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Third Substitute H.B. 244
Senator Leonard M. Blackham proposes to substitute the following bill:
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CONSTITUTIONAL DEFENSE COUNCIL AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Dennis H. Iverson
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AN ACT RELATING TO STATE BOARDS AND COMMISSIONS; MODIFYING
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MEMBERSHIP ON THE CONSTITUTIONAL DEFENSE COUNCIL; CLARIFYING MEETING
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REQUIREMENTS AND THE POWERS OF THE CHAIR AND THE MEMBERS;
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EXPANDING USES OF AVAILABLE FUNDS; PROVIDING FOR A PLAN FOR R.S. 2477
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RIGHTS; MAKING TECHNICAL CORRECTIONS; AND PROVIDING A COORDINATION
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CLAUSE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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63C-4-101, as last amended by Chapter 371, Laws of Utah 1999
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63C-4-102, as last amended by Chapter 371, Laws of Utah 1999
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63C-4-103, as enacted by Chapter 371, Laws of Utah 1999
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ENACTS:
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63C-4-104, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
63C-4-101
is amended to read:
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63C-4-101. Creation of Constitutional Defense Council.
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(1) There is created the Constitutional Defense Council.
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(2) The defense council shall consist of the following [nine] 11 members:
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(a) the governor who shall serve as chair of the council;
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(b) the president of the Senate or his designee;
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(c) the speaker of the House or his designee;
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(d) the minority leader of the Senate or his designee;
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(e) the minority leader of the House or his designee;
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(f) two citizen members appointed by the governor; and
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(g) [two] four elected county commissioners, county council members, or county
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executives from different counties who are selected by the Utah Association of Counties.
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(3) (a) Except as required by Subsection (3)(b), the two citizen members shall serve a
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four-year term beginning July 1, 1994.
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(b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time
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of appointment or reappointment, adjust the length of terms to ensure that the terms of council
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members are staggered so that one citizen member of the council is appointed every two years.
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(c) A citizen member is eligible for reappointment.
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(4) When a vacancy occurs in the membership for any reason, the replacement shall be
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appointed for the unexpired term in the same manner as the original appointment.
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(5) (a) The defense council shall meet at [times at the call of the chair] least quarterly or
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more frequently as needed.
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(b) The governor or any [five] six members of the council may call a meeting of the
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council.
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(c) Before calling a meeting, the governor or council members shall solicit items for the
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agenda from other members of the council.
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[(b)] (d) A majority of the membership on the defense council is required for a quorum to
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conduct council business. A majority vote of the quorum is required for any action taken by the
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defense council.
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(6) The Office of the Attorney General shall provide staff to the defense council.
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(7) (a) (i) Members who are not government employees shall receive no compensation or
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benefits for their services, but may receive per diem and expenses incurred in the performance of
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the member's official duties at the rates established by the Division of Finance under Sections
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63A-3-106
and
63A-3-107
.
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(ii) Members may decline to receive per diem and expenses for their service.
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(b) (i) State government officer and employee members who do not receive salary, per
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diem, or expenses from their agency for their service may receive per diem and expenses incurred
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in the performance of their official duties from the council at the rates established by the Division
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of Finance under Sections
63A-3-106
and
63A-3-107
.
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(ii) State government officer and employee members may decline to receive per diem and
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expenses for their service.
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(c) (i) Local government members who do not receive salary, per diem, or expenses from
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the entity that they represent for their service may receive per diem and expenses incurred in the
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performance of their official duties at the rates established by the Division of Finance under
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Sections
63A-3-106
and
63A-3-107
.
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(ii) Local government members may decline to receive per diem and expenses for their
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service.
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(d) Legislators on the committee shall receive compensation and expenses as provided by
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law and legislative rule.
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(8) (a) The council shall be funded from the Constitutional Defense Restricted Account
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created in Section
63C-4-103
.
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(b) Monies appropriated for or received by the council may be expended by the governor
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in consultation with the council.
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Section 2.
Section
63C-4-102
is amended to read:
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63C-4-102. Duties.
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(1) The Constitutional Defense Council is an advisory council to the governor and [to] the
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Legislature on the following types of issues:
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(a) the constitutionality of unfunded federal mandates;
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(b) when making recommendations to challenge the federal mandates and regulations
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described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those federal
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mandates or regulations;
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(c) legal and policy issues surrounding state and local government rights under R.S. 2477;
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and
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(d) legal issues relating to the rights of the School and Institutional Trust Lands
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Administration and its beneficiaries; and
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(e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
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(i) federal court rulings that hinder the management of the state's prison system and place
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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
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of private property, or the rights and interest of state and local governments, including sovereignty
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interests and the power to provide for the health, safety, and welfare, and promote the prosperity
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of their inhabitants;
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(iii) conflicting federal regulations or policies in land management on federal land;
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(iv) federal intervention that would damage the state's mining, timber, and ranching
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industries;
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(v) the authority of the Environmental Protection Agency and Congress to mandate local
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air quality standards and penalties; and
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(vi) other [activities] issues that are [consistent with the purpose of the council] relevant
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to Subsections (1)(a) through (e).
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(2) The council chair may require the attorney general or a designee to provide testimony
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on potential legal actions that would enhance the state's sovereignty or authority on issues affecting
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Utah and the well-being of its citizens.
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(3) The council chair may direct the attorney general to initiate and prosecute any action
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that the council determines will further its purposes.
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(4) (a) (i) Subject to the provisions of this section, the council may select and employ
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attorneys to implement the purposes and duties of the council.
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(ii) The council chair may, in consultation with the council, direct any council attorney in
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any manner considered appropriate by the attorney general to best serve the purposes of the
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council.
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(b) (i) The council may meet with the attorney general annually and compile a list of
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attorneys, including attorneys in private practice, considered to be qualified to represent the council
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under this section.
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(ii) The council may employ attorneys from that list.
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(c) The attorney general shall negotiate a contract for services with any attorney selected
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and approved for employment under this section.
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(5) The council chair shall, only with the concurrence of the council, review and approve
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all claims for payments for legal services that are submitted to the council.
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(6) Within five business days' notice, the council chair may order the attorney general or,
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only with the concurrence of the council, order an attorney employed by the council to cease work
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to be charged to the fund.
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(7) The council shall submit a report on December 1 of each year to the speaker of the
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House of Representatives and the president of the Senate that summarizes the council's activities.
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Section 3.
Section
63C-4-103
is amended to read:
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63C-4-103. Creation of Constitutional Defense Restricted Account -- Sources of
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funds -- Uses of funds.
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(1) There is created a restricted account within the General Fund known as the
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Constitutional Defense Restricted Account.
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(2) The account consists of monies from the following revenue sources:
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(a) monies deposited to the [fund from the Mineral Bonus Account] account as required
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by [Subsection
59-21-2
(2)] Section
53C-3-202
;
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(b) voluntary contributions;
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(c) monies received by the Constitutional Defense Council from other state agencies; and
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(d) appropriations made by the Legislature.
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(3) Funds in the account shall be nonlapsing.
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[(4) (a) The account shall earn interest.]
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[(b) All interest earned on account monies shall be deposited into the General Fund.]
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[(5)] (4) The account balance may not exceed [$1 million] $2,000,000.
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[(6)] (5) The Legislature may annually appropriate monies from the Constitutional Defense
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Restricted Account to one or more of the following:
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(a) the Constitutional Defense Council to carry out its duties in Section
63C-4-102
[.];
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(b) the Office of the Governor for the purpose of asserting, defending, or litigating state
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and local government rights under R.S. 2477, in accordance with a plan developed and approved
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as provided in Section
63C-4-104
; or
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(c) a county or association of counties to assist counties, consistent with the purposes of
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the council, in pursuing issues affecting the counties.
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Section 4.
Section
63C-4-104
is enacted to read:
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63C-4-104. Plan for R.S. 2477 rights.
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(1) As used in this section, "plan" means a guiding document that:
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(a) is developed jointly by the Utah Association of Counties and the state;
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(b) is approved by the Constitutional Defense Council; and
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(c) presents the broad framework of a proposed working relationship between the state and
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participating counties collectively for the purpose of asserting, defending, or litigating state and
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local government rights under R.S. 2477.
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(2) The Constitutional Defense Council may approve a plan if the plan:
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(a) provides for a good faith, cooperative effort between the state and each participating
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county;
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(b) allows a county to formally agree to participate in the plan by adopting a resolution;
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(c) provides that the state and a participating county are equal partners in determining
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litigation strategy and the expenditure of resources with respect to that county's rights under R.S.
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2477; and
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(d) provides a process for resolving any disagreement between the state and a participating
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county about litigation strategy or resource expenditure that includes the following requirements:
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(i) the governor or the governor's designee and a representative of the Utah Association
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of Counties shall first attempt to resolve the disagreement;
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(ii) if the county and the state continue to disagree, the county, the governor, and the Utah
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Association of Counties shall present their recommendations to the Constitutional Defense Council
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for a final decision about the strategy or expenditure in question; and
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(iii) the county may pursue a strategy or make an expenditure contrary to the final decision
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of the Constitutional Defense Council only if the county does not claim resources provided to fund
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the plan.
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Section 5. Coordination clause.
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(1) If this bill and H.B. 207, Use of Constitutional Defense Council Restricted Account,
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both pass, it is the intent of the Legislature that the amendments in Section
63C-4-103
in this bill
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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
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the Legislature that the amendments in Section
63C-4-103
in this bill supersede the amendments
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to Section
63C-4-103
in S.B. 55.
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