A resolution aimed at making it easier to overturn the hold on Utah's trigger abortion ban could have broad consequences, and legal experts say it would rob attorneys of a key tool used to protect children in domestic relations cases.
That's not what resolution sponsor Rep. Brady Brammer, R-Highland, said during discussion on the House floor on Monday. When asked if HJR2 would have any impact on family law cases, Brammer gave an emphatic "no."
"There have been these statements that this applies to all of the family laws that could exist in the world," he said. "Lines 119 to 120 (of the resolution) specifically say nothing in this rule is construed to limit the equitable powers of the courts and domestic relations cases. This does not apply to family law."
While the resolution does retain language in the rule about domestic relations cases — also known as a "catch-all provision" — it strikes one of the key provisions family law attorneys use to protect children in domestic relations and custody cases.
"I would say that's wrong," said family law attorney Dani Hawkes, when asked about Brammer's characterization of the resolution on the House floor. "I would say this will have a major impact on family law cases and that catch-all provision at the bottom of the rule has been there (for years), and it doesn't help with this rule."
Brammer said he spoke to the courts and “numerous family law attorneys,” and he has yet to hear of a court order that would be impacted by his resolution.
“Not a single order has been provided,” he told KSL.com in an email. “In fact, the family law firm that I contacted is the largest family law firm in the state to my knowledge and they said they have never made an application, let alone received a ruling, under this rule.”
HJR2 — which passed out of the House on Monday — would change Utah's civil court Rule 65A to raise the bar for judges to issue preliminary injunctions. Rather than allowing judges to issue such orders if the case presents "serious issues on the merits," it would require they use a higher standard and issue them only if there is a "substantial likelihood" that the applicant will prevail on the merits of the underlying claim.
The resolution is seen to be targeting the hold placed on Utah's abortion ban, which a judge issued using the "serious issues" reasoning. But family law attorneys say the "serious issues" clause is often used in domestic cases, where winners and losers are not always so clear.
"Domestic issues such as custody and parent-time are not standard issues where a party can clearly 'prevail,'" family law practitioner Brent Hall said in an email to KSL.com. "Under Utah case law, a court must consider the best interests of the children, which often removes our cases from a standard determination of winning or losing."
By striking the "serious issues" provision, HJR2 could have the seemingly unintended consequence of slowing down requests filed to protect children in these often complex and contentious cases.
"To be clear, I am not sure whether this will impact our cases," Hall said. "It will depend on each court's interpretation of the change. Our concern is that the change may affect our practice."
Hawkes was more confident that the resolution would have unforeseen consequences. The "catch-all" clause in Rule 65A refers to the family law Rules 100 to 108, she said, not requests filed for emergency relief, which still need to go through 65A and would lack teeth without the "serious issues" standard.
Rather than being able to apply for an emergency hearing, family attorneys would need to wait as long as six or eight weeks to seek temporary restraining orders or preliminary injunctions. Although the cases in question don't include domestic abuse cases — which are governed by a separate rule about protective orders — they can still pose a threat to children in potentially dangerous situations.
Attorneys told KSL.com such cases can include custody fights involving a parent who is suffering from a severe mental health crisis, drug or alcohol abuse, or anything else that could put children at risk and would warrant temporary removal from custody. In one recent case, attorneys filed for a temporary restraining order to keep a parent — who was a foreign national — from fleeing the country with their child in tow in the midst of a custody battle.
"There's not an emergency rule in Rule 100; we have to use Rule 65A," Hawkes said. "So if they make Rule 65A harder for civil cases, they're making it harder for our cases as well. ... I talked to many other family law attorneys about this, and they just think that the information being spread up on the Hill is not correct."
Although Hawkes said she works on only a handful of these cases a year, she estimates that hundreds of such cases will be impacted across the state each year if the resolution passes.
"When we make it harder for a family to use this rule, we're absolutely putting that family in harm's way, and we don't know what that's going to look like at the end of the day," Hawkes said. "I would definitely say making this rule harder to use puts our children in harm's way. ... Why would they make it harder for us to protect a family? It's because they only care about one case."
If lawmakers do want to change the temporary ruling on the abortion trigger law, Hawkes said the normal process would be to amend the law to make it more palatable to the courts, rather than trying to change court rules. A spokesman for Planned Parenthood said "it's a little bit like running and hiding with the ball."
As currently amended, HJR2 would create a motion for reconsideration on injunctions or restraining orders that were granted on the basis of the "serious issues" provision. But Hall pointed out that the Utah Supreme Court — which has constitutionally granted powers to set court rules — has repeatedly ruled that motions for reconsideration are not recognized in Utah courts.
And while the Legislature can change court rules by a two-thirds majority vote, adding a motion to reconsider would "make things murky," he said, because it could be up to the Supreme Court to determine what the rule means, potentially paving the way for even more litigation.
"It would be up to the Utah Supreme Court to decide, eventually," Hall said. "They generally follow their own precedent, but we don't know for sure until the issue works its way through the courts."
Having passed the House with the necessary votes, HJR2 now heads to the Senate. If two-thirds of all Senators approve it, it would go into effect immediately. Joint resolutions do not need to be signed by the governor and cannot be overturned by veto.
Senate President Stuart Adams, R-Layton, on Tuesday said the resolution could come to the Senate floor sometime next week, or the week after, but the Senate majority caucus hasn't taken a position on the resolution.
"My response is I have confidence in our committee. ... I hope they come in and give good public comment," he said. "We've got, I think, a really good chair and good members on that committee, and I think they will be responsive; and if that's the case, they'll probably act accordingly."
Senate Minority Leader Luz Escamilla, D-Salt Lake City, said the Democrats oppose the resolution, "because of a lot of those unintended consequences."