abetting the termination of the life of an unborn human being.
Any violation of this section is a Class 5 felony.
Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION
to read as follows:
Nothing in section 2 of this Act may be construed to
prohibit the sale, use, prescription, or administration of a contraceptive
measure, drug or chemical, if it is administered prior to the time when a
pregnancy could be determined through conventional medical testing and if the
contraceptive measure is sold, used, prescribed, or administered in accordance
with manufacturer instructions.
Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION
to read as follows:
No licensed physician who performs a medical procedure
designed or intended to prevent the death of a pregnant mother is guilty of
violating section 2 of this Act. However, the physician shall make reasonable
medical efforts under the circumstances to preserve both the life of the mother
and the life of her unborn child in a manner consistent with conventional
medical practice.
Medical treatment provided to the mother by a licensed
physician which results in the accidental or unintentional injury or death to
the unborn child is not a violation of this statute.
Nothing in this Act may be construed to subject the
pregnant mother upon whom any abortion is performed or attempted to any criminal
conviction and penalty.
Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION
to read as follows:
Terms used in this Act mean:
(1) "Pregnant," the human female
reproductive condition, of having a living unborn human being within her body
throughout the entire embryonic and fetal ages of the unborn child from
fertilization to full gestation and child birth;
(2) "Unborn human being," an individual
living member of the species, homo sapiens, throughout the entire embryonic and
fetal ages of the unborn child from fertilization to full gestation and
childbirth;
(3) "Fertilization," that point in time
when a male human sperm penetrates the zona pellucida of a female human ovum.
Section 6. That � 34-23A-2 be repealed.
Section 7. That � 34-23A-3 be repealed.
Section 8. That � 34-23A-4 be repealed.
Section 9. That � 34-23A-5 be repealed.
Section 10. If any court of law enjoins, suspends, or delays the
implementation of a provision of this Act, the provisions of sections 6 to 9,
inclusive, of this Act are similarly enjoined, suspended, or delayed during such
injunction, suspension, or delayed implementation.
Section 11. If any court of law finds any provision of this Act to be
unconstitutional, the other provisions of this Act are severable. If any court
of law finds the provisions of this Act to be entirely or substantially
unconstitutional, the provisions of � � 34-23A-2, 34-23A-3, 34-23A-4, and
34-23A-5, as of June 30, 2006, are immediately reeffective.
Section 12. This Act shall be known, and may be cited, as the Women's
Health and Human Life Protection Act.