Utah Bar takes stand against legislation written by one of its own members

The Utah State Bar opposes a Republican bill to retroactively change court rules and overturn a hold on Utah’s abortion ban.

(Trent Nelson | The Salt Lake Tribune) People gather at the State Capitol in Salt Lake City to protest after the U.S. Supreme Court overruled Roe v. Wade, on Friday, June 24, 2022.

The organization that governs Utah attorneys has taken a stance against a joint resolution making its way through the Legislature that would retroactively change court rules to effectively end a block on abortion in the state, according to a memo obtained by The Salt Lake Tribune.

The Utah State Bar regularly takes positions on legislation, but it’s uncommon for it to draw up and distribute such memos on its opposition, as it has with Rep. Brady Brammer’s Joint Resolution Amending Rules of Civil Procedure on Injunctions, also known as House Joint Resolution 2.

According to the general counsel for the bar, Nancy Sylvester, this is the first time it has put out such a memo since it objected to the Tax Equalization and Reduction Act in 2019 — a bill that ultimately failed. The bar’s stances on other bills this session will be made public on its website at the end of the session, Sylvester said, adding that it will reveal those positions to anyone who asks.

Utah’s is a mandatory bar, meaning all lawyers practicing in Utah — including Brammer — are members.

Abortion providers in Utah have been allowed to continue operating because 3rd District Judge Andrew Stone granted Planned Parenthood Association of Utah’s request for a preliminary injunction in its case challenging the state’s abortion trigger law, which has been in place since the U.S. Supreme Court overturned Roe v. Wade last summer.

In Stone’s order temporarily blocking the trigger law, he wrote that Planned Parenthood “has demonstrated that there are at least serious issues on the merits that should be the subject of further litigation.”

If passed, Brammer’s law would make it so judges cannot use that basis to grant such a preliminary injunction. It would also allow parties — such as the Utah attorney general’s office, which is representing the state in the trigger law case — to request a judge to reconsider under the resolution whether an injunction should remain in effect.

In the document sent out to its lobbyists and commission Wednesday, the Utah State Bar doesn’t mention the abortion trigger law, nor that the pending case against it was the impetus for the bill. It instead focuses on how the joint resolution might impact other cases and courts in the state overall.

“The Bar opposes HJR2 because of its effect on both access to justice and the administration of the judiciary,” the memo reads. “Access to justice issues take the form of increased costs to litigants in time and money and the cost of re-litigation will prohibit some litigants from accessing the courts. The Bar also opposes the proposed changes because re-litigation of injunctions will clog already overburdened court dockets.”

The bar also noted in its memo that the legislation “raises constitutional separation powers concerns.” Under the joint resolution, if a litigant asks the court to reconsider an injunction the judge must do so, effectively “removing judicial discretion,” according to the memo.

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Changing these rules should be left to the courts, the bar wrote. The Utah Supreme Court has its own process for making changes to procedural rules.

That process includes a 45-day comment period after the rule has been distributed to various stakeholders, including the Legislature’s general counsel and every member of the Utah Bar.

Brammer, R-Pleasant Grove, who has previously referred to the joint resolution as “an attorney bill set up for a good attorney fight,” shared his response to the bar with The Tribune on Friday morning. He requested the bar provide a copy of any court order his joint resolution would impact.

“Thus far I have requested examples from over 1000 different attorneys, various law firms, and the courts,” he wrote in the email. “I have yet to receive a single example. Perhaps the bar could provide some.”

He continued, “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.”

In defending his joint resolution, Brammer also pointed to Article VIII of the Utah Constitution, which says, “The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature.”

Although Utah Courts is allowed to take positions on legislation through its Judicial Council, it has not done so. An assistant administrator for the courts, however, relayed concerns that the resolution’s retroactivity clause could result in judges having to revisit previously decided issues.

“This affects judicial resources, it affects fairness of process, and these things are of deep concern to the courts,” Assistant Administrator Michael Drechsel said.

Sylvester told The Tribune that it decided to take a position on the legislation because of the high volume of calls the bar was receiving from its members.

“If we get a lot of calls from lawyers expressing concern, we’ll put together talking points about why we’re concerned about it,” Sylvester said.

In the memo, the bar wrote that it received complaints from attorneys in multiple practice areas, including estate planning, family law and business litigation. Among them, it said, were “large firms who represent business clients.”

“Utah is a business-friendly state, yet these proposed changes may cost business litigants access to the courts,” the memo reads.

Brammer, pointing to a portion of his proposal that says “Nothing in this rule shall be construed to limit the equitable powers of the courts in domestic relations cases,” has previously argued that the joint resolution would not impact family law and that it would only influence “a small portion” of cases in other areas of law.

On Tuesday, Salt Lake County District Attorney Sim Gill tweeted a link to a Tribune news story about the joint resolution, and wrote, “The Utah Way: Expression of unchecked power. Checks & Balances in name only. Individual liberty a sham. Rule of law as concept not practice. No price too high for the win. Retroactive: a lazy thuggish way to win an argument not by reason but by force.”

In advocating for his bill during a committee meeting and floor time, Brammer has said the joint resolution would keep Utah’s courts from enjoining “controversial” laws soon after they are passed by the Legislature.

“Injunctions are an extraordinary and drastic remedy and should not be granted lightly,” Brammer said while presenting his legislation on the House floor. He continued, saying, “On the long-term issue of this, as far as it relates to the Legislature, one of the concerns is will our laws take effect?”

The joint resolution has so far faced limited opposition from Republicans, passing out of the Utah House along party lines. It is listed among the bills that may be discussed and voted upon in a Senate Judiciary, Law Enforcement and Criminal Justice Committee meeting Friday.

Under the Utah Constitution, amending court rules requires the approval of two-thirds of both legislative bodies, and does not require the governor’s signature.

Update, Jan. 27, 11:50 a.m. • This story now includes a comment from Rep. Brady Brammer about the Utah State Bar’s memo.

Clarification • This story has been updated to include a clarification on how often the Utah State Bar takes positions on legislation.