Third Substitute H.B. 244

Senator Leonard M. Blackham proposes to substitute the following bill:

1 CONSTITUTIONAL DEFENSE COUNCIL AMENDMENTS
2 2000 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Dennis H. Iverson
5 AN ACT RELATING TO STATE BOARDS AND COMMISSIONS; MODIFYING
6 MEMBERSHIP ON THE CONSTITUTIONAL DEFENSE COUNCIL; CLARIFYING MEETING
7 REQUIREMENTS AND THE POWERS OF THE CHAIR AND THE MEMBERS;
8 EXPANDING USES OF AVAILABLE FUNDS; PROVIDING FOR A PLAN FOR R.S. 2477
9 RIGHTS; MAKING TECHNICAL CORRECTIONS; AND PROVIDING A COORDINATION
10 CLAUSE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 63C-4-101, as last amended by Chapter 371, Laws of Utah 1999
14 63C-4-102, as last amended by Chapter 371, Laws of Utah 1999
15 63C-4-103, as enacted by Chapter 371, Laws of Utah 1999
16 ENACTS:
17 63C-4-104, Utah Code Annotated 1953
18 Be it enacted by the Legislature of the state of Utah:
19 Section 1. Section 63C-4-101 is amended to read:
20 63C-4-101. Creation of Constitutional Defense Council.
21 (1) There is created the Constitutional Defense Council.
22 (2) The defense council shall consist of the following [nine] 11 members:
23 (a) the governor who shall serve as chair of the council;
24 (b) the president of the Senate or his designee;
25 (c) the speaker of the House or his designee;

26 (d) the minority leader of the Senate or his designee;
27 (e) the minority leader of the House or his designee;
28 (f) two citizen members appointed by the governor; and
29 (g) [two] four elected county commissioners, county council members, or county
30 executives from different counties who are selected by the Utah Association of Counties.
31 (3) (a) Except as required by Subsection (3)(b), the two citizen members shall serve a
32 four-year term beginning July 1, 1994.
33 (b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time
34 of appointment or reappointment, adjust the length of terms to ensure that the terms of council
35 members are staggered so that one citizen member of the council is appointed every two years.
36 (c) A citizen member is eligible for reappointment.
37 (4) When a vacancy occurs in the membership for any reason, the replacement shall be
38 appointed for the unexpired term in the same manner as the original appointment.
39 (5) (a) The defense council shall meet at [times at the call of the chair] least quarterly or
40 more frequently as needed.
41 (b) The governor or any [five] six members of the council may call a meeting of the
42 council.
43 (c) Before calling a meeting, the governor or council members shall solicit items for the
44 agenda from other members of the council.
45 [(b)] (d) A majority of the membership on the defense council is required for a quorum to
46 conduct council business. A majority vote of the quorum is required for any action taken by the
47 defense council.
48 (6) The Office of the Attorney General shall provide staff to the defense council.
49 (7) (a) (i) Members who are not government employees shall receive no compensation or
50 benefits for their services, but may receive per diem and expenses incurred in the performance of
51 the member's official duties at the rates established by the Division of Finance under Sections
52 63A-3-106 and 63A-3-107 .
53 (ii) Members may decline to receive per diem and expenses for their service.
54 (b) (i) State government officer and employee members who do not receive salary, per
55 diem, or expenses from their agency for their service may receive per diem and expenses incurred
56 in the performance of their official duties from the council at the rates established by the Division

57 of Finance under Sections 63A-3-106 and 63A-3-107 .
58 (ii) State government officer and employee members may decline to receive per diem and
59 expenses for their service.
60 (c) (i) Local government members who do not receive salary, per diem, or expenses from
61 the entity that they represent for their service may receive per diem and expenses incurred in the
62 performance of their official duties at the rates established by the Division of Finance under
63 Sections 63A-3-106 and 63A-3-107 .
64 (ii) Local government members may decline to receive per diem and expenses for their
65 service.
66 (d) Legislators on the committee shall receive compensation and expenses as provided by
67 law and legislative rule.
68 (8) (a) The council shall be funded from the Constitutional Defense Restricted Account
69 created in Section 63C-4-103 .
70 (b) Monies appropriated for or received by the council may be expended by the governor
71 in consultation with the council.
72 Section 2. Section 63C-4-102 is amended to read:
73 63C-4-102. Duties.
74 (1) The Constitutional Defense Council is an advisory council to the governor and [to] the
75 Legislature on the following types of issues:
76 (a) the constitutionality of unfunded federal mandates;
77 (b) when making recommendations to challenge the federal mandates and regulations
78 described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those federal
79 mandates or regulations;
80 (c) legal and policy issues surrounding state and local government rights under R.S. 2477;
81 and
82 (d) legal issues relating to the rights of the School and Institutional Trust Lands
83 Administration and its beneficiaries; and
84 (e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
85 (i) federal court rulings that hinder the management of the state's prison system and place
86 undue financial hardship on the state's taxpayers;
87 (ii) federal laws or regulations that reduce or negate water rights or the rights of owners

88 of private property, or the rights and interest of state and local governments, including sovereignty
89 interests and the power to provide for the health, safety, and welfare, and promote the prosperity
90 of their inhabitants;
91 (iii) conflicting federal regulations or policies in land management on federal land;
92 (iv) federal intervention that would damage the state's mining, timber, and ranching
93 industries;
94 (v) the authority of the Environmental Protection Agency and Congress to mandate local
95 air quality standards and penalties; and
96 (vi) other [activities] issues that are [consistent with the purpose of the council] relevant
97 to Subsections (1)(a) through (e).
98 (2) The council chair may require the attorney general or a designee to provide testimony
99 on potential legal actions that would enhance the state's sovereignty or authority on issues affecting
100 Utah and the well-being of its citizens.
101 (3) The council chair may direct the attorney general to initiate and prosecute any action
102 that the council determines will further its purposes.
103 (4) (a) (i) Subject to the provisions of this section, the council may select and employ
104 attorneys to implement the purposes and duties of the council.
105 (ii) The council chair may, in consultation with the council, direct any council attorney in
106 any manner considered appropriate by the attorney general to best serve the purposes of the
107 council.
108 (b) (i) The council may meet with the attorney general annually and compile a list of
109 attorneys, including attorneys in private practice, considered to be qualified to represent the council
110 under this section.
111 (ii) The council may employ attorneys from that list.
112 (c) The attorney general shall negotiate a contract for services with any attorney selected
113 and approved for employment under this section.
114 (5) The council chair shall, only with the concurrence of the council, review and approve
115 all claims for payments for legal services that are submitted to the council.
116 (6) Within five business days' notice, the council chair may order the attorney general or,
117 only with the concurrence of the council, order an attorney employed by the council to cease work
118 to be charged to the fund.

119 (7) The council shall submit a report on December 1 of each year to the speaker of the
120 House of Representatives and the president of the Senate that summarizes the council's activities.
121 Section 3. Section 63C-4-103 is amended to read:
122 63C-4-103. Creation of Constitutional Defense Restricted Account -- Sources of
123 funds -- Uses of funds.
124 (1) There is created a restricted account within the General Fund known as the
125 Constitutional Defense Restricted Account.
126 (2) The account consists of monies from the following revenue sources:
127 (a) monies deposited to the [fund from the Mineral Bonus Account] account as required
128 by [Subsection 59-21-2 (2)] Section 53C-3-202 ;
129 (b) voluntary contributions;
130 (c) monies received by the Constitutional Defense Council from other state agencies; and
131 (d) appropriations made by the Legislature.
132 (3) Funds in the account shall be nonlapsing.
133 [(4) (a) The account shall earn interest.]
134 [(b) All interest earned on account monies shall be deposited into the General Fund.]
135 [(5)] (4) The account balance may not exceed [$1 million] $2,000,000.
136 [(6)] (5) The Legislature may annually appropriate monies from the Constitutional Defense
137 Restricted Account to one or more of the following:
138 (a) the Constitutional Defense Council to carry out its duties in Section 63C-4-102 [.];
139 (b) the Office of the Governor for the purpose of asserting, defending, or litigating state
140 and local government rights under R.S. 2477, in accordance with a plan developed and approved
141 as provided in Section 63C-4-104 ; or
142 (c) a county or association of counties to assist counties, consistent with the purposes of
143 the council, in pursuing issues affecting the counties.
144 Section 4. Section 63C-4-104 is enacted to read:
145 63C-4-104. Plan for R.S. 2477 rights.
146 (1) As used in this section, "plan" means a guiding document that:
147 (a) is developed jointly by the Utah Association of Counties and the state;
148 (b) is approved by the Constitutional Defense Council; and
149 (c) presents the broad framework of a proposed working relationship between the state and

150 participating counties collectively for the purpose of asserting, defending, or litigating state and
151 local government rights under R.S. 2477.
152 (2) The Constitutional Defense Council may approve a plan if the plan:
153 (a) provides for a good faith, cooperative effort between the state and each participating
154 county;
155 (b) allows a county to formally agree to participate in the plan by adopting a resolution;
156 (c) provides that the state and a participating county are equal partners in determining
157 litigation strategy and the expenditure of resources with respect to that county's rights under R.S.
158 2477; and
159 (d) provides a process for resolving any disagreement between the state and a participating
160 county about litigation strategy or resource expenditure that includes the following requirements:
161 (i) the governor or the governor's designee and a representative of the Utah Association
162 of Counties shall first attempt to resolve the disagreement;
163 (ii) if the county and the state continue to disagree, the county, the governor, and the Utah
164 Association of Counties shall present their recommendations to the Constitutional Defense Council
165 for a final decision about the strategy or expenditure in question; and
166 (iii) the county may pursue a strategy or make an expenditure contrary to the final decision
167 of the Constitutional Defense Council only if the county does not claim resources provided to fund
168 the plan.
169 Section 5. Coordination clause.
170 (1) If this bill and H.B. 207, Use of Constitutional Defense Council Restricted Account,
171 both pass, it is the intent of the Legislature that the amendments in Section 63C-4-103 in this bill
172 supersede the amendments to Section 63C-4-103 in H.B. 207.
173 (2) If this bill and S.B. 55, Mineral Lease Act Amendments, both pass, it is the intent of
174 the Legislature that the amendments in Section 63C-4-103 in this bill supersede the amendments
175 to Section 63C-4-103 in S.B. 55.