February 8, 2023

Sent via E-mail

Members of the Utah Senate
See attached for full name
and email list

Re: The Joint Resolution Amending Rules of Civil Procedure on Injunctions

Senate Members:

Utah State Representative Brad Brammer (a civil litigation attorney) proposed a bill, the
Joint Resolution Amending Rules of Civil Procedure on Injections (“HJR2”), to amend URCP
65A (the “Rule”), which allows for the issuance of temporary restraining orders (TROs) and
preliminary injunctions. One of Brammer’s proposed amendments removes a specific clause
allowing judges to issue orders if the case presents “serious issues on the merits which should be
the subject of further litigation.” In removing the “serious issues” statement, applicants would
then be forced to prove they will be successful at trial.

What Brammer fails to reference is the Due Process Clause as provided through the
Fourteenth Amendment.1 The Due Process Clause affords citizens of the United States
protection from state and federal governments from depriving a citizen of life, liberty, or
property without due process of law.

Consequently, the amendment of HJR2 would infringe on the unalienable rights to life
and liberty. Having to initially prove a person’s possible success in a case incurs undue stress to
an already stressful situation. In many cases, it can be nearly impossible to determine who will
prevail in Court on the outside. Ensuring the due process of law allows for a full understanding
of a case.

The Rule has afforded many individuals emergency protection where irreparable harm to
a person or persons is imminent. The Utah Court website defines irreparable harm as "harm that
cannot be undone."2 Moreover, the Rule allows the preservation of a status quo before a final
judgment is entered in litigation cases. Most notably, the Rule was used to grant Planned
Parenthood Association of Utah’s (the “PPAU”) request for a preliminary injunction on the
enactment of SB0174, also known as the Criminal Abortion Act (the “Act”), after Roe v. Wade
was overturned.

1
Amdt14.S1.3 Due Process Generally.
2
Application for Temporary Restraining Order
 This preliminary injunction, decided by Judge Andrew Stone, cites that the case “raises
novel and complicated issues, and that Plaintiff may prevail on one or more of its claims.”3 Judge
Stone makes reference and affirms PPAU’s allegations of infringement and harm based on
Utah’s Equal Rights Amendment, uniform operations of law, right to bodily integrity, right to
determine one’s own family composition, right of conscience, and right to privacy. With these
allegations, Judge Stone ordered a preliminary injunction as PPAU, its patients, and its staff
would “suffer irreparable harm” and that how the Act would “further its legislative goals.”

In Judge Stone’s ruling, he notes that this preliminary injunction would not prevent the
enforcement of Utah Code §§ 76-7-302.5 (the “Code”).4 The Code states that an abortion after
18 weeks gestation cannot be performed unless authorized under Utah Code §§ 76-7-302(3)(b).5
The preliminary injunction merely restricts the Act from being enforced while the Order is in
effect. This allows pregnant persons to receive an abortion up to 18 weeks gestation.

While this is just one example, it is not the only example. Brammer has asked for proof
of this rule being used by attorney’s, this would go against the American Bar Association’s (the
“ABA”)6 and Utah’s Rules of Professional Conduct.7 The rules state that a client has to give
informed consent. In many family law cases, identity protection is the most valuable asset one
can have. Seeing as Brammer is an attorney, attorney-client privilege should not be a new
concept or one to be taken lightly.

When asked if family law cases would be affected by this, Brammer was vehement that
they would not be. Brammer was quick to point out that a clause already existed in the rule
regarding family law cases. The clause states, “Nothing in this rule shall be construed to limit the
equitable powers of the courts in domestic relations cases.”8 While true, TROs aren't only
available in family law. As a civil litigator himself, he shouldn't be surprised by this.

Many people seeking a TROs do so because they are in imminent danger and need
emergency protection. TROs allows protection from having property destroyed, ability for a
tenant to enter their apartment if illegally locked out by their landlord, awarding temporary
physical custody of a minor, and more. .

Brammer also proposes the addition of a Motion to Reconsider clause. This clause would
allow the party restrained by the TRO or the preliminary injunction to have the case reviewed.9
Should all proposed amendments to Rule 65A go into effect, the Courts would need to determine

3
Document: Order Granting Plaintiff's Motion for a Preliminary Injunction
4
Utah Code Section 76-7-302.5.
5
Utah Code Section 76-7-302
6
Rule 1.6: Confidentiality of Information
7
UCJA Rule 13-1.06 (Code of Judicial Administration) - Utah Courts
8
URCP Rule 65A (Rules of Civil Procedure) - Utah Courts
9
HJR002S01 compared with HJR002
if the TRO and/or preliminary injunction adheres to the guidelines. These guidelines would not
include the “serious issues” requirement, thus reversing the original order.

The fiscal note, provided by Lead Analyst Gary R. Syphus, outlines that it would cost the
Courts $6,500 for every 10 applicable case reviews.10 The note also states that the amount of
applicable cases is unknown. These fees would be taken from the General Fund in the Fiscal
Year of 2024. Moreover, the Office of the Attorney General could end up having to pay more
litigation fees in preparation of the 2024 Fiscal Year hearings. Again, the total number for either
situation is unknown.

For perspective, if 10 cases costs $6,500 in Court fees, then 100 cases would incur
$65,000 in fees (6500 x 10 groups of 10 cases = $65,000). 1,000 cases would incur $6.5 million
in fees (6500 x 100 groups of 10 cases = $6,500,000). With an unknown number of cases, the
fees can and will pile up.

Many have spoken out in opposition to this amendment, but a notable voice was the Utah
State Bar, the entity in charge of admitting attorneys to practice in the state of Utah (the “Bar”).11
The Bar, as allowed by Rule 14-106 of the Rules of Integration and Management, can participate
in legislative activities. As such, the Bar prepared a Memo in opposition to HJR2. In the Memo,
the Bar outlines how the amendments affect the access to justice and the administration of the
Courts. In part, the passage of the amendment would increase costs, undo litigants vested rights,
allow mid-litigation rule changes, further clog court dockets, and remove judicial discretion. The
Bar opposing HJR2 should speak volumes.

It is clear Representative Brammer is proposing this bill in retaliation to the order on the
Act, and in doing so infringes on civil rights and trial rights. Instead of allowing the Courts to try
the case, Brammer has decided to be the judge, jury, and executioner of PPAU’s case and many
other cases. Allowing this amendment to pass would not only tip the balances of government
powers to the Legislature, but it hinders the Due Process Clause. The checks and balances of the
government were enacted for a reason: to not let any one branch hold all the power.

As a citizen of Utah, I beseech that each one of the elected officials of the Utah Senate
take into consideration the effects this amendment would have on the branches of government
and the citizens. Vote “No” on HJR2 and allow the judicial system to work and do its job.

10
Fiscal Note HJR002S01
11
UtahBar-Memo To Commission Re HJR2
Thank you for your time and consideration into this matter.

Cheers,

Courtney Hanson-Miller
Utah Resident
 Senate Members

District Member Email

7 Stuart Adams jsadams@le.utah.gov
22 Jacob Anderegg janderegg@le.utah.gov
13 Nate Blouin nblouin@le.utah.gov
24 Curtis Bramble curt@cbramble.com
4 David Buxton gbuxton@le.utah.gov
19 Kirk Cullimore kcullimore@le.utah.gov
10 Luz Escamilla lescamilla@le.utah.gov
17 Lincoln Fillmore lfillmore@le.utah.gov
23 Keith Grover keithgrover@le.utah.gov
16 Wayne Harper wharper@le.utah.gov
26 David Hinkins dhinkins@le.utah.gov
29 Don Ipson dipson@le.utah.gov
3 John Johnson john@johnforutah.com
21 Michael Kennedy mkennedy@le.utah.gov
12 Karen Kwan kkwan@le.utah.gov
18 Daniel McCay dmccay@le.utah.gov
25 Michael McKell mmckell@le.utah.gov
5 Ann Milner amillner@le.utah.gov
28 Derrin Owens derrinowens@le.utah.gov
14 Stephanie Pitcher spitcher@le.utah.gov
9 Jen Plumb jplumb@le.utah.gov
15 Kathleen Riebe kriebe@le.utah.gov
1 Scott Sandall ssandall@le.utah.gov
6 Jerry Stevenson jwstevenson@le.utah.gov
11 Daniel Thatcher dthatcher@le.utah.gov
28 Evan Vickers evickers@le.utah.gov
8 Todd Weiler tweiler@le.utah.gov
2 Chris Wilson cwilson@le.utah.gov
20 Ronald Winterton rwinterton@le.utah.gov