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SALT LAKE CITY — The Utah State Bar this week took the unusual step of issuing a memo opposing a joint resolution to retroactively change court rules in an effort to end the hold on Utah's trigger abortion law.
Despite the opposition, a Senate committee advanced the bill to the full chamber, where it needs a two-thirds majority vote to go into effect.
After several attorneys cited concerns that the resolution would remove a key tool that family law practitioners use to protect children in domestic cases, the statewide organization that oversees attorneys released a memo with their own objections to the resolution.
HJR2's sponsor, Rep. Brady Brammer, R-Highland, is a practicing attorney and sitting member of the Utah State Bar.
The resolution would make it easier to overturn the preliminary injunction that is currently blocking Utah's near-absolute abortion ban from going into effect, by retroactively raising the bar for granting such injunctions. It would change Utah's civil court Rule 65A to prevent judges from issuing injunctions if the case presents "serious issues on the merits," instead requiring judges to meet a higher standard and issue them only if there is a "substantial likelihood" that the applicant will win the case.
In a memo to the Bar Commission and Bar lobbyists obtained by KSL.com, Utah State Bar general counsel Nancy Sylvester outlined the organization's opposition to the resolution. Although the Bar regularly takes positions on proposed legislation, this is the first memo issued on a bill or resolution in several years.
"The Bar opposes HJR2 because of its effect on both access to justice and the administration of the judiciary," the memo states. "Access to justice issues take the form of increased costs to litigants in time and money and the cost of relitigation will prohibit some litigants from accessing the courts. The Bar also opposes the proposed changes because relitigation of injunctions will clog already overburdened court dockets."
The memo added that the Bar "disfavors deviations from the Utah Supreme Court's deliberative rulemaking procedures, particularly when such important and far-reaching issues have been raised."
The Bar stated that HJR2 would impact multiple areas of law, and said it has received calls from lawyers in estate planning, family law, business litigation, and others, expressing concern that the resolution would increase costs to firms and businesses.
"Utah is a business-friendly state, yet these proposed changes may cost business litigants access to the courts," the memo states.
The Utah State Bar opposes #HJR2 on the grounds that it will hinder access to justice and adversely affect the administration of the courts. The Bar takes no other position on any other issue that may be driving this bill. #A2J#HJR2
— Utah State Bar (@UtahStateBar) January 27, 2023
Sylvester doesn't take a position on whether Utah's abortion ban should be allowed to go into effect, but sees the retroactivity clause in Brammer's bill as problematic.
"Cases are filed and motions are considered and granted under the laws and rules existing at the time of filing a case or seeking an injunction," she wrote. "This system provides predictability for business in our state and protects the rights of litigants in our courts. Changing rules in the middle of litigation raises serious issues of fairness and constitutionality."
Brammer said he has yet to see evidence of any actual impact of his resolution, without which "the major points of the Bar's opposition — paragraphs 1a, 1b, 1c, 1d and 2a — are moot or mitigated almost entirely," he told KSL.com.
"Thus far, I have requested examples from over 1,000 different attorneys, various law firms and the courts," he continued. "I have yet to receive a single example. Perhaps the Bar could provide some. Without any substantial amount of real-life examples, the hypothetical 'what if' scenarios are nothing but hand-wringing puffery and not proper for legislative consideration."
Brammer said the Bar had yet to provide a "scintilla of evidence" of ongoing cases being impacted.
"That's irresponsible," he said. "I expect better from them."
He asked the Bar to provide a copy of any order that would be impacted by HJR2, and asked the Bar to clarify the "policy reasons" that the Bar says support the inclusion of the "serious issues" language in Rule 65A.
Finally, Brammer asked the Bar to explain what it means when it says it "disfavors deviations from the Utah Supreme Court's deliberative rulemaking procedures," pointing out that the Utah Constitution gives the Legislature the power to amend court rules by a two-thirds majority vote in both chambers.
"Does the Bar now take the position that it disfavors the use of this constitutional language by the Legislature?" he asked. "I would be happy to come and discuss these issues with the Bar."
Sylvester said that assumption isn't correct, saying the Bar just wanted more time to discuss the potential changes.
"We uphold the Constitution," she told a Senate committee on Friday. "We honor the Legislature's prerogative to do this, our concern was just having more time to have a discussion about the policy matters around this."
UtahBar-Memo to Commission Re HJR2 by KSLcom on Scribd
During committee discussion on the resolution on Friday, Sen. Todd Weiler, R-Woods Cross, said he's upset that the courts have paused the abortion ban.
"I campaigned for office as a pro-life Republican," he said. "As a politician, I'm annoyed. I'm kind of mad that the Supreme Court overruled Roe v. Wade and that we're still allowing abortions in Utah."
"I've heard other people say that this will undo every domestic relations order and domestic relations injunctions in family law cases," he continues. "I'm a family law attorney, I don't believe that. I don't think that's a credible argument."
In front of the committee, Brammer again criticized the Utah State Bar for its stance against HJR2, calling its opposition a "haphazard position." He said his resolution has been public for nearly a month, giving the Bar ample opportunity to discuss its concerns with him.
"Frankly, the way that the Bar came out against this, it appears that they didn't do their homework on it, and that's frustrating to me," he said.
Still, Weiler asked Brammer about the potential that HJR2 would impact the trigger abortion ban.
"We already have been and we will continue to be criticized by the media ... but we're also going to be likely criticized by our colleagues on the bench," Weiler said. "And out of the two, I'm probably more concerned about that. So if you're asking me ... and the Legislature to take that hit, tell me what impact you think this will have on our current trigger law litigation."
"In all likelihood, likely none," Brammer said, adding that he doesn't think the Utah Attorney General's Office "would be wise to upset" a currently pending appeal to ask the courts to reconsider the hold on the trigger ban while the court case plays out.
Weiler said while he ultimately voted to send the resolution to the floor, as a lawyer, he remains "torn on this."
"I'm going to keep on listening and thinking about this because I'll get a chance to vote on it two more times on the Senate floor," he said.
HJR2 passed out of the House on Monday and received approval from the Senate Judiciary Committee on Friday.
It will go into effect immediately if it receives supermajority support in the Senate and is not subject to a gubernatorial veto.
