State Seal

REGISTER

South Dakota Legislative Research Council

Volume 24 Monday, 8:00 a.m., June 15, 1998

A COPY OF EACH REGISTER IS FILED IN THE OFFICE OF THE SECRETARY OF STATE.

NOTICES OF PROPOSED RULES (The date in parentheses is the date the rules were filed in the Legislative Research Council):

Department of Game, Fish and Parks (June 11, 1998) intends to adopt rules to permit uncased firearms and bows at certain times of the year at Angostura State Recreation Area; permit mourning dove hunting at Angostura State Recreation Area; open antelope hunting seasons in areas in Perkins, Meade, Walworth, and Potter Counties; change antelope hunting boundaries in Lyman County hunting unit; expand the area in Sully County where two tag licenses are valid; combine two units in Clark County into one unit; eliminate the availability of licenses at the Farm Island Unit; permit one goose daily and provide an additional day in the youth waterfowl hunting season; early September Canada Goose hunting season lengthened and daily limit increased to three geese with a possession limit of six; make changes to the number of waterfowl licenses which may be acquired by a nonresident; change the numbering system of the refuges along the Missouri River to accommodate new refuges; make hunting area changes and restrictions to certain waterfowl refuges on the Missouri River; permit the use of break-away snares in trapping. The general authority for these rules, as cited by the agency, is SDCL 41-2-18, 41-6-18.2, 41-6-21, 41-8-20, 41-11-5, 41-17-1.1.

A public hearing will be held on July 6, 1998, at 2:00 p.m., at the Budget Host Inn, 640 North Euclid, Pierre, South Dakota. Written comments may be sent to the South Dakota Department of Game, Fish and Parks, Foss Building, 523 East Capitol Avenue, Pierre, South Dakota 57501, and must be received prior to July 6, 1998, to be considered. Comments may also be sent by E-mail to alb@gfp.state.sd.us. E-mail comments must include the commenter's name and address. Copies of the rules may be obtained from the same address. Persons who have special needs for which the agency can make arrangements are asked to call the Department of Game, Fish and Parks at (605) 773-3387 before the hearing.

 

FILINGS IN THE SECRETARY OF STATE'S OFFICE:

Administrative Rules:

DEPARTMENT OF AGRICULTURE: 12:09:04:01, 12:09:04:04, 12:09:04:06, 12:09:04:07, 12:09:04:08

History--Notice: 24 SDR 135, March 30, 1998

Hearing: April 23, 1998

Filed: June 8, 1998

Effective: June 28, 1998

 

DEPARTMENT OF COMMERCE AND REGULATION: DIVISION OF BANKING:

20:07:10:02

History--Notice: 24 SDR 139, April 6, 1998

Hearing: April 28, 1998

Filed: June 10, 1998

Effective: June 30, 1998

DEPARTMENT OF COMMERCE AND REGULATION: DIVISION OF BANKING: 20:07:19:02

History--Notice: 24 SDR 139, April 6, 1998

Hearing: April 28, 1998 Filed: June 10, 1998

Effective: June 30, 1998

DEPARTMENT OF COMMERCE AND REGULATION: DIVISION OF BANKING: 20:07:20:01 and 20:07:20:02

History--Notice: 24 SDR 139, April 6, 1998

Hearing: April 28, 1998

Filed: June 10, 1998

Effective: June 30, 1998

DEPARTMENT OF REVENUE: 61:24:01:01, :02, :03; 61:24:02:01, :02, :03, :04, :05; 61:24:03:01, :02, :03: :04, :05, :06, :07, :08, :09, :10; 61:24:04:03, :05; 61:24:05:01, :02; 64:16:02:01, 64:21:01:01, 64:28:03:04, 64:28:07:03, 64:28:09:03, 64:28:10:03, 64:28:12:01, :05, :11; 64:28:13:03, :03.01, :06; 64:29:02:10; 64:29:02:15; :16, :17, :18

History--Notice: 24 SDR 153, May 4, 1998

Hearing: May 19, 1998

Filed: June 11, 1998

Effective: July 1, 1998

DEPARTMENT OF REVENUE: 64:02:01:01, :03, :05; :13, :15, :16, :17, :19, :20, :21, :22; 64:02:03:04, :05, :08, :09, :10, :11, :12, :13, :14, :15, :16, :18; 64:03, 01:01, :02, :02.01, :02.02, :02.03, :03, :04, :05, :06, :07, :08, :09, :10, :11, :12, :13, :14,, :15, :16, :18, :19, :20, :21, :22, :23, :24, :26, :27, :29, :30; 64:03:02:02, :03, :08, :09; 64:03:03:01, :02, :04, :06, :07, :08; 64:03:04:01, :02, :03, :04, :06, :10; 64:04:01:01, :05, :06, :13, :15, :16, :20.

History--Notice: 24 SDR 153, May 4, 1998

Hearing: May 19, 1998

Filed: June 11, 1998

Effective: July 1, 1998

DEPARTMENT OF REVENUE: 64:06:01:08.02, 64:06:02:81.01, 64:06:02:88

History--Notice: 24 SDR 153, May 4, 1998

Hearing: May 19, 1998

Filed: June 11, 1998

Effective: July 1, 1998

CORRECTION: The notice and hearing for the Game, Fish and Parks rules on page 176 is incorrect. It should read "Notice: 24 SDR 147, April 16, 1998. Hearing: May 7, 1998."

Note: A copy of the rules may be obtained directly from the above agencies. Write to the agency at the address given under "Notices of Proposed Rules." There is no charge for proposed rules. The following agencies have permission from the Interim Rules Review Committee to charge for adopted rules: the Division of Insurance, the Cosmetology Commission, the State Board of Examiners in Optometry, the State Plumbing Commission, the Board of Nursing, the Department of Social Services, the State Electrical Commission, the South Dakota Board of Pharmacy, the Real Estate Commission, the Gaming Commission, the Department of Commerce and Regulation for commercial driver licensing, the Department of Labor for Article 47:03, and the Department of Revenue.

Supreme Court Rules:

The following five Supreme Court rules dated June 8, 1998, were filed with the Secretary of State on the same date, and will be effective July 1, 1998.

Supreme Court Rule 98-27, "In the Matter of the Amendment of SDCL 15-6-51(b)," amends that section to read as follows:

15-6-51(b) Settlement of instructions. A written request offered to the court by a party is a Arequested@ instruction. Instructions prepared by the court are proposed@ instructions. The court must settle all requested and proposed instructions, on the record, out of the hearing of the jury. During the settlement hearing, the parties must make their objections to the proposed instructions and other parties= requested instructions pursuant to SDCL 15-6-51(a). The court must rule on the objections and requested instructions before the close of the hearing. All refused instructions shall be filed with the clerk of courts. After the close of the hearing, the instructions are Asettled.@ The court must reduce all settled instructions to writing and read them to the jury. The jury and the parties must receive at least one copy of the instructions.

Supreme Court Rule 98-28, "In the Matter of the Amendment of SDCL 15-6-51(c)," amends that section to read as follows:

15-6-51(c). The court must settle, in writing, pursuant to SDCL 15-6-51(b), a response to a jury question sent out by the jury during deliberations.

Supreme Court Rule 98-29, "In the Matter of the Amendment of SDCL 15-39-48," amends that section to read as follows:

15-39-48. Plaintiff=s statement of claim to clerk--Entry in docket--Signature--Contents--Beginning of action. The plaintiff initiating the action or the plaintiff=s attorney shall complete the information on the small claims form available in the clerk of courts office, and provide a written and signed statement of the cause of action to the clerk who shall docket the action. The statement shall contain the facts upon which the claim is based and be accompanied by supporting documents. A cause of action is defined as only those claims arising out of the same transaction or incident. However, for purposes of a cause of action to recover sums arising from the writing of an insufficient funds check, the action may include a claim for recovery of all insufficient funds checks written to the plaintiff on the same account. The docketing by the clerk shall be deemed the beginning of the action.

Supreme Court Rule 98-30, "In the Matter of the Amendment of SDCL 16-19-44, " amends that section to read as follows:

16-19-44. Individual complaint filed with board or Supreme Court -- Reference for investigation and report.

(A) An individual may initiate an investigation of an attorney's conduct by filing a written complaint with the board in such form as the board may prescribe. The board shall proceed on such complaint in accordance with '' 16-19-50 to 16-19-64, inclusive.

(B) In the alternative, an individual may initiate an investigation of an attorney's conduct by filing with the Clerk of the Supreme Court a written complaint. A complaint of attorney misconduct made directly to the Supreme Court shall comply with the following requirements:

(1) The complaint shall be signed and sworn to by the complainant.

(2) The complaint shall fully state all the facts relied upon by the complainant and shall identify all sources of the factual information. Conclusions, opinions, and suppositions of the complainant shall not be considered.

(3) If the alleged misconduct arose in a criminal case, the complaint shall state the county, court, and file number of the case file, whether there was a conviction, and the status of all appellate review, including pending habeas corpus or other post- conviction relief. Copies of any final decision of appellate or habeas corpus review, or post-conviction proceedings, or if pending, of the petition, shall be attached.

(4) The complaint shall state whether complainant has previously filed a complaint with the Disciplinary Board alleging similar misconduct by the attorney. A copy of any Disciplinary Board=s disposition letter shall be attached.

(C) If the complaint fails to comply with any of the requirements of subsection (B), the Clerk of the Supreme Court shall forward the complaint to the Secretary-Treasurer of the State Bar and the complaint shall be treated as if it had been initiated with the Disciplinary Board pursuant to ' 16-19-44(A).

(D) In the event that all requirements of this rule have been met, the Supreme Court shall proceed as follows:

(1) If the court shall determine the alleged facts raise an issue of non- compliance with the Rules of Professional Conduct, the Supreme Court shall refer the matter to either the Disciplinary Board or the Attorney General for an investigation and report pursuant to '' 16-19-45 to 16-19- 64, inclusive.

(2) Complaints that are frivolous, unfounded in fact, or fail to raise an issue of non-compliance with applicable Rules of Professional Conduct shall be dismissed.

(3) Allegations of ineffective assistance of counsel or other lawyer conduct which has been raised on appeal or habeas is deemed to be res judicata to the extent addressed by the reviewing court. The complaint process is neither a substitute for nor a precursor to a habeas corpus or post-conviction petition and complaints alleging misconduct that would appropriately be alleged in a habeas corpus or post- conviction petition shall be deemed premature and dismissed.

(4) If the court determines the Disciplinary Board has previously investigated the complaint, the court may, in its discretion, order the board to file a report with the court reporting the nature and results of the board=s investigation. Upon receipt of the report, the court may determine whether the complaint presents new or additional facts which warrant further investigation. If the court determines it is warranted, it may order further investigation, or, if not warranted, may dismiss the complaint.

Supreme Court Rule 98-31, "In the Matter of the Adoption of a New Rule," adopts a new rule that reads as follows:

The act of incorporating in a judgment the original promissory note or other instrument of debt merges it into that judgment.

 

 

 

REMINDER OF HEARINGS SCHEDULED:

 

6-18-98

Agriculture: Weed and Pest Control Commission

Declared pests; 24 SDR 163.

6-23-98

Commerce and Regulation: South Dakota Commission on Gaming

Racing, Deadwood gambling; 24 SDR 167.

 

6-24-98

Secretary of State: Board of Elections

Registration, confirmation mailing notice, verification notice, elderly voters, special districts, ballot stamp, ballot instructions, petition language, envelopes, poll books; 24 SDR 171.

6-24-98

Commerce and Regulation: Division of Insurance

Health insurance portability and guaranteed issue requirements; 24 SDR 175.

6-24-98

Commerce and Regulation: Division of Insurance

Reciprocity continuing education courses for insurance agents, standardize course offerings; 24 SDR 175.

6-24-98

Commerce and Regulation: Division of Insurance

Replace outdated manuals incorporated by reference in existing rules; 24 SDR 175.

6-24-98

Social Services

Medicaid eligibility; 24 SDR 171.

6-25-98

Transportation Commission

Speed limit in Kinsbury County; 24 SDR 172.

6-26-98

Lottery Commission

Wild Card Game; 24 SDR 176.

7-6-98

Game, Fish & Parks

Uses of parks, upland game, big game, waterfowl hunting, game refuges, trapping; 24 SDR 179.

7-13-98

7-14-98

7-15-98

Revenue

Motor vehicle excise tax exemptions; 24 SDR 167.

7-14-98

Agriculture: Animal Industry Board

Tuberculosis and brucellosis recertification, Mexican origin cattle; 24 SDR 171.

7-22-98

Attorney General: Law Enforcement Officers Standards and Training Commission

Examination, student conduct, fees, curriculum, revocation or suspension of certification; 24 SDR 154.

RULES REVIEW COMMITTEE MEETING:

The next meeting of the Interim Rules Review Committee will be held June 22, 1998, in Rooms LCR 1 and 2, Third Floor, State Capitol, Pierre, starting at 9:00 a.m. Agencies whose rules have had a public hearing are asked to have a representative present at the meeting to give background information on their rules.

Each agency is requested to provide the LRC with nine copies of the most recent draft of its rules two days before the meeting.

The South Dakota Register, ISSN 0191-1104, is published by the South Dakota Legislative Research Council pursuant to SDCL 1-26A-1. Subscriptions to Volume 24 are $20. Make checks payable to "State of South Dakota" and mail to the Legislative Research Council, State Capitol, 500 East Capitol Avenue, Pierre, South Dakota 57501-5070. Information from the Register is available free of charge on the Internet at http://www.state.sd.us/state/legis/lrc.htm.