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H.B. 130
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6 AN ACT RELATING TO THE CONSTITUTIONAL DEFENSE COUNCIL; APPROPRIATING
7 MONIES FROM THE MINERAL LEASE ACCOUNT TO THE COUNCIL; MODIFYING
8 COUNCIL MEMBERSHIP; MODIFYING COUNCIL MEETING REQUIREMENTS;
9 MODIFYING COUNCIL DUTIES; CREATING THE CONSTITUTIONAL DEFENSE
10 RESTRICTED ACCOUNT; AND MAKING TECHNICAL CORRECTIONS.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 59-21-2, as last amended by Chapter 258, Laws of Utah 1998
14 63C-4-101, as last amended by Chapter 243, Laws of Utah 1996
15 63C-4-102, as last amended by Chapter 171, Laws of Utah 1995
16 67-5-1, as last amended by Chapter 198, Laws of Utah 1996
17 ENACTS:
18 63C-4-103, Utah Code Annotated 1953
19 Be it enacted by the Legislature of the state of Utah:
20 Section 1. Section 59-21-2 is amended to read:
21 59-21-2. Mineral Bonus Account -- Allocation of monies from Mineral Lease
22 Account.
23 (1) (a) The Mineral Bonus Account is created within the General Fund.
24 (b) All bonus money received by the state under Subsection 59-21-1 (3) shall be deposited
25 in this account.
26 (c) The Legislature shall appropriate from the Mineral Bonus Account in accordance with
27 Section 35 of the Mineral Leasing Act of 1920, 30 U.S.C. Sec. 191.
28 (d) The state treasurer shall:
29 (i) invest the money in the Mineral Bonus Account by following the procedures and
30 requirements of Title 51, Chapter 7, State Money Management Act; and
31 (ii) deposit all interest or other earnings derived from the account into the Mineral Bonus
32 Account.
33 (2) The Legislature shall make appropriations from the Mineral Lease Account as provided
34 in this Subsection (2).
35 (a) In addition to the appropriation under Subsection (2)(b)(ii), the Legislature shall
36 appropriate 32.5% of all deposits made to the Mineral Lease Account to the Permanent
37 Community Impact Fund established by Section 9-4-303 .
38 (b) (i) Except as provided in Subsection (2)(b)(ii), the Legislature shall appropriate 33.5%
39 of all deposits made to the Mineral Lease Account to the Board of Regents for allocation to the
40 state's institutions of higher education.
41 (ii) (A) For the fiscal year beginning on July 1, 1996, and ending on June 30, 1997, the
42 Legislature shall appropriate 20% of the mineral lease funds that would otherwise be appropriated
43 to the Board of Regents under Subsection (2)(b)(i) to the Permanent Community Impact Fund.
44 (B) For the fiscal year beginning on July 1, 1997, and ending on June 30, 1998, the
45 Legislature shall appropriate 40% of the mineral lease funds that would otherwise be appropriated
46 to the Board of Regents under Subsection (2)(b)(i) to the Permanent Community Impact Fund.
47 (C) For fiscal years beginning on or after July 1, 1998, the Legislature shall annually
48 appropriate as follows an additional 20% of the funds that would otherwise be appropriated to the
49 Board of Regents under Subsection (2)(b)(i) until the Legislature appropriates 100% of the funds
50 that would otherwise be appropriated to the Board of Regents:
51 (I) the Legislature shall make an appropriation to the Department of Transportation as
52 provided in Subsection (2)(f)(ii);
53 (II) the Legislature shall make an appropriation to the Department of Community and
54 Economic Development as provided in Subsection (2)(g);
55 (III) the Legislature shall make the appropriations provided for in Subsection (2)(h); and
56 (IV) the Legislature shall, after making the appropriations under Subsections
57 (2)(b)(ii)[
58 appropriated to the Board of Regents to the Permanent Community Impact Fund.
59 (D) For fiscal years beginning on or after July 1, 1996, the Legislature shall appropriate
60 an equivalent amount from the General Fund to the Board of Regents to replace the mineral lease
61 monies the Board of Regents would have otherwise received under Subsection (2)(b)(i).
62 (c) The Legislature shall appropriate 2.25% of all deposits made to the Mineral Lease
63 Account to the State Board of Education, to be used for education research and experimentation
64 in the use of staff and facilities designed to improve the quality of education in Utah.
65 (d) The Legislature shall appropriate 2.25% of all deposits made to the Mineral Lease
66 Account to the Utah Geological Survey, to be used for activities carried on by the survey having
67 as a purpose the development and exploitation of natural resources in the state.
68 (e) The Legislature shall appropriate 2.25% of all deposits made to the Mineral Lease
69 Account to the Water Research Laboratory at Utah State University, to be used for activities
70 carried on by the laboratory having as a purpose the development and exploitation of water
71 resources in the state.
72 (f) The Legislature shall appropriate the following percentages of all deposits made to the
73 Mineral Lease Account to the Department of Transportation, to be distributed as follows for the
74 purpose of constructing, repairing, and maintaining roads, or for other purposes authorized by
75 statute:
76 (i) the Legislature shall annually appropriate to the Department of Transportation 25% of
77 all deposits made to the Mineral Lease Account to be distributed to special service districts within
78 counties; and
79 (ii) in addition to the appropriation under Subsection (2)(f)(i), the Legislature shall make
80 the following appropriations from mineral lease funds that would be appropriated to the Board of
81 Regents under Subsection (2)(b)(i) except for the appropriations provided in Subsection
82 (2)(b)(ii)(C):
83 (A) for the fiscal year beginning on July 1, 1998, and ending on June 30, 1999, the
84 Legislature shall appropriate 5% of all deposits made to the Mineral Lease Account to the
85 Department of Transportation to be distributed to special service districts within counties;
86 (B) for the fiscal year beginning on July 1, 1999, and ending on June 30, 2000, the
87 Legislature shall appropriate 10% of all deposits made to the Mineral Lease Account to the
88 Department of Transportation to be distributed to special service districts within counties; and
89 (C) for fiscal years beginning on or after July 1, 2000, the Legislature shall appropriate
90 15% of all deposits made to the Mineral Lease Account to the Department of Transportation to be
91 distributed to special service districts within counties.
92 (g) (i) The Legislature shall appropriate the following percentages of all deposits made to
93 the Mineral Lease Account to the Department of Community and Economic Development to be
94 distributed as follows for the purpose of constructing, repairing, and maintaining roads, or for other
95 purposes authorized by statute:
96 (A) for the fiscal year beginning on July 1, 1998, and ending on June 30, 1999, the
97 Legislature shall appropriate 2.5% of all deposits made to the Mineral Lease Account to the
98 Department of Community and Economic Development to be distributed to special service districts
99 within counties:
100 (I) of the third, fourth, fifth, or sixth class;
101 (II) in which 4.5% or less of the mineral lease moneys within the state are generated; and
102 (III) that are significantly socially or economically impacted by the development of
103 minerals under the Mineral Lands Leasing Act, 30 U.S.C. Sec. 191, as a result of either the
104 transportation of hydrocarbons, including solid hydrocarbons as defined in Section 59-5-101 ,
105 within the county, the employment in hydrocarbon extraction, including the extraction of solid
106 hydrocarbons as defined in Section 59-5-101 , of persons residing within the county, or both; and
107 (B) for fiscal years beginning on or after July 1, 1999, the Legislature shall appropriate 5%
108 of all deposits made to the Mineral Lease Account to the Department of Community and Economic
109 Development to be distributed to special service districts within counties meeting the requirements
110 of Subsections (2)(g)(i)(A)(I) through (III).
111 (ii) The executive director of the Department of Community and Economic Development:
112 (A) shall determine whether a county meets the requirements of Subsections (2)(g)(i)(A)(I)
113 through (III);
114 (B) shall distribute the appropriations under Subsection (2)(g)(i) to special service districts
115 within counties that meet the requirements of Subsections (2)(g)(i)(A)(I) through (III) as provided
116 in Subsection (2)(g)(iii); and
117 (C) in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, may
118 make rules:
119 (I) providing a procedure for making the distributions under Subsection (2)(g)(ii)(B) to
120 special service districts; and
121 (II) defining the term "population" for purposes of Subsection (2)(g)(ii)(B).
122 (iii) For purposes of distributing the appropriations under Subsection (2)(g)(i) to special
123 service districts within counties, the Department of Community and Economic Development shall:
124 (A) (I) allocate 50% of the appropriations equally among the counties meeting the
125 requirements of Subsections (2)(g)(i)(A)(I) through (III); and
126 (II) allocate 50% of the appropriations based on the ratio that the population of each county
127 meeting the requirements of Subsections (2)(g)(i)(A)(I) through (III) bears to the total population
128 of all of the counties meeting the requirements of Subsections (2)(g)(i)(A)(I) through (III); and
129 (B) after making the allocations described in Subsection (2)(g)(iii)(A), distribute the
130 allocated revenues to special service districts within the counties as determined by the executive
131 director of the Department of Community and Economic Development after consulting with the
132 county legislative bodies of the counties meeting the requirements of Subsection (2)(g)(i)(A)(I)
133 through (III).
134 (h) (i) Except as provided in Subsection (2)(h)(ii), the Legislature shall:
135 (A) for the fiscal year beginning on July 1, 1999, and ending on June 30, 2000, appropriate
136 3% of all deposits made to the Mineral Lease Account to the Constitutional Defense Restricted
137 Account created in Section 63-C-4-103; and
138 (B) for fiscal years beginning on or after July 1, 2000, appropriate 1% of all deposits made
139 to the Mineral Lease Account to the Constitutional Defense Restricted Account created in Section
140 63C-4-103 .
141 (ii) If the appropriation required by Subsection (2)(h)(i) would cause the balance of the
142 Constitutional Defense Restricted Account to exceed $1 million, the Legislature shall reduce the
143 appropriation required by Subsection (2)(h)(i) so that the appropriation will cause the balance of
144 the Constitutional Defense Restricted Account to be $1 million.
145 [
146 Account:
147 (i) an amount equal to 52 cents multiplied by the number of acres of school or institutional
148 trust lands, lands owned by the Division of Parks and Recreation, and lands owned by the Division
149 of Wildlife Resources that are not under an in lieu of taxes contract, to each county in which those
150 lands are located;
151 (ii) to each county in which school or institutional trust lands are transferred to the federal
152 government after December 31, 1992, an amount equal to the number of transferred acres in the
153 county multiplied by a payment per acre equal to the difference between 52 cents per acre and the
154 per acre payment made to that county in the most recent payment under the federal payment in lieu
155 of taxes program, 31 U.S.C. Sec. 6901 or P.L. 97-258 as amended, unless the federal payment
156 was equal to or exceeded the 52 cents per acre, in which case no payment shall be made for the
157 transferred lands; and
158 (iii) to each county in which federal lands, which are entitlement lands under the federal
159 in lieu of taxes program, are transferred to the school or institutional trust, an amount equal to the
160 number of transferred acres in the county multiplied by a payment per acre equal to the difference
161 between the most recent per acre payment made under the federal payment in lieu of taxes program
162 and 52 cents per acre, unless the federal payment was equal to or less than 52 cents per acre, in
163 which case no payment shall be made for the transferred land.
164 [
165 provided for in Subsections (2)(a) through [
166 to the Mineral Lease Account to the Permanent Community Impact Fund.
167 (3) (a) Until July 1, 1999, the Board of Regents may not:
168 (i) increase the total amount of federal mineral lease funds allocated during any fiscal year
169 above the amount allocated during the last fiscal year more than the percentage increase in the
170 Consumer Price Index published by the United States Department of Labor for the last calendar
171 year; and
172 (ii) increase the total amount allocated more than 10% above the amount allocated during
173 the last fiscal year.
174 (b) If the total amount of mineral lease funds allocated to a recipient agency or institution
175 in any fiscal year is less than the total amount allocated for the last fiscal year, the allocation to that
176 agency or institution for the next fiscal year shall be increased by the amount of the reduction
177 before calculating and applying the percent limitation.
178 (c) (i) Higher education institutions shall expend the federal mineral lease funds
179 apportioned to them via institutional work programs.
180 (ii) The Board of Regents may approve those programs only when it is satisfied that a
181 majority of the funds will be expended for research, educational, or public service programs of
182 benefit to subdivisions of the state that are socially or economically impacted by the development
183 of minerals leased under the Mineral Lands Leasing Act in the planning, construction, and
184 maintenance of public facilities, and the provision of public services.
185 (d) (i) Except as provided in Subsection (3)(d)(ii), each institution of higher education is
186 entitled to an amount of mineral lease funds equal to the proportion of the total amount available
187 that the average number of full-time students enrolled during the preceding year at that institution
188 bears to the total enrollment of all institutions.
189 (ii) Enrollment at the University of Utah and Utah State University shall first be multiplied
190 by 1.25 and that product shall constitute the enrollment of the University of Utah and Utah State
191 University for the purposes of determining their proportionate allocation.
192 (4) The federal mineral lease funds allocated to the Water Research Laboratory at Utah
193 State University are in addition to any other money to which Utah State University is entitled under
194 this section.
195 (5) Federal mineral lease funds distributed by the Department of Transportation under
196 Subsection (2)(f) shall be allocated to county special service districts in amounts proportionate to
197 the amount of federal mineral lease money generated by the county in which a special service
198 district is located.
199 (6) (a) Each county receiving money under Subsection (2)[
200 a school district or other special service district within the county.
201 (b) Beginning in fiscal year 1994-95 and in each year thereafter, the amount per acre
202 provided in Subsection (2)[
203 measured by the Consumer Price Index.
204 (7) Each agency, board, institution of higher education, and political subdivision receiving
205 money under this chapter shall provide the Legislature, through the Office of the Legislative Fiscal
206 Analyst, with a complete accounting of the use of that money on an annual basis. This accounting
207 shall:
208 (a) include actual expenditures for the prior fiscal year, budgeted expenditures for the
209 current fiscal year, and planned expenditures for the following fiscal year; and
210 (b) be reviewed by the Economic Development and Human Resources Appropriation
211 Subcommittee as part of its normal budgetary process under Title 63, Chapter 38, Budgetary
212 Procedures Act.
213 (8) All monies in or appropriated to the Targeted Allocation Fund shall be transferred to
214 the Permanent Community Impact Fund.
215 Section 2. Section 63C-4-101 is amended to read:
216 63C-4-101. Creation of Constitutional Defense Council.
217 (1) There is created the Constitutional Defense Council.
218 (2) The defense council shall consist of the following [
219 (a) the governor who shall serve as chair of the council;
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221 [
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223 [
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232 (f) two elected county commissioners from different counties who are selected by the Utah
233 Association of Counties.
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235 be appointed for the unexpired term in the same manner as the original appointment.
236 [
237 members of the council.
238 (b) A majority of the membership on the defense council is required for a quorum to
239 conduct council business. A majority vote of the quorum is required for any action taken by the
240 defense council.
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242 Office of the Attorney General shall provide staff to the defense council.
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249 per diem, or expenses from their agency for their service may receive per diem and expenses
250 incurred in the performance of their official duties from the council at the rates established by the
251 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
252 (ii) State government officer and employee members may decline to receive per diem and
253 expenses for their service.
254 (b) (i) Local government members who do not receive salary, per diem, or expenses from
255 the entity that they represent for their service may receive per diem and expenses incurred in the
256 performance of their official duties at the rates established by the Division of Finance under
257 Sections 63A-3-106 and 63A-3-107 .
258 (ii) Local government members may decline to receive per diem and expenses for their
259 service.
260 (c) Legislators on the committee shall receive compensation and expenses as provided by
261 law and legislative rule.
262 [
263 Constitutional Defense Restricted Account created in Section 63C-4-103 .
264 [
265 [
266 [
267 [
268 (b) Monies appropriated for or received by the council may be expended by the governor
269 with the concurrence of the council.
270 Section 3. Section 63C-4-102 is amended to read:
271 63C-4-102. Duties.
272 (1) The Constitutional Defense Council shall provide advice to the governor and to the
273 Legislature on the following types of issues:
274 (a) the constitutionality of unfunded federal mandates;
275 (b) when making recommendations to challenge the federal mandates and regulations
276 described in Subsections [
277 federal mandates or regulations;
278 (c) legal and policy issues surrounding state and local government rights under R.S. 2477;
279 and
280 (d) legal issues relating to the rights of the School and Institutional Trust Lands
281 Administration and its beneficiaries; and
282 [
283 challenging:
284 (i) federal court rulings that hinder the management of the state's prison system and place
285 undue financial hardship on the state's taxpayers;
286 (ii) federal laws or regulations that reduce or negate water rights or the rights of owners
287 of private property;
288 (iii) conflicting federal regulations or policies in land management on federal land;
289 (iv) federal intervention that would damage the state's mining, timber, and ranching
290 industries; [
291 (v) the authority of the Environmental Protection Agency and Congress to mandate local
292 air quality standards and penalties; and
293 (vi) other activities that are consistent with the purpose of the council.
294 (2) The council chair may, with the concurrence of the council, require the attorney general
295 or a designee to provide testimony on potential legal actions that would enhance the state's
296 sovereignty or authority on issues affecting Utah and the well-being of its citizens.
297 (3) The council chair may, with the concurrence of the council, direct the attorney general
298 to initiate and prosecute any action that the council determines will further its purposes.
299 (4) (a) (i) Subject to the provisions of this section, the council may select and employ
300 attorneys to implement the purposes and duties of the council.
301 (ii) The council chair may, with the concurrence of the council, direct any council attorney
302 in any manner considered appropriate by the attorney general to best serve the purposes of the
303 council.
304 [
305 of no less than ten attorneys considered to be qualified to represent the council [
306 this section. [
307 (ii) The council may employ attorneys only from that list.
308 [
309 selected and approved for employment [
310 [
311 all claims for payments for legal services that are submitted by the council.
312 [
313 the council, order the attorney general or an attorney employed by the council to cease work to be
314 charged to the fund.
315 [
316 the House of Representatives and the president of the Senate that summarizes the council's
317 activities.
318 Section 4. Section 63C-4-103 is enacted to read:
319 63C-4-103. Creation of Constitutional Defense Restricted Account -- Sources of funds
320 -- Uses of funds.
321 (1) There is created a restricted account within the General Fund known as the
322 Constitutional Defense Restricted Account.
323 (2) The account consists of monies from the following revenue sources:
324 (a) monies deposited to the fund from the Mineral Bonus Account as required by
325 Subsection 59-21-2 (2);
326 (b) voluntary contributions;
327 (c) monies received by the Constitutional Defense Council from other state agencies; and
328 (d) appropriations made by the Legislature.
329 (3) Funds in the account shall be nonlapsing.
330 (4) (a) The account shall earn interest.
331 (b) All interest earned on account monies shall be deposited into the General Fund.
332 (5) The account balance may not exceed $1 million.
333 (6) The Legislature may annually appropriate monies from the Constitutional Defense
334 Restricted Account to the Constitutional Defense Council to carry out its duties in Section
335 63C-4-102 .
336 Section 5. Section 67-5-1 is amended to read:
337 67-5-1. General duties.
338 The attorney general shall:
339 (1) except as provided in Sections 10-3-928 and 17-18-1 , attend the Supreme Court and
340 the Court of Appeals of this state, and all courts of the United States, and prosecute or defend all
341 causes to which the state, or any officer, board, or commission of the state in an official capacity
342 is a party; and take charge, as attorney, of all civil legal matters in which the state is interested;
343 (2) when jointly agreed by the governor and the attorney general:
344 (a) initiate legal proceedings in a court of competent jurisdiction on behalf of the state, or
345 any officer, board, commission, agency, or instrumentality of the state for the purpose of opposing
346 or challenging federal laws, regulations, or court orders and their impact on or applicability to the
347 state; and
348 (b) as the budget permits, retain outside legal counsel with appropriate expertise to
349 represent the state in the legal proceedings;
350 (3) after judgment on any cause referred to in Subsection (1), direct the issuance of process
351 as necessary to execute the judgment;
352 (4) account for, and pay over to the proper officer, all moneys which come into his
353 possession, that belong to the state;
354 (5) keep a file of all cases in which he is required to appear, including any documents and
355 papers showing the court in which the cases have been instituted and tried, and whether they are
356 civil or criminal, and:
357 (a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
358 judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
359 satisfied, the return of the sheriff;
360 (b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
361 and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
362 sentence has been executed, if not executed, of the reason of the delay or prevention; and
363 (c) deliver this information to his successor in office;
364 (6) exercise supervisory powers over the district and county attorneys of the state in all
365 matters pertaining to the duties of their offices, and from time to time require of them reports of
366 the condition of public business entrusted to their charge;
367 (7) give his opinion in writing and without fee to the Legislature or either house, and to
368 any state officer, board, or commission, and to any county attorney or district attorney, when
369 required, upon any question of law relating to their respective offices;
370 (8) when required by the public service or directed by the governor, assist any district or
371 county attorney in the discharge of his duties;
372 (9) purchase in the name of the state, under the direction of the state Board of Examiners,
373 any property offered for sale under execution issued upon judgments in favor of or for the use of
374 the state, and enter satisfaction in whole or in part of the judgments as the consideration of the
375 purchases;
376 (10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
377 has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
378 precedence of the judgment in favor of the state, redeem the property, under the direction of the
379 state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
380 necessary for the redemption, upon the order of the state Board of Examiners, out of any money
381 appropriated for these purposes;
382 (11) when in his opinion it is necessary for the collection or enforcement of any judgment,
383 institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
384 annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
385 the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
386 appropriated;
387 (12) discharge the duties of a member of all official boards of which he is or may be made
388 a member by the Utah Constitution or by the laws of the state, and other duties prescribed by law;
389 (13) institute and prosecute proper proceedings in any court of the state or of the United
390 States, to restrain and enjoin corporations organized under the laws of this or any other state or
391 territory from acting illegally or in excess of their corporate powers or contrary to public policy,
392 and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
393 affairs;
394 (14) institute investigations for the recovery of all real or personal property that may have
395 escheated or should escheat to the state, and for that purpose he may cite any persons before any
396 of the district courts to answer inquiries and render accounts concerning any property, may
397 examine all books and papers of any corporations, and when any real or personal property is
398 discovered that should escheat to the state, the attorney general shall institute suit in the district
399 court of the county where the property is situated for its recovery, and escheat that property to the
400 state;
401 (15) administer the Children's Justice Center as a program to be implemented in various
402 counties pursuant to Sections 67-5b-101 through 67-5b-107 ; and
403 (16) assist the Constitutional Defense Council as provided in [
404 63C, Chapter 4, Constitutional Defense Council.
Legislative Review Note
as of 2-15-99 2:39 PM
This legislation raises the following constitutional or statutory concerns:
Federal law directs that, in allocating mineral lease monies, state legislatures shall give priority in
the allocation and use of funds to those subdivisions of the state socially or economically impacted
by development of minerals leased under the mineral leasing act for (1) planning; (2) construction
and maintenance of public facilities; and (3) provision of public services.
This bill would divert mineral lease monies to the Constitutional Defense Restricted Account to
be appropriated to the Constitutional Defense Council. This use of mineral lease monies may
violate federal law. The constitutionality of the bill could be challenged based on the Supremacy
Clause (Article VI, Section 2) of the United States Constitution.