injunctions - chapter 4
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Discussion slidesRemediesFordham Law SchoolFall 2014Prof. George ConkTRANSCRIPT
RemediesSpring 2015Chapter 4 Injunctions
Prof. George W. [email protected] 8-122212-636-7446
Adjunct Professor of Law &Senior FellowStein Center for Law & Ethics
Ch. 4 Injunctions 1
Types of cases amenable to injunctive relief
Classic prohibitions/mandates recurrent trespass Nuisance abatement Pulp infringing material in copyright
cases Infringement in patent and copyright
cases unfair competition trademark infringemnt Specific enforcement of contracts of
sale of real estate or sale of unique goods
preserve or turnover tangible and intangible property
2Ch. 4 Injunctions
Types of cases amenable to injunctive relief
Employment Law labor disputes (illegal strikes,
unfair labor practices) cease discriminatory practices reinstate an employee wrongly
denied a promotion
3Ch. 4 Injunctions
Types of cases amenable to injunctive relief
Civil liberties/fair trial Permit or limit picketing/marches enjoin enforcement of
unconstitutional statute enjoin a bad faith prosecution or
civil proceeding (Dombrowski, Younger, Pennzoil)
enjoin a trial in an unfair forum (Garden State Bar Association)
4Ch. 4 Injunctions
Types of cases amenable to injunctive relief
Structural Injunctions Desegregate a school (Brown,
School busing) Racial gerrymandering – legislative
redistricting (Baker v. Carr) Restructure the financing of a
school system (Abbott v. Burke, Campaign for Fiscal Equity)
5Ch. 4 Injunctions
Precedent, Rules, StatutesChancery vs. Law Courts
FRCP 65CPLR Art. 63
Standards for injunctive relief
Ch. 4 Injunctions 6
F.R.C.P. 65 - Injunctions Plaintiffs must show:
(1) that unless the restraining order issues, they will suffer irreparable harm;
(2) that the hardship they will suffer absent the order outweighs any hardship the defendants would suffer if the order were to issue;
(3) that they are likely to succeed on the merits of their claims;
(4) that the issuance of the order will cause no substantial harm to the public; and
(5) that they have no adequate remedy at law.7Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
(a) Preliminary Injunction.
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits.
8Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
Before or after beginning a hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing.
Evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial.
The court must preserve any party's right to a jury trial.
9Ch. 4 Injunctions
F.R.C.P. 65 (b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. 10Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
(2) Every TRO issued without notice must - state the date and hour it was issued
- describe the injury and state why it is irreparable
- state why the order was issued without notice
The order expires at the time after entry--not to exceed 10 days--that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.
The reasons for an extension must be entered in the record. 11Ch. 4 Injunctions
F.R.C.P. 65 – Temporary Restraining Orders
(3) Expediting the Preliminary-Injunction Hearing.
If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time…
At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order. 12Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
(4) Motion to Dissolve. On 2 days' notice to the party who obtained the order without notice--or on shorter notice set by the court--the adverse party may appear and move to dissolve or modify the order.
The court must then hear and decide the motion as promptly as justice requires.
13Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
The United States, its officers, and its agencies are not required to give security.
14Ch. 4 Injunctions
F.R.C.P. 65 - Injunctions
(d) Contents and Scope (1) Contents. Every order granting an injunction and every restraining order must:(A) state the reasons why it issued;(B) state its terms specifically; and(C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.
15Ch. 4 Injunctions
Hughes v. Cristofane, (D MD 1980) p. 174 Why does the court grant a TRO? How does plaintiff meet the five FRCP
65 factors? What is the purpose of the security
bond? Why $500? What will happen at the preliminary
injunction hearing? Why not file suit in state court? Why not grant “Younger extension”
16Ch. 4 Injunctions
TRO – Hughes v. Cristofane (2) that effective immediately,
defendants Mayor and Councilmen of the Town of Bladensburg and their agents be, and the same hereby are Restrained from enforcing Ordinance 3-80 of the Town of Bladensburg for a period of ten days from the date of this Order
Why ten days?
17Ch. 4 Injunctions
Order – Hughes v. Cristofane
(3) that plaintiffs give security by filing forthwith a bond in the sum of $ 500.00 for the payment of such costs and damages as may be incurred or suffered by defendants if found to be wrongfully enjoined or restrained;
(4) that this matter be heard on plaintiffs' request for preliminary injunction at 4:30 p.m. on Monday, March 3, 1980 18Ch. 4 Injunctions
Abstention
The initial question for a federal court
confronted with a challenge to the
constitutionality of a state or municipal
ordinance is whether considerations of
comity and federalism require the court
to abstain from deciding the matter
until an appropriate state court has had
an opportunity to resolve the dispute. Younger v. Harris, 401 U.S. 37 (1971)
19Ch. 4 Injunctions
Abstention
None of the three plaintiffs is presently involved in a state court proceeding of any kind.
The plaintiffs have satisfied the court that the threat of their being prosecuted under Ordinance 3-80 is substantial and immediate.
Three of the dancers employed by the plaintiffs have already been arrested under the new law
Since the last arrest on February 14th, the police have visited the plaintiffs' restaurant at least once a day.
20Ch. 4 Injunctions
Hughes v. Cristofane486 F. Supp. 541, 543-544 (D. Md. 1980)
Application of the Five Factors The plaintiffs have satisfied each of the Rule
65 prerequisites.
If a restraining order did not issue, the owners of the Three Captains Restaurant would suffer irreparable harm both to their financial interests and to their interest in the free exercise of constitutional rights.
The plaintiffs have also satisfied the court that they have no adequate remedy at law. If the status quo is not preserved, the passage of time required to litigate the plaintiffs' claims will work the irreparable injury the plaintiffs have described.
21Ch. 4 Injunctions
Hughes v. Cristofane486 F. Supp. 541, 543-544 (D. Md. 1980)
Nothing in this opinion or in the
order should be deemed to affect
any state proceedings stemming
from enforcement of the ordinance
prior to today's date.
22Ch. 4 Injunctions
Winter v. NRDC (US 2008) p. 180
FRCP 65 refers to “likelihood of success on the merits” and “irreparable harm”
The District Court said the “possibility” or irreparable harm suffices.
CJ Roberts rejects that. Why? What harm does the Navy show to
counter that alleged by plaintiffs who seek only a stay pending an environmental impact statement?
Ch. 4 Injunctions 23
Winter v. NRDC (2008) p. 180 P’s obtain restraints pending Navy
filing Environmental Impact Statement
No sonar w/i 2,200 yard of marine mammal
What must P’s show? President Theodore Roosevelt
explained that “the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed.”
Ch. 4 Injunctions 24
Clinton v. Nagy, 411 F. Supp. 1396 (ND OH 1974) p. 187
What is the “irreparable harm”
that Brenda Clinton would suffer
if an injunction is not granted
permitting her to try out for a
football team?
Is the order too narrow?
Ch. 4 Injunctions 25
Washington Capitols v. Barry (N.D. Cal. 1969) p.191
Franchise player Rick Barry seeks to jump to Golden State Warriors
Is the 13th Amendment’s bar on involuntary servitude implicated?
Ch. 4 Injunctions 26
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191
Plaintiff seeks a preliminary injunction to enjoin Barry from playing professional basketball with any team other than plaintiff
The grant or refusal of injunctive relief is a matter of equitable jurisdiction
The purpose of the preliminary injunction maintain the status quo between the litigants pending final determination of the case is to. 27Ch. 4 Injunctions
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155
For plaintiff to succeed it must
show at least first, a reasonable
probability of success in the main
action and second, that irreparable
damage would result from a denial
of the motion
28Ch. 4 Injunctions
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155
A. The Status Quo
The status quo is the last, peaceable, uncontested status between the parties which preceded the present controversy. ***
The status quo of the parties to the action was that peaceable state of affairs existing when Barry was under contract to Oaks and, prior to his injury, playing professional basketball for that team during the 1968-69 season. 29Ch. 4 Injunctions
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 132
Irreparable harm
Irreparable injury is that which cannot be compensated by the award of money damages; it is injury which is certain and great. Such injury exists when an athletic team is denied the services of an irreplaceable athlete. Barry is just such an irreplaceable athlete.
30Ch. 4 Injunctions
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191
Weighing the Equities No matter which side prevails on
the merits in this controversy, it is indisputable that the other side may suffer substantial harm.
"In determining whether to grant a preliminary injunction it is proper for a court to 'weigh the equities' … and 'balance the hardships.'"
31Ch. 4 Injunctions
Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 191
Although the consequences of this determination may result in the departure of Barry from the San Francisco Bay Area to his claimed detriment, equitable considerations constrain this Court to sign this day the proposed findings of fact, conclusions of law, and order granting to plaintiff a preliminary injunction.
Any relief granted herein is without prejudice to defendant Barry's right to seek damages for any loss he may suffer and prove legally during the existence of this preliminary injunction.
32Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986) p. 196
A district judge… must choose the course of action that will minimize the costs of being mistaken.
Because he is forced to act on an incomplete record, the danger of a mistake is substantial. And a mistake can be costly.
33Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986)
If the harm to the plaintiff if the
injunction is denied, multiplied by
the probability that the plaintiff
will lose exceeds the harm to
defendant if the injunction is
granted the injunction should not
be granted.34Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986)
These mistakes can be compared, and the one likely to be less costly can be selected, with the help of a simple formula, grant the preliminary injunction if but only if P x Hp > (1-P) x Hd from the assumption that Hp = Hd
Is he serious?
35Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986)
The left-hand side of the formula is simply the probability of an erroneous denial weighted by the cost of denial to the plaintiff, and the right-hand side simply the probability of an erroneous grant weighted by the cost of grant to the defendant.
36Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986)
The familiar four (sometimes five or six) factor test that courts use in deciding whether to grant a preliminary injunction.
- whether the plaintiff will be irreparably harmed if the preliminary injunction is denied
- sometimes also whether the plaintiff has an adequate remedy at law
- whether the harm to the plaintiff if the preliminary injunction is denied will exceed the harm to the defendant if it is granted,
37Ch. 4 Injunctions
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986)
- whether the plaintiff is reasonably likely to prevail at trial, and
- whether the public interest will be affected by granting or denying the injunction (i.e.,
- whether third parties will be harmed -- and these harms can then be added to Hp or Hd as the case may be).
38Ch. 4 Injunctions
Swygert, dissenting
Equity, as the majority concedes,
involves the assessment of
factors that cannot be
quantified.
A court must to some extent, the
majority concedes, rely on the
"feel" of the case. 39Ch. 4 Injunctions
Swygert, dissenting
The majority never attempts to assign a numerical value to the variables of its own formula.
We are never told how to measure P or Hp or Hd.
The majority appears to concede, that a numerical value could never be assigned to these variables.
40Ch. 4 Injunctions
Swygert, dissenting
Judges asked to issue a preliminary
injunction must, in large part, rely
on their own judgment, not on
mathematical quanta.
41Ch. 4 Injunctions
Extraordinary relief:Mandamus
Ex Parte Temporary Restraining Order (TRO)
The Hearing Requirement
Ch. 4 Injunctions 42
Temporary, Preliminary, and Permanent relief TRO – Temporary restraining order - ex parte (defendant can’t be
trusted or reached) - on notice Preliminary Injunction - bond or other security conditions Permanent injunction - may be combined with damages
and other remedies
Ch. 4 Injunctions 43
Ex parte relief Immediate and irreparable
harm will occur before hearing
Preserve the status
quo/subject matter of the
court’s jurisdiction
Notice is impractical
Notice would cause loss of
`res’
May be dissolved on short
notice
44Ch. 4 Injunctions
Ex parte relief – the TROIn re Vuitton Et Fils S.A. p. 207 606 F.2d 1(2d Cir. 1979)
On petition for a writ of mandamus to enter an ex parte TRO
Vuitton states: Vuitton's experience, based upon the
84 actions it has brought and the hundreds of other investigations it has made . . . has led to the conclusion that there exist various closely-knit distribution networks for counterfeit Vuitton products.
45Ch. 4 Injunctions
Ex parte TRO
The ex parte temporary
restraining order is
indispensable to the
commencement of an action
when it is the sole method of
preserving a state of affairs in
which the court can provide
effective final relief.46Ch. 4 Injunctions
Ex parte TRO Immediate action is vital if there is risk
of: - imminent destruction of the disputed
property -removal beyond the confines of the
state, or - sale to an innocent third party
If giving the defendant notice of the application for an injunction could result in an inability to provide any relief at all – an order may be issued to preserve the status quo.
47Ch. 4 Injunctions
Problem 1 Labor Strife p. 209
Strikers disrupting plant access,
ignore company demands to cease &
desist
Why is this in state court?
What would the employer have to
show to get an ex parte TRO?Ch. 4 Injunctions 48
Injunction Act (Ill. Rev. Stat. 1975, ch. 69, par. 3 -- 1). "No [TRO] shall be granted without notice
to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.
Every temporary restraining order granted without notice * * * shall define the injury and state why it is irreparable and why the order was granted without notice * * *."
Ch. 4 Injunctions 49
American Can v. Mansukhani, p. 210 The ex parte order enjoined
defendants from selling jet inks of any type, including defendants' SK-2914 and SK-2916 jet inks, to any of plaintiff's customers, previously serviced by Mansukhani when he was employed by plaintiff…
What was the defect in the court’s order?
What would have cured it? Does Mansukhani have a remedy?
Ch. 4 Injunctions 50
American Can v. Mansukhani Where there are no practical obstacles
to giving notice to the adverse party, an
ex parte order is justified only if there is
no less drastic means for protecting
the plaintiff's interests.
What would have been a better course
for the court below?
Ch. 4 Injunctions 51
American Can v. Mansukhani
Such an order could have instructed defendants not to disturb their inventory or to secrete documents pending the hearing
Plaintiff must show, in effect, that the defendants would have disregarded a clear and direct order from the court to preserve the inks and documents for a few hours until a hearing could have been held.
Ch. 4 Injunctions 52
Appeals
TRO’s not subject to immediate right of appeal
Grants, continuing, modifying, or refusing injunctions are subject to right of immediate appeal 28 USC 1291
Why?
Ch. 4 Injunctions 53
Marquette v. Marquette, p. 215
Why should an ex parte order
barring visitation with one’s
child be granted so readily?
Is this right likely to be abused
in practice?
Ch. 4 Injunctions 54
Persons bound, p. 217• Agents• Aiders and abettors• Acting in concert• Persons with knowledge of the
decree• Successors in interest• Those in contact with the `res’• Class members
Ch. 4 Injunctions 55
Notice
ACTUAL Notice is required – FRCP 65 (d) Mutuality of purpose is not
enough!
Ch. 4 Injunctions 56
Planned Parenthood v. Garibaldi, p. 218 Operation Rescue organized and
coordinated regular protests at the clinic.
- "several 'very large . . . blockades' of more than 100 protestors [that] resulted in the clinic's temporary closure.
- 'rows of people blocked all the doors' to the clinic.
Is actual notice, agency, employment or acting in concert too protective of the protesters?
Ch. 4 Injunctions 57
Planned Parenthood v. Garibaldi
Personal jurisdiction and notice are not enough
The Order must be directed against
that person as an individual or as
member of a class to which that
individual belongs
Ch. 4 Injunctions 58
SUNY v. Denton p. 223
Injunction aimed at students
barred disruption and
interference
45 Faculty entered President’s
office and refused to leave
Isn’t that “acting in concert” ?
Was the court too lenient in
dismissing the contempt
citations ?
Ch. 4 Injunctions 59
Dalton v. Meister (WI 1978), p. 225 District Court had power in school
desegregation case to “protect its ability to render a binding judgment between the original parties…by issuing an interim ex parte order against an undefinable class of persons”.
“Willful violation by a person with notice constitutes criminal contempt”.
Ch. 4 Injunctions 60
Dalton v. Meister (WI 1978)
“A nonparty may be held in contempt
for violating an injunction if he is in
privity with a party or subject to his
control if he is acting in concert with
a party, or if he aids and abets a
party in violating an injunction”. Is that constitutionally sufficient
notice?Ch. 4 Injunctions 61
Golden State Bottling v. NLRB, p. 231 Although All American was a bona
fide purchaser of the business, unconnected with Golden State, the Board found that, having acquired the business with knowledge of the outstanding Board order, All American was a "successor" for purposes of the National Labor Relations Act and liable for the reinstatement of Baker with backpay
If equity is in personam why isn’t All American “off the hook”?Ch. 4 Injunctions 62
Cape May & Schellenger’s Landing RR Co. v. Johnson (Ch. 1882) p. 235
Notice to City Council by telegraph sufficient to support contempt conviction
“Notice, to be sufficient, need possess but two requisites--first, it must proceed from a source entitled to credit; and second, it must inform the defendant clearly and plainly from what act he must abstain.”
Can notice by email, tweet, text message, `like’ on Facebook page?
Ch. 4 Injunctions 63
Midland Steel v. Int’l Union, p. 238 “appellants’ knowledge of the
two picket limit, as
demonstrated by their
compliance with that limit, raises
an inference that they (actually)
knew of the other limits in the
TRO.”
Justice Douglas says presumption
has been piled on top of
presumption. Is that correct?
Ch. 4 Injunctions 64
Vermont Women’s Health Ctr. V. Operation Rescue p. 241
Why are the protesters afforded
an opportunity to leave without
arrest?
Ch. 4 Injunctions 65
Vermont Women’s Health Ctr. V. Operation Rescue, p. 241 TRO, damages, attorneys fees,
prospective coercive fines
Elements for enforcement:
Act in concert
Order specific and unambiguous
Actual knowledge of mandate
Ch. 4 Injunctions 66
Vermont Women’s Health Ctr. V. Operation Rescue
Standard of review: “is there
substantial credible evidence to
support the finding that each
defendant knew of the terms”
What did police do to sufficiently
inform the protesters of the
Order? Ch. 4 Injunctions 67
FRCP 65(c)
The Bond Requirement
Ch. 4 Injunctions 68
F.R.C.P. 65 - Injunctions
c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
Does this unreasonably burden the right to seek redress of grievances?
69Ch. 4 Injunctions
Security, surety, insurance Security: asset pledged to satisfy a
contingent obligation Obligee: one owed money or service Principal: one who owes money or
performance Surety: one who stands in the shoes
of the obligor toward the obligee Insurance: a contract obtained by a
contingent obligor to indemnify the obligor for a specified type of liability
Ch. 4 Injunctions 70
Damages for wrongful injunction
“a party injured by issuance of
an injunction later determined to
be erroneous has no action for
damages in the absence of a
bond” WR Grace & Co. v. Local 759 (U.S.
1983)Ch. 4 Injunctions 71
Nintendo v. Galoob (9 Cir. 1994) p. 243
Nintendo gets Preliminary Injunction, later loses
De novo review of decision to execute a bond
Galoob was unlawfully enjoined Damages presumed Damages to be compensatory – must
be “reasonably certain”
Ch. 4 Injunctions 72
Coyne-Delany Co. v. Capital Dev. Bd., 717 F.2d 385, 393 (7th Cir. Ill. 1983) p. 247
The bond is the limit of the
damages the defendant can
obtain for a wrongful injunction,
even from the plaintiff, provided
the plaintiff was acting in good
faith.
Why recognize such a limit?Ch. 4 Injunctions 73
Smith v. Coronado, p. 251Arizona (1977)
Should we have a different rule on
damages if an order is reversed or
vacated if it was obtained ex parte?
Even though 10 days is the limit and
it can be dissolved on short notice?
How can courts set reasonable sums
for injunction bonds?Ch. 4 Injunctions 74
Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir. Tex. 1989) Bond requirement: 1) assures enjoined party it can
collect damages 2) notifies good faith plaintiff of
the maximum extent of its potential liability
What interests are protected by such a rule?
Ch. 4 Injunctions 75
Continuum obtained injunction against Incepts, p. 253 Bond in favor of Incepts increased
after 11 day hearing from $200K to $2M
Continuum $2.5M annual profit $2M bond would impose great
hardship Bond req’t reduced but Continuum
must “file an undertaking that the amount of the bond will not limit the amount of damages for which it might be liable”.Ch. 4 Injunctions 76
A discretionary power
Permanent Injunctions
Ch. 4 Injunctions 77
Framing the Injunction FRCP Rule 65 (d) (1) Contents.
Every order granting an injunction and every restraining order must:(A) state the reasons why it issued;(B) state its terms specifically; and(C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.
78Ch. 4 Injunctions
Ebay v. MercExchange (U.S. 2006) p. 256 Court of Appeals for the Federal
Circuit states categorical rule: injunction shall be issued in patent cases after liability determined
Reversed Patent Act says “injunctions may
issue in accordance with the principles of equity”
Four factor test must be used
Ch. 4 Injunctions 79
Ebay v. MercExchange (U.S. 2006)
Kennedy, Stevens, Souter & Breyer Concurring but would be skeptical of
injunction applications by patent trolls
“An industry has developed in which firms use patents not to sell and produce goods, but primarily for the purpose of obtaining licensing fees”.
Why should injunctions be viewed skeptically in such cases?
Ch. 4 Injunctions 80
Walgreen v. Sara Creek (7 Cir. 1992) p. 261
Permanent injunction enforced lease Damages are the norm but… Striking a balance of costs and
alternatives is for the trial judge subject to deferential appellate review
Proponent’s burden is to show that damages are inadequate
Injunction compels parties to negotiate
Ch. 4 Injunctions 81
Weinberger v. Romero (1982) p. 267 Clean Water Act 33 USC 1251 (3) “…
it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited”.
Surely that includes detonation of high explosives off the shore of Vieques a resort island. Why does the court allow judges to make exceptions to what Congress has prohibited?
Ch. 4 Injunctions 82
Framing the injunction
FRCP 65 Set forth reasons for issuance Specificity in terms Describe in reasonable detail the
acts to be restrained
What are the policies behind these requirements?
Ch. 4 Injunctions 83
Murray v. Lawson, 136 N.J. 32(N.J. 1994) p. 271
ORDERED that the defendants and all persons and organizations associated with or acting in concert or combination with them be ENJOINED and RESTRAINED as follows:
1. From gathering, parading, patrolling for the purpose of demonstrating or picketing within the immediate vicinity of plaintiffs' residence * * *.
2. Distributing flyers to plaintiffs' neighbors which contain references to [Dr. Boffard] as being a murderer or killer or his practice as involving murder or killing or which contains any other inflammatory language or which sets forth the plaintiffs' home address.
3. Carrying placards which contain depictions of a fetus * * *.
84Ch. 4 Injunctions
Murray v. Lawson (N.J. 1994)
“Your husband is a murderer”
Dr. Boffard lives on a one lane dead-end street with only two houses on it.
The injunction banned “gathering in the immediate vicinity”.
What’s wrong with that?
85Ch. 4 Injunctions
Murray v. Lawson (N.J. 1994)
The Chancery Division has great flexibility in defining the scope of the ban; the court could, for example,
- preclude picketing on plaintiffs' street
- prohibit that activity - within a specific number of feet
from, - within sight distance of or - in front of plaintiffs's residence.
86Ch. 4 Injunctions
Reno Air Racing v. McCord (9 Cir. 2006) p. 275
Ch. 4 Injunctions 87
“confusingly similar”
Kilgrow v. Kilgrow (ALA 1958) p. 279
“the judicial mind and conscience is repelled by the thought of disruption of the sacred marital relationship”
There was an ante-nuptial agreement. Why not just enforce it?
Ch. 4 Injunctions 88
Peggy Lawton Kitchens v. Hogan (1989) p. 282 Hogan enjoined from “making,
baking, and selling chocolate chip cookies that use or utilize Peggy Lawton’s[secret] formula”
Hogan dropped nut meal and added a small amount of vanilla extract.
The patent doctrine of `substantial equivalence’ extends protection to imitators who make minor changes.
Why not use that idea here to hold Hogan in contempt?
Ch. 4 Injunctions 89
Mass. Gen. Laws, ch. 266, §120E½(b) “No person shall knowingly enter or
remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway … or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway.”
Ch. 4 Injunctions 90
McCullen v. Coakley (U.S. 2014) How does the Mass. statute differ
from the Madsen restraints? Should a patient have more rights
than a worker crossing a union picket line?
Is Posner right that there is an unreasonable interference by intermeddlers?
Or is Scalia right to emphasize the peaceful nature of the plaintiff’s entreaties?
Ch. 4 Injunctions 91
Madsen v. Women’s Health Center (U.S. 1994) p. 285
There are three approaches:
Rehnquist (majority)
Stevens
Scalia
Which approach of the three do
you think is best?92Ch. 4 Injunctions
Madsen v. Women’s Health Ctr., (U.S. 1994)
Majority
Whether by statute or ordinance
“content neutral” restrictions on
picketing, etc. must be “narrowly
tailored to serve a significant
governmental interest”.
93Ch. 4 Injunctions
Madsen, [W]hen evaluating a content-
neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.
36-foot buffer zone meets that test
94Ch. 4 Injunctions
Statutes and Injunctions Justice Stevens: review of an
injunction is more lenient than of a statute.
A 36 foot exclusion zone via statute would violate the constitution – but not an injunction providing the same.
How are they different? Should they be treated
differently? 95Ch. 4 Injunctions
Justice Scalia : strict scrutiny “an injunction restricting speech
must be no more restrictive than“necessary to serve a compelling state interest and narrowly drawn to achieve that end”.
This order is really “content-based”
Scalia thinks an injunction is more dangerous than a statute.
Do you agree with Scalia? 96Ch. 4 Injunctions
Strict scrutiny of injunctions? Justice Scalia : The court could have ordered: Stay out of the street - limit number demonstrators on
clinic side - forbidden walking on driveway P. 252
97Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
The amended injunction prohibits petitioners from engaging in the following acts:
(1) At all times on all days, from entering the premises and property of the Aware Woman Center for Choice [the Melbourne clinic] . . . .
"(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic.
98Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994
"(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic . . . . An exception to the 36 foot buffer zone is the area immediately adjacent to the Clinic on the east . . . . The [petitioners] . . . must remain at least [5] feet from the Clinic's east line. 99Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.
100Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
"(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. . . .
Isn’t this a reasonable measure to protect privacy?
101Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents'] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [respondents'] employees, staff, owners or agents.
Isn’t this reasonable protection for “the last citadel”?
102Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or otherwise, the free ingress or egress of persons to any street that provides the sole access to the street on which those residences are located.
103Ch. 4 Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
(7) At all times on all days, from physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons entering or leaving, working at or using services at the [respondents'] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of the Clinic . . . .
104Ch. 4 Injunctions
Madsen
(8) At all times on all days, from harassing, intimidating or physically abusing, assaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing services at the [respondents'] Clinic.
105Ch. 4 Injunctions
Madsen
(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.
106Ch. 4 Injunctions
Madsen
Justice Stevens writes:
As with [union labor] picketing, the
principal reason why handbills
containing the same message are
so much less effective than
"counseling" is that "the former
depend entirely on the persuasive
force of the idea."107Ch. 4 Injunctions
Madsen
Stevens, cont’d Just as it protects [labor]
picketing, the First Amendment protects the speaker's right to offer "sidewalk counseling" to all passers-by. That protection, however, does not encompass attempts to abuse an unreceptive or captive audience, at least under the circumstances of this case.
108Ch. 4 Injunctions
Madsen
Stevens, cont’d One may register a public protest
by placing a vulgar message on his jacket and, in so doing, expose unwilling viewers….
Nevertheless, that does not mean that he has an unqualified constitutional right to follow and harass an unwilling listener, especially one on her way to receive medical services.
109Ch. 4 Injunctions
Federalism in two viewsFrom Dombrowski to Younger
Injunctions against state prosecution
Ch. 4 Injunctions 110
Younger v. Harris (1971) a proper respect for state functions,
a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism’Ch. 4 Injunctions 111
Younger v. Harris (1971) 28 USC § 2283. Stay of State
court proceedings A court of the United States may not
grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
Why didn’t this statute bar the Dombrowski injunction?Ch. 4 Injunctions 112
Dombrowski v. Pfister (1965)
Equitable relief will be granted to prevent a substantial loss or impairment of freedoms of expression resulting from prosecution under an excessively broad statute regulating expression.
Citing Baggett v. Bullitt
Ch. 4 Injunctions 113
Wash.Rev.Code § 9.81.060 "'Subversive person' means any
person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of Washington…
Ch. 4 Injunctions 114
The bad faith allegation
[Dombrowski, et al.] have attacked the good faith of the [legislative committee] in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities
Ch. 4 Injunctions 115
The allegations The allegations in this complaint
depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights… if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.
What are the circumstances as described by Judge Wisdom’s dissent?
Ch. 4 Injunctions 116
Dombrowski v. Pfister (1965)
(a) Defense of a criminal prosecution will not generally assure ample vindication of First Amendment rights
(b) A chilling effect upon First Amendment rights might result from such prosecution regardless of its prospects of success or failure
Ch. 4 Injunctions 117