2006 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:

Section1.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 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 June30, 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.