H.B. 244 Enrolled

CONSTITUTIONAL DEFENSE COUNCIL AMENDMENTS
2000 GENERAL SESSION
STATE OF UTAH
Sponsor: Dennis H. Iverson
AN ACT RELATING TO STATE BOARDS AND COMMISSIONS; MODIFYING
MEMBERSHIP ON THE CONSTITUTIONAL DEFENSE COUNCIL; CLARIFYING
MEETING REQUIREMENTS AND THE POWERS OF THE CHAIR AND THE MEMBERS;
EXPANDING USES OF AVAILABLE FUNDS; PROVIDING FOR A PLAN FOR R.S. 2477
RIGHTS; MAKING TECHNICAL CORRECTIONS; AND PROVIDING A COORDINATION
CLAUSE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
63C-4-101, as last amended by Chapter 371, Laws of Utah 1999
63C-4-102, as last amended by Chapter 371, Laws of Utah 1999
63C-4-103, as enacted by Chapter 371, Laws of Utah 1999
ENACTS:
63C-4-104, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 63C-4-101 is amended to read:
63C-4-101. Creation of Constitutional Defense Council.
(1) There is created the Constitutional Defense Council.
(2) The defense council shall consist of the following [nine] 11 members:
(a) the governor who shall serve as chair of the council;
(b) the president of the Senate or his designee;
(c) the speaker of the House or his designee;
(d) the minority leader of the Senate or his designee;
(e) the minority leader of the House or his designee;
(f) two citizen members appointed by the governor; and
(g) [two] four elected county commissioners, county council members, or county

executives from different counties who are selected by the Utah Association of Counties.
(3) (a) Except as required by Subsection (3)(b), the two citizen members shall serve a
four-year term beginning July 1, 1994.
(b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time
of appointment or reappointment, adjust the length of terms to ensure that the terms of council
members are staggered so that one citizen member of the council is appointed every two years.
(c) A citizen member is eligible for reappointment.
(4) When a vacancy occurs in the membership for any reason, the replacement shall be
appointed for the unexpired term in the same manner as the original appointment.
(5) (a) The defense council shall meet at [times at the call of the chair] least quarterly or more
frequently as needed.
(b) The governor or any [five] six members of the council may call a meeting of the council.
(c) Before calling a meeting, the governor or council members shall solicit items for the
agenda from other members of the council.
[(b)] (d) A majority of the membership on the defense council is required for a quorum to
conduct council business. A majority vote of the quorum is required for any action taken by the
defense council.
(6) The Office of the Attorney General shall provide staff to the defense council.
(7) (a) (i) Members who are not government employees shall receive no compensation or
benefits for their services, but may receive per diem and expenses incurred in the performance of the
member's official duties at the rates established by the Division of Finance under Sections 63A-3-106
and 63A-3-107 .
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem,
or expenses from their agency for their service may receive per diem and expenses incurred in the
performance of their official duties from the council at the rates established by the Division of Finance
under Sections 63A-3-106 and 63A-3-107 .
(ii) State government officer and employee members may decline to receive per diem and

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expenses for their service.
(c) (i) Local government members who do not receive salary, per diem, or expenses from the
entity that they represent for their service may receive per diem and expenses incurred in the
performance of their official duties at the rates established by the Division of Finance under Sections
63A-3-106 and 63A-3-107 .
(ii) Local government members may decline to receive per diem and expenses for their
service.
(d) Legislators on the committee shall receive compensation and expenses as provided by law
and legislative rule.
(8) (a) The council shall be funded from the Constitutional Defense Restricted Account
created in Section 63C-4-103 .
(b) Monies appropriated for or received by the council may be expended by the governor in
consultation with the council.
Section 2. Section 63C-4-102 is amended to read:
63C-4-102. Duties.
(1) The Constitutional Defense Council is an advisory council to the governor and [to] the
Legislature on the following types of issues:
(a) the constitutionality of unfunded federal mandates;
(b) when making recommendations to challenge the federal mandates and regulations
described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those federal
mandates or regulations;
(c) legal and policy issues surrounding state and local government rights under R.S. 2477;
[and]
(d) legal issues relating to the rights of the School and Institutional Trust Lands
Administration and its beneficiaries; and
(e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
(i) federal court rulings that hinder the management of the state's prison system and place
undue financial hardship on the state's taxpayers;

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(ii) federal laws or regulations that reduce or negate water rights or the rights of owners of
private property, or the rights and interest of state and local governments, including sovereignty
interests and the power to provide for the health, safety, and welfare, and promote the prosperity of
their inhabitants;
(iii) conflicting federal regulations or policies in land management on federal land;
(iv) federal intervention that would damage the state's mining, timber, and ranching industries;
(v) the authority of the Environmental Protection Agency and Congress to mandate local air
quality standards and penalties; and
(vi) other [activities] issues that are [consistent with the purpose of the council] relevant to
Subsections (1)(a) through (e).
(2) The council chair may require the attorney general or a designee to provide testimony on
potential legal actions that would enhance the state's sovereignty or authority on issues affecting Utah
and the well-being of its citizens.
(3) The council chair may direct the attorney general to initiate and prosecute any action that
the council determines will further its purposes.
(4) (a) (i) Subject to the provisions of this section, the council may select and employ
attorneys to implement the purposes and duties of the council.
(ii) The council chair may, in consultation with the council, direct any council attorney in any
manner considered appropriate by the attorney general to best serve the purposes of the council.
(b) (i) The council may meet with the attorney general annually and compile a list of
attorneys, including attorneys in private practice, considered to be qualified to represent the council
under this section.
(ii) The council may employ attorneys from that list.
(c) The attorney general shall negotiate a contract for services with any attorney selected and
approved for employment under this section.
(5) The council chair shall, only with the concurrence of the council, review and approve all
claims for payments for legal services that are submitted to the council.
(6) Within five business days' notice, the council chair may order the attorney general or, only

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with the concurrence of the council, order an attorney employed by the council to cease work to be
charged to the fund.
(7) The council shall submit a report on December 1 of each year to the speaker of the House
of Representatives and the president of the Senate that summarizes the council's activities.
Section 3. Section 63C-4-103 is amended to read:
63C-4-103. Creation of Constitutional Defense Restricted Account -- Sources of funds
-- Uses of funds.
(1) There is created a restricted account within the General Fund known as the Constitutional
Defense Restricted Account.
(2) The account consists of monies from the following revenue sources:
(a) monies deposited to the [fund from the Mineral Bonus Account] account as required by
[Subsection 59-21-2 (2)] Section 53C-3-202 ;
(b) voluntary contributions;
(c) monies received by the Constitutional Defense Council from other state agencies; and
(d) appropriations made by the Legislature.
(3) Funds in the account shall be nonlapsing.
[(4) (a) The account shall earn interest.]
[(b) All interest earned on account monies shall be deposited into the General Fund.]
[(5)] (4) The account balance may not exceed [$1 million] $2,000,000.
[(6)] (5) The Legislature may annually appropriate monies from the Constitutional Defense
Restricted Account to one or more of the following:
(a) the Constitutional Defense Council to carry out its duties in Section 63C-4-102 [.];
(b) the Office of the Governor for the purpose of asserting, defending, or litigating state and
local government rights under R.S. 2477, in accordance with a plan developed and approved as
provided in Section 63C-4-104 ; or
(c) a county or association of counties to assist counties, consistent with the purposes of the
council, in pursuing issues affecting the counties.
Section 4. Section 63C-4-104 is enacted to read:

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63C-4-104. Plan for R.S. 2477 rights.
(1) As used in this section, "plan" means a guiding document that:
(a) is developed jointly by the Utah Association of Counties and the state;
(b) is approved by the Constitutional Defense Council; and
(c) presents the broad framework of a proposed working relationship between the state and
participating counties collectively for the purpose of asserting, defending, or litigating state and local
government rights under R.S. 2477.
(2) The Constitutional Defense Council may approve a plan if the plan:
(a) provides for a good faith, cooperative effort between the state and each participating
county;
(b) allows a county to formally agree to participate in the plan by adopting a resolution;
(c) provides that the state and a participating county are equal partners in determining
litigation strategy and the expenditure of resources with respect to that county's rights under R.S.
2477; and
(d) provides a process for resolving any disagreement between the state and a participating
county about litigation strategy or resource expenditure that includes the following requirements:
(i) the governor or the governor's designee and a representative of the Utah Association of
Counties shall first attempt to resolve the disagreement;
(ii) if the county and the state continue to disagree, the county, the governor, and the Utah
Association of Counties shall present their recommendations to the Constitutional Defense Council
for a final decision about the strategy or expenditure in question; and
(iii) the county may pursue a strategy or make an expenditure contrary to the final decision
of the Constitutional Defense Council only if the county does not claim resources provided to fund
the plan.
Section 5. Coordination clause.
(1) If this bill and H.B. 207, Use of Constitutional Defense Council Restricted Account, both
pass, it is the intent of the Legislature that the amendments in Section 63C-4-103 in this bill supersede
the amendments to Section 63C-4-103 in H.B. 207.

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(2) If this bill and S.B. 55, Mineral Lease Act Amendments, both pass, it is the intent of the
Legislature that the amendments in Section 63C-4-103 in this bill supersede the amendments to
Section 63C-4-103 in S.B. 55.

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