FOR IMMEDIATE RELEASE : Thursday, January 5, 2012
CONTACT: Sara Rabern, (605) 773-3215
Attorney General Marty Jackley Announces 2012 Legislative Proposals
PIERRE, S.D. - Attorney General Marty J. Jackley announces that his office has submitted the following legislative proposals to the South Dakota Legislature for its consideration during the 2012 Legislative Session:
1) Protecting Children - Law Enforcement Notification – An Act to criminalize the failure to report the death or disappearance of a child modeled after the Caylee Anthony model legislation. Specifically, a child caretaker who knowingly fails to notify law enforcement within 48 hours of learning that a child less than 13 years of age is missing would be guilty of a class 1 misdemeanor. Any caretaker who knowingly failed to notify law enforcement within 6 hours of learning of the death of a minor child would be guilty of a class 5 felony.
2) Protecting Children – Anti-Bullying – An Act to encourage school districts to adopt a bullying policy and establish model bullying policy. The proposed Act provides a strong preference for maintaining local control setting forth that nothing would supplant or preempt an existing school district’s bullying policy. If a school district does not have a bullying policy, it would be required to follow the model bullying policy contained within the Act until such time as the school district adopted its own bullying policy. Under the model policy, a district would be required to investigate all complaints of bullying, and any student engaged in an act of bullying would be subject to discipline pursuant to the district’s student discipline procedure.
The Act would define bullying as the causing of physical hurt or psychological distress on a student that may involve threat, intimidation, stalking, physical violence, theft, harassment, or destruction of property. Harassment is defined as:
a) Any threatening use of date or computer software or conduct directed against a student that places a student or school employee in reasonable fear of harm to his or her person or damage to his or her property;
b) Substantially interferes with a student’s educational performance; or
c) Substantially disrupts the orderly operation of a school.
3) Victim Rights – An Act to clarify a “victim’s” right to provide a victim impact statement to the court at sentencing. In addition to the existing statutory authority for narrowly defined victims to present oral testimony at the time of sentencing, the statute would clarify that a more broadly defined category of victims to include anyone adversely impacted emotionally, physically, or monetarily by the defendant’s crime, would have the ability to present a written impact statement to the court.
4) Pseudoephedrine Recordkeeping – An Act to clarify and allow retailers in South Dakota to submit pseudoephedrine purchase records either electronically or in writing. The purpose of the legislation is to provide options to more efficiently satisfy existing recordkeeping requirements for pseudoephedrine purchases.
5) Expansion of Local Control Over Certain Right-of-Way Fencing – An Act to permit a board of county commissioners, after notice and hearing, to approve temporary fencing within the right-of-way of county highways if it determines that the temporary fencing is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic. State law does not currently authorize a county to allow landowners to fence off a portion of a right-of-way even for the practical and reasonable purpose of avoiding water, snow or other natural concerns. The proposed legislation is in response to Attorney General Opinion of June 21, 2011, urging legislation to provide counties the authority that exists under federal law for temporary fencing during periods of high water levels or otherwise reduces the width of a right-of-way when certain conditions exist.
6) Post-Conviction Relief Limitations – To amend South Dakota’s post-conviction relief remedies modeled after and consistent with federal post-conviction relief statutes. The purpose of the amendment is to afford defendants reasonable periods of time and opportunity to bring an action after conviction, sentence and direct appeal without unreasonable delay and that are not repetitive. The major amendments include the following:
a) Creation of a one-year statute of limitations for applications for relief collaterally attacking a defendant’s conviction, sentence and direct appeal;
b) Modifying the mandatory court appointed counsel provisions to provide discretion to the court for instances when a Judge finds that such appointment is necessary to ensure a full, fair and impartial proceeding;
c) Provisions to prevent repetitive and subsequent collateral post-conviction proceedings.
The proposed amendments would not affect or otherwise limit a defendant’s right to a jury trial or any direct appeal of any conviction or sentence. The amendments pertain only to collateral post-conviction remedies after a defendant exercises his or her direct appeal rights. The removal of unreasonable delays and repetitive court proceedings is expected to result in considerable cost savings to county and state taxpayers. The amendments are further modeled after federal limitation of post-conviction remedies.
The proposed amendments are in part a product of the Attorney General’s review of several collateral post-conviction and appeal proceedings including the Donald Moeller case which has a procedural history that has resulted in more than 20 years of court proceedings and the Charles Rhines case with a procedural history approaching two decades.
It is the Attorney General’s position, that it is imperative that the legal system provides protection to ensure that both a conviction and a particular sentence fit the crime. In most instances, the legal process can affectively afford important constitutional and statutory protection without requiring a victim or victim’s family to await decades of repetitive legal proceedings.
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