A Utah State Bar memo opposing a bill that would retroactively change the rules for when a judge can grant an injunction was the focus of an at-times fiery debate Friday afternoon, after which lawmakers voted along party lines to advance the joint resolution.
Joint Resolution Amending Rules of Civil Procedure on Injunctions — also known as House Joint Resolution 2 and proposed by Rep. Brady Brammer, R-Pleasant Grove — has drawn the public’s attention because of how it might impact a hold on Utah’s abortion trigger law. Last summer, Planned Parenthood Association of Utah filed a lawsuit against the trigger law. That lawsuit is now “a trigger to this (bill),” Brammer has said.
The Utah State Bar’s memo, sent to its lobbyists and its commission Wednesday, was obtained by The Salt Lake Tribune and published early Friday. The memo doesn’t mention the abortion trigger law, nor the pending case against it. It instead focused on how the joint resolution might impact other cases and courts in the state overall.
The 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 HJR2.
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.
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When offering comment Friday morning, Brammer told The Tribune he had not seen the opposition memo. He then shared his response to the Utah Bar, in which he asked for examples of cases it might impact.
“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 wrote in the email.
Later that afternoon, the bar sent an email to its members about HJR2, noting, “You may have seen some news coverage of this today.”
The email, reviewed by The Tribune, continued, “Rep. Brammer has expressed interest in seeing and hearing examples of injunctions this will affect. Please send examples of injunctions that will need to be revisited or could be undone if HJR2 passes.”
Brammer called the memo a “political stunt” during the Senate Judiciary, Law Enforcement and Criminal Justice Committee meeting on Friday, and accused the bar of leaking it to the media.
The Tribune did not obtain the memo from Utah State Bar, nor from anyone who represents the association. It did, however, receive confirmation of its legitimacy after reaching out to the bar.
The Republican lawmaker also took issue with the mass email following his request to the association, saying, “When you come out against the bill, without talking to me, and then come to the committee and say that it is just talking points, that it’s unfortunate that it was leaked, but then you do that in a mass email to every attorney in the bar, every peer that I have in my profession — I’ve got a problem with that.”
Both Sylvester and one of the Utah State Bar’s commissioners, Mark Morris, spoke during the time allotted for public comment on the joint resolution.
Sylvester told the committee that the bar did not leak the memo to the press, adding, “We did get some communications from the press about it, because others obviously on that email had sent it around, but that was not the intention of the bar to have the press run interference on this discussion.”
She said that the bar’s main concern was the retroactivity clause of the bill and how it might impact litigants and the courts — a concern echoed by Morris.
“The bar’s position has nothing to do with the trigger law and has nothing to do with a particular case,” Morris said. “The bar’s position is simply ... as a policy matter, and because of the increased costs that litigants would face.”
In the memo, the bar wrote that it received complaints from attorneys in multiple practice areas, including estate planning, family law and business litigation. Several attorneys offered public comment during the meeting. While most spoke against the bill, some were in favor.
Even after the bar’s email, Brammer told the committee, he did not receive any examples of cases that would be impacted from fellow attorneys. But one who spoke at the meeting said she has a hunch as to why.
Lisa Petersen, who specializes in employment law, said in her testimony that she has “multiple clients who could be severely affected” by a rule change.
“It seems to me that it would be very bad practice, and violate our rules of ethics for our clients, to be showing people examples of where injunctions could be inviting a motion to reconsider,” Petersen told the committee, adding, “And there’s no clear tracking method in any system I’m aware of in the courts to tell people what injunctions were issued on which grounds.”
Brammer shot back at her comments that sharing such details would be unprofessional conduct during his summation, saying, “The bar apparently did not think so.”
“For the bar to take the position that this will impact justice, that all these people will be impacted, but have not a scintilla of evidence before doing so — that’s irresponsible,” Brammer said. “I expect better from them.”
Although it hasn’t taken an official position on the bill, Utah Courts has also communicated its concerns about its potential effects, and the Salt Lake County District Attorney’s office has repeatedly voiced its opposition.
Of the four committee members present at the meeting, only one — Senate Minority Leader Luz Escamilla, of Salt Lake City — voted against the bill. The chair of the committee, Sen. Todd Weiler, R-Woods Cross, said he was torn on his vote, but that he would vote “yes” and reconsider when it reaches the Senate floor.
“I don’t think the best policy is going to be achieved through trying to pass a bill to impact ongoing litigation,” Weiler said, continuing, “I think I’m willing to make an exception when we’re the litigant, when when it’s our law.”
