Let’s talk about legislative overreach.
In grade school, we all learned about the three branches of government and how each has the ability to examine what the other branches do to prevent abuses of power. We believe that if one branch has too much power, our rights as citizens may be taken away.
Utah House Joint Resolution 2 (HJR 2) represents the effort of one branch, the Legislature, to try to take power away from another branch, the judicial branch, whose role is to ensure the Legislature does not pass laws that violate the rights of Utah citizens.
You have likely heard that HJR 2 could interfere with the injunction preventing Utah’s abortion law from going into effect. This is happening in a highly conservative state, and we’re not here to argue about that. What the proponents of HJR 2 forget, though, is that how the government does things matters just as much for its legitimacy as what it is doing.
What HJR 2 does and does not do:
First, HJR 2 does not remove the injunction. It does allow the Utah Attorney General’s Office to relitigate the question of whether an injunction should apply in light of a stricter standard. The current halt on Utah’s abortion trigger ban may very well survive this attack. As taxpayers, we’ll be paying for that additional litigation.
Second, HJR 2 prolongs (and likely significantly so) the underlying abortion ban case which is still in the district court. The state’s appeal of the injunction staying the enforcement of the trigger ban until resolution of the actual case is already before the Utah Supreme Court. If HJR 2 passes, it could very well call into question whether the Utah Supreme Court should have granted the appeal surrounding the injunction itself. This means the real issues of the actual case and of the constitutionality of the trigger ban remain undecided for even longer.
Third, HJR 2 will impact not only the abortion case (which is actually the legislative intent), but also untold numbers of past and current cases with temporary restraining orders and injunctions. It would make it harder for Utahns to protect their rights and prevent permanent harm in emergencies — from cases involving family law to contracts and commercial law to private property and eminent domain disputes.
In addition, the fiscal impact statement for HJR 2 asserts that every 10 cases affected will cost the state $6,500. The truth, as stated by legislative analysts, is that they do not know how many cases will be impacted. Plus, there is no time to get this data because of how quickly the bill is being pushed through the Legislature. This will waste precious judicial resources while creating procedural chaos — hardly seems like something a fiscally-conservative legislature should support.
HJR 2 does not fix something that is broken in our government. Utah’s rule for injunctions has been in place for decades, and it is similar to the rule used in numerous other states. Supporters of HJR 2 point to injunction rules used in federal courts, which make it harder for litigants to block unconstitutional laws. But why should we let the federal government dictate what protections Utahns have against government overreach?
Staci Visser
Staci Visser is a Utah appellate and trial attorney.
This essay is supported by these Utah attorneys: Emily Adams, Jensie Anderson, James C. Bradshaw, David W. Brown, Mike Brown, Tawni Bugden, Aric Cramer, Mary Corporon, Jessica Couser, Ralph Dellapiana, Josh Esplin, Elizabeth Ferguson, David Ferguson, Sam Goble, Danielle Hawkes, Deborah Hill, Shawn Howell, Sean Hullinger, Tara Isaacson, Andrea Martinez, Monica Maio, Matthew G. Morrison, Jonathon Nish, Herm Olsen, Darwin Overson, Tamara Rasch, Martin Stolz, Courtney Whittier, Kristin G. Wilson and Rachel Whipple.