Utah Constitutional Revision Commission

that the public has an interest in those bonds.

    At page 19 of the mailing packet, Mr. Rees distinguished the Utah Association of Counties suggested language from the commission's draft of Article XI, Section 1. The fundamental question of whether the power of counties should flow from the Legislature or from the constitution was discussed at length. Chair McKeachnie said that county powers have historically come from the Legislature, and in the Utah Association of Counties proposal the counties would receive constitutional authority. Mr. Gardner, Utah Association of Counties, said that Article XI, Section 1 is silent on county powers. Practically speaking, he said, it would not make a significant difference for counties to operate under constitutional authority in a manner similar to how municipal governments currently rely on constitutional authority.

    Justice Durham explained that the difference in the legal approach to cities and counties has an historical framework. Cities are suigeneris; that is, cities have the power to create or establish themselves, they are unique in this way, she said. This is not to say cities are sovereign. But the notion that cities were self-created by the people who resided in them is accurate. Conversely, counties have always been subsequently created by and through the legislative process. Historically, she said, this explains the difference between cities and counties. But whether or not this framework continues to comport with our sense of the fundamental purposes of these subdivisions of government is a very interesting question, she said.

     MOTION: Mr. Worthen moved that the second sentence of Article XI, Section 1 be amended to delete the word "those" and that the second sentence of Article XI, Section 7 (2) be amended to delete the word "those" after "may also exercise" and after the words "and perform". The motion passed unanimously.

    Chair McKeachnie asked the commission to consider whether to recommend that the historical distinction between cities and counties be preserved or whether to recommend that counties should be granted constitutional powers like cities. It was noted that the underpinnings of Article XI, Section 10 depend on whether counties are defined as administrative arms of the state or independent entities. As drafted, Article XI, Section 10 only makes sense if counties are administrative arms of the state.

    Mr. Gardner questioned why Article XI, Section 10 requires that the Legislature obtain consent from cities and towns before granting the right to construct and operate roads, telephone, electric plants, etc. but does not require consent from the county officials. What is the difference, he asked. Why can the legislature usurp the powers of elected county officials and not elected city officials? There is no good justification for the legislature to usurp the powers of elected county officials, he said. If the legislature believes it is good public policy to over ride county officials then it is probably good public policy within a municipality as well. If the Legislature has a collective knowledge and wisdom to make judgements for the county, then it certainly has

the wisdom and knowledge to make decisions for municipalities also.

    Mr. Worthen explained that in a narrow context Mr. Gardner is right. If one lives in an unincorporated area of Salt Lake County, it may seem strange for the county officials not have a say concerning some state projects. But if you live in West Valley City you have a say. In other contexts, however, it makes perfect sense because unincorporated areas of a county differ dramatically depending on the county. Chair McKeachnie told the commission it is discussing the same issues that were discussed twelve years ago -- should residents of a county have the same rights as residents of a city.

    Speaker Brown questioned whether the Utah Association of Counties intentionally placed a comma in Article XI, Section 10 after "street" and before "railroad". The comma substantially changes the meaning, he said. Mr. Gardner acknowledged that the comma in the county draft intentionally changes the meaning.

    Concerning Article XI, Section 11, Mr. Gardner mentioned that the predicament of the county is that, on the one hand, the state limits methods to generate revenue and, on the other hand, provides mandates for the county. Some state constitutions address these issues, he said. If the state provides mandates, it should also provide funding for the programs it is mandating.

    Chair McKeachnie suggested that the commission vote on whether to adopt the counties Article XI, Section 11 first, and then, depending on the outcome of that vote, decide whether the provision should be presented to the Legislature with the local government article amendments or on its own.

     MOTION: Mr. Linton moved that the commission examine other states' constitutional provisions concerning state mandates on counties. The motion passed with Rep. Bradshaw, Ms. Allison, Mr. Jensen, and Mr. Strong voting in opposition.

    Mr. Rees discussed the draft of a possible new Article XI, Section 8. He presented slides and distributed a handout titled "Special Districts."

    Mr. Dave Ovard, Chair, Utah Association of Special Districts, said that he liked the concept presented by Mr. Rees but would need time to discuss some minor issues before the commission considers its formal adoption.

    The commission expressed considerable interest in the new Article XI, Section 8 draft. Chair McKeachnie suggested that the commission decide whether it would like to further pursue this concept. The suggestion received support from all present except Sen. Dmitrich and Speaker Brown.

3.    Judicial selection process - Article VIII, Section 8 and Utah Code Ann. 20-A-12-101 through 105. Mr. Howe explained that Article VIII, Section 8 of the Utah Constitution requires the Legislature to provide for the composition and procedures of the Judicial Nominating Commissions. Although sections 20A-12-102 and 20A-12-103 of the Utah Code provide for the nomination and selection of judges, he explained that the procedures of how the judicial nominating commission are to operate has been delegated to the judiciary. Furthermore, he explained that these sections of the code will be repealed July 1, 1999 unless the Legislature extends or repeals the sunset date.

    Mr. Gary Doxey, General Counsel to the Governor, said that the governor has been pleased with the judicial nominating process and feels that all of the judges that he has appointed are well qualified. However, on one or two occasions, the governor has felt that the list of three names is too narrow. Mr. Doxey also noted that Article VIII, Section 8 provides sixty days for the Senate to confirm a nominee and absent a confirmation the nominating process begins anew. For the governor, however, the provision allows thirty days to make an appointment, otherwise the Supreme Court is authorized to make the appointment subject to Senate confirmation. It seems that Article VIII, Section 8 wields a heavy hammer for the governor if he does not make an appointment in a timely manner but allows the process to start over if the Senate does not confirm within 60 days. This process, he suggested, could be more fair to the governor.

    Mr. Rick Schwermer, Administrative Office of the Courts, said that the Judiciary's only interest in the Judicial Nominating Process is that the best quality judges be appointed. Concerning the nominating process, he said, the governor currently appoints all seven voting members. The statutes governing nominating commission's have recently been amended, he said, and that before any decisions are made concerning Article VIII, Section 8, it would seem wise to observe how the new statutes operate.

     MOTION: Sen. Nielson moved that the commission study Article VIII, Section 8 during the 1999 interim. The motion passed with Ms. Allison opposing the vote. Speaker Brown and Mr. Linton were absent for the vote.

4.     Other Business -

    Chair McKeachnie distributed a letter from the chairs of the Revenue and Taxation Interim Committee requesting the commission to review a constitutional amendment.

    MOTION: Sen. Nielson moved that the commission make a recommendation on the constitutional amendment drafted by the Revenue Taxation Interim Committee regarding the imposition of different fees on different classes of property, Article XIII, Section 14. The motion passed unanimously with Sen. Dmitrich, Speaker Brown, and Mr. Linton absent for the vote.

5.    Adjourn -

    MOTION: Chair McKeachnie adjourned the meeting at 12:13 p.m.