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M E M O R A N D U M

TO: The Bar Commission and Bar Lobbyists

FROM: Nancy Sylvester, General Counsel

RE: HJR002

DATE: January 25, 2023

The memorandum below both summarizes the Utah State Bar’s ability to oppose
legislation and explains why it now opposes HJR2.

The Utah State Bar’s Legislative Activities

Pursuant to Rule 14-106 of the Rules of Integration and Management, the Utah
State Bar may engage in legislative activities. In relevant part, the rule states,

The Board is authorized to review and analyze pending legislation, to provide

technical assistance to the Utah Legislature, the Governor of Utah, the Utah
Judicial Council and other public bodies upon request, and to adopt a position
in support of or in opposition to a policy initiative, to adopt no position on a
policy initiative, or to remain silent on a policy initiative…..The Board's
consideration of public policy issues shall be limited to those issues concerning
the courts of Utah, procedure and evidence in the courts, the administration of
justice, the practice of law, and matters of substantive law on which the
collective expertise of lawyers has special relevance and/or which may affect
an individual's ability to access legal services or the legal system.

Utah R. Jud. Admin. 14-106(a)(1) (emphasis added).

The Utah State Bar is a mandatory, or integrated bar, meaning only those
admitted to the Utah State Bar may practice law in Utah. The Utah Supreme Court, “by
its constitutional power—[has] authorize[d] and designate[d] the Bar to administer
rules and regulations that govern the practice of law in Utah….“ Utah R. Jud. Admin.

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14-102(a)(1). In so doing, “the Supreme Court recognize[d] a compelling state interest in
using the Bar to assist the Court in governing admission to the practice of law and
improving the quality of legal services in the state.” Utah R. Jud. Admin. 14-102(a)(2).
Because the Utah Supreme Court chose the integrated bar model to assist it in its
constitutional prerogative to regulate the practice of law, Keller thus applies.

Keller v. State Bar of California, 496 U.S. 1, 3-15 (1990), is the seminal case guiding
the types of political speech in which mandatory bars may engage. In Keller, the Court
held that an integrated bar can, consistent with the First Amendment, use a member’s
compulsory fees to fund activities germane to “regulating the legal profession and
improving the quality of legal services.” A mandatory bar may not fund “activities
having political or ideological coloration which are not reasonably related to the
advancement of such goals.”
Rule 14-106 authorizes the Bar to engage in legislative activities that are
consistent with Keller’s (and its progenies’) germaneness standard. The Utah State Bar
has developed extensive policies in furtherance of that authorization. The Utah State
Bar never takes positions with “political or ideological coloration which are not
reasonably related to the advancement of” the twin goals of 1) improving the quality of
legal services and 2) regulating the legal profession. Indeed, its position-taking
consistently and principally tracks the following subject matters:

a. The Judiciary.
(1) Appointment of judges.
(2) Judicial compensation.
(3) Judicial oversight and qualification.
(4) Legislative requests to add judges to districts or specific functions.
(5) Independence of the judiciary.
b. The Courts.
(1) Issues involving the organization or re-organization of the courts of this
state.
(2) Issues involving resources for the courts.
(3) Issues affecting the administration of justice.

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 c. Access.
(1) Issues affecting an individual’s right to seek legal or judicial redress.
d. Practice of Law.
(1) Issues involving the qualifications of those authorized to provide legal
services in the State and the public’s access to legal services.
(2) Issues involving the regulation of the legal profession, including the
education, the ethics, the competency, and the integrity of the profession.

When legislation implicates the above subject matters, the Bar takes positions in
support or opposition. Thus, because HJR2 has the potential to negatively impact both
access to justice and the administration of the judiciary, the Bar has ample authority to
oppose it.
The Bar’s Opposition to HJR2

The Bar opposes HJR2 on the grounds that it will hinder access to justice and
adversely affect the administration of the courts. 1 HJR2, which is now in its first
substitute, seeks to amend Civil Rule 65A by removing as a ground for preliminary
injunction the following: "the case presents serious issues on the merits which should be
the subject of further litigation." It also adds a motion for reconsideration that has
retroactive effect. In so adding, it removes a judge’s discretion to both 1) decide in the
first instance to hear the motion for reconsideration (a procedural tool that is currently
disfavored), and 2) in the second instance, it tells a judge how to decide the motion (“If
the court determines that the issuance of the restraining order or preliminary injunction
does not meet the requirements of paragraph (e), the court must terminate the order or
injunction.").

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HJR2, 1st substitute, added the following retroactive provision: "(f) Motion for reconsideration. (f) (1) If a court
granted a written restraining order or preliminary injunction on the explicit ground that the case presented serious
issues on the merits which should be the subject of further litigation, a party restrained by the order or injunction on
the effective date of this resolution may move the court to reconsider whether the order or injunction should remain
in effect. (f) (2) A motion for reconsideration under this paragraph (f) may be filed at any time before the final
determination of the case. (f) (3) Upon a motion for reconsideration, the court must determine whether the issuance
of the restraining order or preliminary injunction meets the requirements in paragraph (e) regardless of the
requirements for the issuance of the order or injunction on the day on which the order or injunction was issued. (f)
(4) If the court determines that the issuance of the restraining order or preliminary injunction does not meet the
requirements of paragraph (e), the court must terminate the order or injunction."
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1. Access to Justice.
a. Cost. The motion for reconsideration provision means relitigation.
Litigation is already expensive. Relitigation of an injunction means it will get more
expensive. Litigants with vast resources will be best positioned to take advantage of this
new law. Numerous individual litigants and businesses have already spent time and
money to litigate injunctions that are in place, including money spent to enforce existing
injunctions. These proposed changes will require the double expenditure of time and
resources to re-litigate the injunctions.
b. Vested rights. Injunctions currently in place have given certain litigants
vested rights that would be undone by this legislation. This raises constitutional
separation of powers concerns. See In re Handley’s Estate, 49 P. 829, 830-832 (Utah 1897)
(holding “that the legislature lacked the power to ‘attempt[] by a retrospective act to
furnish a method by which vested rights could be divested, and to compel the courts
to employ it.’”).
c. Affects multiple practice areas, including business. The Bar has received
calls from lawyers in multiple practice areas (estate planning, family law, business
litigation, etc.) and from law firms of all different sizes expressing concern that their
clients will have to spend additional money to revisit existing injunctions. This includes
calls from large firms who represent business clients. Utah is a business-friendly state,
yet these proposed changes may cost business litigants access to the courts.
d. Mid-litigation rule changes. Our system of laws disfavor changing the
rules in the middle of litigation. 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.
State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829; Brown v. Williams, 2017 UT App 29, ¶ 6 n.4,
392 P.3d 919. 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.

2. Administration of the Courts.

a. Clogged court dockets. Litigants who would become “entitled” to file
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motions for reconsideration under HJR2 will clog court dockets in order to relitigate
existing injunctions. The courts are already dealing with a backlog of cases from COVID
shutdowns. This will add to dockets and slow the legal process down for all litigants,
whether they are subject to injunctions or not.

b. Removing judicial discretion. The proposed changes would require a

judge to rehear these matters even if the underlying injunction does not warrant
reexamination. A judge has no discretion to say the matter does not need to be
relitigated. Motions for reconsideration are disfavored by courts because they
negatively impact the fair and efficient administration of justice. See Tschaggeny v.
Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615 ("Because trial courts are under no
obligation to consider motions for reconsideration, any decision to address or not to
address the merits of such a motion is highly discretionary.")

c. No deliberative rulemaking process. A change to Utah’s injunction

standard should be made only after input from all stakeholders. Utah’s injunction
standard has a “serious issues” element that does not exist in the federal standard. The
element was put there for policy reasons that may warrant reexamination. But before
eliminating the standard, lawyers, judges, businesses, and other stakeholders should be
involved in a deliberative discussion about why the standard exists in the first place
and the ramifications of its removal. The Supreme Court’s rulemaking procedures are
well suited to this task. See Utah R. Jud. Admin. 11-101 to 11-106.

The Bar’s Opposition in Sum

The Bar opposes HJR2 because of its effect on both access to justice and the
administration of the judiciary. 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. And the Bar
disfavors deviations from the Utah Supreme Court’s deliberative rulemaking
procedures, particularly when such important and far-reaching issues have been raised.
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