Lawmaker proposes making it harder for courts to halt potentially unconstitutional laws

SALT LAKE CITY — Amid ongoing tensions between Utah's legislative and judicial branches, one Republican state senator is proposing to raise the bar against courts granting preliminary injunctions concerning state laws — an under-the-radar change that could have significant impacts on how state laws are implemented.

Sen. Brady Brammer, R-Highland, presented his bill to a Senate committee Wednesday, arguing that the courts have been too quick to pause new laws that are challenged for their constitutionality, leading to long delays in their implementation while various courts consider the arguments.

Lawmakers have been at odds with the judicial branch since last summer, when the Utah Supreme Court ruled they overstepped by changing a 2018 initiative on redistricting. The high court also allowed a pause on the state's near-total abortion law to remain in place — a pause that Brammer has previously sought to undo through legislation.

"We do have some concern with the levity with which the courts appear to be restraining laws at the outset of cases so that they're not in effect until it gets to the Supreme Court," Brammer told members of the Senate Judiciary, Law Enforcement and Criminal Justice Committee Wednesday. "I do have some concerns about that, and this creates a process ... in order to protect the law which has been duly passed by the representatives of the citizens so that it can go into effect as intended by the Legislature and the governor."

Injunctive relief can only be issued if there is "substantial likelihood" that the plaintiff will win the case on its merits, that the plaintiff would "suffer irreparable harm," that the harm to the plaintiff outweighs the harm of the injunction and if the injunction "would not be adverse to the public interest," per Rule 65A of the Utah Rules of Civil Procedure.

Preliminary injunctions are often granted by district court judges and remain in place while a case is appealed to the appellate or Supreme Court level. Brammer's bill, SB204, allows the state attorney general to appeal injunctions based on claims of unconstitutionality directly to the Supreme Court and suspends any injunctions until the high court has issued its ruling.

"What that does is it says, 'Hey, you know, the law should not be set aside quite so easily,'" Brammer said. "If you're going to make a decision on constitutionality, then ... let's get it to the end, because we can't just run out the clock at the beginning without some really good reasons while the law does not go into effect."

State Bar expresses opposition

Not everyone is pleased with the bill. The Utah State Bar — which oversees attorney licenses in the state — expressed opposition Wednesday, arguing it could disrupt the balance of powers between the two branches of government.

"This raises some interesting and serious issues regarding the checks and balances within our constitutional form of government," said David Connors, who spoke on behalf of the Bar. He said parties can already ask the judge to revisit injunctions, and the bill could prevent courts from protecting Utahns if a law violates their rights.

Elizabeth Wright, the Utah State Bar's executive director, agreed.

"We don't think it's necessary to heighten the standard and to also essentially prohibit a judge from granting an injunction if it is a constitutional issue involving the case," she told KSL.com Thursday. "In fact, those are the types of cases often — not always, but often — when an injunction is very important. An injunction is actually a very conservative theory: Let's keep the status quo. Let's not let the building be torn down ... or the train tracks be laid or whatever the government is wanting to do until we can litigate the issues."

Wright said the bill would also increase the amount of litigation that gets sent to the Supreme Court, often before the lower courts have established the facts and evidence of the case. In effect, she said, this could further gum up the works of a legal system lawmakers have criticized as too sluggish.

"It's going to result in clogging up the Supreme Court and the appellate courts who don't need to hear these cases," she said. "A lot of time the district court can handle it until the Supreme Court can hear it."

'They got to work harder'

Top Senate Republicans were not shy in airing their displeasure with the courts when asked about Brammer's bill Friday, saying the court needs to ack more quickly. When pressed on the "irreparable harms" that could be done to Utahns if potentially unconstitutional laws go into effect, they appeared more concerned with increasing the efficiency of the Supreme Court.

"They got to work harder," said Senate Majority Leader Kirk Cullimore, R-Sandy. "(The Utah Supreme Court) only issued like 24 opinions in the last year. So, you know, may not be the worst thing."

"We compared decisions being kicked out by our Supreme Court versus other states, and it's not a joke; they need to work harder," added Sen. Mike McKell, R-Spanish Fork. "We need to get decisions out quicker in this state. It is legitimately a problem. It's a concern for me as a practicing attorney; I think it's a concern for the state."

Senate Minority Leader Luz Escamilla, D-Salt Lake City, voted against the bill and said, "We better have the resources ready" to accommodate the increased caseload that could result if it passes. It's a concern brought up regularly by Utah Supreme Court Chief Justice Matthew Durrant, who has asked lawmakers for additional court resources in his annual address for each of the past several years.

SB204 awaits consideration on the Senate floor, before advancing to the House of Representatives if it passes.

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