‘Power grab' from the courts? Utah bill would raise bar to pause alleged unconstitutional laws

Yahoo

07-02-2025

Sen. Brady Brammer, R-Pleasant Grove, works in the Senate chamber at the Capitol in Salt Lake City on Thursday, Feb. 6, 2025. (Photo by Spenser Heaps for Utah News Dispatch)
A wonky bill that could have big impacts on court cases challenging the constitutionality of laws passed by the Legislature is heading to the full Utah Senate for consideration after winning endorsement from a Senate committee on Wednesday.
The bill's critics — including those challenging Utah's near-total abortion ban in court — argue it's part of a 'blatant power grab by the Legislature against the courts and the constitutional separation of powers in Utah.'
Contending that Utah judges have too often blocked laws passed by the Legislature from taking effect while courts weigh their legal standing, Sen. Brady Brammer, R-Pleasant Grove, wants to raise the legal bar before laws can be put on hold.
With SB204, Brammer wants to give state attorneys the ability to seek a 'suspensive appeal' to stop a court-ordered injunction from blocking enforcement of a law while the rest of the court case plays out.
'What that does is it says, 'Hey, you know, the law should not be set aside quite so easily,'' Brammer said Wednesday during the bill's first public hearing in the Senate Judiciary, Law Enforcement and Criminal Justice Committee.
SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
'If they're going to enjoin a law that's been passed by the duly elected people, they are getting in the way of democracy on a lot of levels,' Brammer said. 'You know, there are times when that's appropriate, but they may have swung the pendulum too far. And so that's really the brunt of this. And this provides immediate relief to get that issue before the courts sooner rather than later.'
If a trial court grants an injunctive order in a case with an underlying claim that the state law is unconstitutional, SB204 would allow state attorneys to file a motion to ask the court to decide whether the plaintiff challenging the law can 'establish, by clear and convincing evidence, that there is a substantial likelihood that the plaintiff will prevail on the merits of the underlying claim that the state law is unconstitutional.'
The bill would then require the judge to issue a decision that 'resolves any doubts in favor of constitutionality' and 'states the facts, law, and reasoning that support the court's finding.' If a judge still issues an injunction, SB204 would then allow state attorneys to seek a 'suspensive appeal' to take the case straight to the state's highest court.
The Utah Supreme Court would then weigh whether the law is unconstitutional and whether the injunction 'should remain in effect during the pendency of the civil action.' While the Utah Supreme Court weighs those questions, however, the injunction would be 'suspended until the appeal is resolved or the parties stipulate otherwise.'
If passed by the full Utah Legislature, SB204 would take effect on May 7.
Brammer argued courts should have a higher bar before pushing pause. '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,' he said.
Brammer pointed to a ruling in December in which a judge granted a temporary restraining order against a recently-passed law to restrict flavored e-cigarettes. That bill, which he co-sponsored with Democratic Sen. Jen Plumb, was blocked 'without even receiving the opposing brief from the state,' he said.
'That's taking our law quite lightly,' Brammer said. '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.'
Though he didn't point to them specifically, there are other more high-profile court cases that have fed tension between the Republican-controlled Utah Legislature and the Utah Supreme Court.
One lawsuit in play that Brammer's bill could potentially impact is an ongoing court case challenging Utah's near-total abortion ban that was triggered when the U.S. Supreme Court overturned Roe v. Wade in 2022.
Last summer, the Utah Supreme Court upheld an injunction that blocked enforcement of Utah's trigger abortion ban after Planned Parenthood of Utah sued, alleging the ban was unconstitutional. That injunction remains in place today as litigation continues to play out in 3rd District Court.
In the meantime, abortions have remained legal in Utah up to 18 weeks of most pregnancies under a 2019 law.
That Utah Supreme Court ruling upset Republican lawmakers, and in part has fueled lawmakers' frustration with the judiciary that continues to loom over the 2025 Utah Legislature.
Citing 'frustrations' with the courts, Utah Republican lawmakers eye possible judicial reforms
Brammer's bill is one of the first to be considered so far this session that could potentially give the Legislature more of an edge in court proceedings. He has another, SB203, that would restrict who would be eligible for third-party standing to bring civil actions against the state.
That bill was held up in the Senate committee Wednesday after it failed to advance on a 3-3 vote. But the committee's chair Sen. Todd Weiler, R-Woods Cross, said he'd put it on the committee's next agenda to reconsider it.
To Kathryn Boyd, president and CEO of Planned Parenthood Association of Utah, both of those bills raise a bigger issue than just the potential impact to the case holding up Utah's abortion ban.
'The real impact of these bills is on the rule of law and the judiciary because they represent a blatant power grab by the Legislature against the courts and the constitutional separation of powers in Utah,' Boyd said in a statement. 'Sen. Brammer is proposing an untested and fringe legal theory to wrest power away from the Courts because he is offended when Utah judges follow long-established rules and procedures to block unconstitutional legislation passed by lawmakers.'
Brammer, through a statement issued by a Senate spokesperson earlier this week, did not answer a question from Utah News Dispatch about whether his bill is at least in part aimed at trying to enact Utah's abortion ban while the court case plays out. His statement explained the bill from a broader level.
'In this state and in our courts, it has long been the policy to presume laws are constitutional, with doubts resolved in favor of constitutionality,' he said. 'SB204 seeks to ensure that legal tools are used in a way that respects the roles of all three branches of government while also addressing concerns about the overuse of injunctions by courts to block laws passed by the Legislature and signed by the governor. I believe this will help protect the integrity of the process of upholding the rule of law in Utah.'
David Connors, a former district court judge who spoke on behalf of the Utah State Bar Commission before the Senate committee, said the bar has voted to oppose the bill in its current form, though he said the commission welcomes further discussion to address concerns.
Currently, though, Connors said Brammer's bill 'raises some interesting and serious issues regarding the checks and balances within our constitutional form of government.'
Utah Supreme Court upholds pause on trigger law that would ban almost all abortions
Connors noted that under Utah's existing rules of civil procedure, before issuing an injunction on a law, a judge already needs to determine 'there is a substantial likelihood that the applicant would prevail on the merits of the underlying claim.' He noted that the Legislature changed that standard roughly a year ago to raise that bar.
'And that's important,' he said. 'Because what's being asked to be done in this case is, one assumes the judge has already made that particular determination. If the party opposing doesn't like the determination, it can then go back and make a motion and ask the same judge to make an additional ruling the same issue … and then asking the court not only to find that it's likely to be unconstitutional, but also to find that likelihood by a standard we call clear and convincing evidence, which is a heightened standard.'
That's an 'odd' standard to require at that point in the case, Connors said, because at that point the case would not have yet reached evidentiary proceedings. 'Clear and convincing evidence is a question that the court has to determine when it weighs evidence at the conclusion of a case,' Connors said, not at the beginning.
On top of that is the question of allowing a 'suspensive appeal' to bring the case directly to the Utah Supreme Court. Connors said then the bill appears to 'take away from the Supreme Court any option to allow the injunction to stay in place.'
Connors then questioned whether the law could apply to not just the Legislature or the state government, but 'any city' that could try to invoke the SB204's provisions. He warned against 'unintended consequences' of potentially empowering other legislative bodies, like cities, to enact clearly unconstitutional laws — such as a law to seize and destroy gun owners' guns.
Linda Smith, an attorney and retired law professor, also spoke against the bill, saying it would 'vastly change how courts deal with injunctions.'
She argued the courts must already weigh high standards before issuing an injunction on a law, including whether a person seeking the pause will suffer 'irreparable harm' without the injunction, and that the 'threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restrained or enjoined,' and that the injunction 'would not be adverse to the public interest.'
'Those other points robustly cover whether this injunction is appropriate in the setting where there's a question about a law's constitutionality, and the judge thinks it's likely unconstitutional,' Smith said.
CONTACT US
She argued Brammer's bill goes too far.
'I think that's very poor public policy, to require that a statute that a judge has found likely unconstitutional to go into effect just because there's an appeal,' Smith said.
Brammer disagreed with Smith and Connors. He argued his bill would only apply to state law and not cities, though he agreed the Legislature should be wary of 'unintended consequences.'
'That's been one of the problems with the courts kind of being very loose on enjoining laws,' Brammer said, adding that he believes judges have been 'getting the analysis wrong' and that's led to them frequently issuing injunctions.
'We are very concerned with the levity by which the courts are treating the laws in the Legislature. And they're setting themselves up to be antagonistic,' Brammer said. 'It seems to be the standard is let's enjoin any law and we're going to go through the entire process, and then we'll figure it out at the end at the Supreme Court level. I don't think they should be doing so so lightly.'
The Senate Judiciary Committee voted 6-2 to endorse the bill. It now goes to the full Senate for consideration.
SUPPORT: YOU MAKE OUR WORK POSSIBLE