Utah Senate advances resolution to remove second prong for injunctions after extended debate

Senator McKay moved the first substitute of House Joint Resolution 2 to third reading, proposing to eliminate Utah’s second-prong test for preliminary injunctions — the language that allows courts to issue temporary injunctions on the basis of a “substantial legal issue” even if the applicant is not shown substantially likely to win on the merits. McKay said the change brings Utah rule 65A into alignment with the federal standard and most other jurisdictions.

The proposal drew extended floor debate. Senator Weiler, who said he had researched the issue, compared the fight over the rule to a debate over the state flag and warned that the rule’s removal has polarized stakeholders. “I don’t believe eliminating this standard is harmful,” Weiler said, but acknowledged strong feelings on both sides of the issue.

Senator Reby raised concerns about relitigation and the burden on people subject to ongoing injunctions, calling potential rehearings “expensive and time consuming” and warning of impacts on families and victims. McKay responded that the Legislature and stakeholders have asked courts and attorneys for lists of injunctions that rely solely on the second prong; if injunctions exist that rest only on that prong, judges could rehear those matters, he said, but he noted the staff had not received an exhaustive list of such cases.

McKay argued the rule change is intended to reduce judicial activism and restore the focus to the applicant’s likelihood of success on the merits. “This rule should have been done away with a long time ago,” he said, urging colleagues to move the measure to third reading while amendments are finalized.

The Senate voted to read the first substitute HJR2 for a third time (first substitute having received 21 yay, 6 nay, 2 absent on the second-reading roll call), and sponsors said they will continue work with stakeholders, including the state bar, in advance of third-reading debate.

Next steps: HJR2 was moved to third reading and is expected to return to the floor with any negotiated amendments; sponsors indicated they plan to circle the measure for additional work before a final vote.