Preliminary Injunctions, Temporary Restraining Orders and Declaratory Judgments Jerry Brown

1. Preliminary Injunctions, Temporary Restraining Orders and Declaratory Judgments Jerry Brown January 25, 2012

2. Preliminary Injunctions, TROs and Declaratory Judgments • Requests for emergency or non-monetary relief: -Preliminary Injunctions -Temporary Restraining Orders -Declaratory Judgments

3. Preliminary Injunctions, TROs and Declaratory Judgments • Often, a petitioner will request all of them. -Why? • Differences between them, strategic advantages of each.

4. Preliminary Injunctions and TROs under Illinois Law • 735 ILCS 5/11-102 (Preliminary Injunctions) • 735 ILCS 5/11-103 (TROs)

5. Preliminary Injunctions and TROs • FRCP 65(a) – (Preliminary Injunctions) • FRCP 65(b) – (Temporary Restraining Orders)

6. Purpose of Preliminary Injunctions and TROs • Preserve the “Status Quo.” • The “Status Quo” is the “last actual, peaceable, uncontested status preceding the pending controversy.” (Black's Law Dictionary 1410 (6th ed. 1990)).

7. Mandatory and Prohibitory Orders • Mandatory orders require that parties perform certain specified acts. • Prohibitory order require that parties refrain from performing certain specified acts. • Mandatory orders are automatically stayed when an appeal is pending. Prohibitory orders are not.

8. Mandatory and Prohibitory Orders, continued In some cases it may be unclear whether an order is mandatory or prohibitory.

9. Elements for Preliminary Injunctions and TROs • Clearly ascertainable right in need of protection • Irreparable harm • Lack of adequate remedy at law • Likelihood of success on the merits • Balancing of hardships • Courts will consider public policy if relevant.

10. Differences Between Preliminary Injunctions and TROs • TROs can be issued on an ex-parte basis; Preliminary injunctions cannot. • TROs initial duration is limited (10 days in state court; 14 days in federal court) (TROs however can be extended beyond initial term). • Preliminary injunctions not subject to preset limit in duration. • TROs typically followed by preliminary injunction.

11. Reasons for Choosing Between Preliminary Injunctions and TROs • If you cannot get timely notice to opposing party, TRO may be best choice. • If you fear that if given notice, the opposing party may accelerate course of conduct to moot controversy and cause irreparable harm before being bound by court order, TRO may be best choice. • If it is feasible to give notice, preliminary injunction may be best choice.

12. Reasons for Choosing Between Preliminary Injunctions and TROs • Preliminary injunction has no preset duration. • No need to move for extension of order, unlike TRO. • Courts disfavor ex-parte proceedings.

13. Preliminary Injunctions and TROs • A trial court has substantial discretion in deciding whether to grant or deny a preliminary injunction or TRO and that determination will not be disturbed on appeal absent an abuse of discretion. • There is no right to a jury trial for an injunction or TRO.

14. Bond Requirement • Under Illinois law, the court, in its discretion, may require the posting of a bond before entering a preliminary injunction or a TRO. 735 ILCS 5/11-103 • Under federal law, bond is required for preliminary injunctions and TROs. FRCP 65(c).

15. Bond requirement, continued • Claims on bond by a party wrongfully enjoined limited to bond amount. • If a party disagrees with the bond amount, it can appeal. • The standard on review is abuse of discretion by the trial court. • A party who fails to raise issue of bond during hearing before trial court waives it.

16. Bond Requirement, continued • Clients may not wish to bear expense of appealing trial court bond decision. • At hearing, be prepared to vigorously argue issue of bond.

17. Appeal of Preliminary Injunctions and TROs • Adverse rulings on preliminary injunctions or TROs are subject to interlocutory appeal. • Illinois law – Illinois Supreme Court Rule 307(a), (d). • Federal law – 28 USC § 1292

18. Notice Requirements for Preliminary Injunctions and TROs • Illinois Supreme Court Rule 11 • Hand delivery • U.S. Mail • Commercial courier • Facsimile • E-mail not explicitly authorized

19. Notice Requirements for Preliminary Injunctions and TROs • Federal law • FRCP 5 • Hand delivery • U.S. Mail • Electronic means, if other party has consented in writing • Any other means to which the other party has consented in writing

20. Notice Requirements for Preliminary Injunctions and TROs • Federal TROs anticipate oral notice (FRCP 65(b)(1)) • Other methods of notice may run risk of technical non-compliance, but may more effectively achieve purpose of notice provision. • Consider party receiving notice of preliminary injunction by e-mail without consent. Is the party likely to disregard the notice in hope of arguing later that notice was defective? • Check local rules.

21. What is an Irreparable Harm? • Party cannot be adequately compensated in damages or when damages cannot be measured with any certainty. • Violations of constitutional rights, however brief, usually qualify as irreparable harm.

22. Lack of Adequate Remedy at Law • Money damages • Other legal remedies • Ejectment • Replevin • Mandamus • Prohibition • Habeas corpus

23. Balance of Hardships A court will compare the hardship to the petitioner if injunctive relief is denied to the hardship to be suffered by the respondent if injunctive relief is granted.

24. Public Policy The court will examine whether relevant public policies are implicated in the granting or denial of injunctive relief.

25. Likelihood of Success on the Merits To show a likelihood of success on the merits, so as to support a request for a preliminary injunction or a TRO, a party does not have to meet the same burden of proof that is required at the final hearing. Rather, a plaintiff need only raise a fair question as to the existence of the right which he or she claims and lead the court to believe that he or she will probably be entitled to the relief requested if the proof sustains his or her allegations.

26. Assuming Relief is Granted • Pay close attention to the language of the order – make sure that the order is clear, specific and capable of enforcement. • Ambiguity, over breadth and impossibility of performance or compliance can be fatal to efforts to enforce injunctive orders. • People ex rel. City of Chicago v. Le Mirage, Inc.2011 WL 5600509 (1st Dist. 2011).

27. Enforcement of Order • Contempt • Rule to show cause • Civil contempt/criminal contempt • Contempt sanctions • Collateral Bar Rule

28. Declaratory Judgments • Illinois law (735 ILCS 5/2-701) • Federal law (FRCP 57) • Purpose of declaratory judgment • To allow the court to address a controversy a step earlier than normal once a dispute has developed, but before the parties take steps that would expose them to claims for damages or other relief.

29. Declaratory Judgments • A declaratory judgment action considered neither a legal action nor an equitable action.

30. Declaratory Judgments • Elements to be pleaded: • (1) tangible legal interest; • (2) facts indicating that the defendant's conduct is opposed to those interests; and • (3) an ongoing actual controversy between the parties which is likely to be prevented or redressed by court action.

31. Declaratory Judgments The decision to grant or deny declaratory relief is within the sound discretion of the trial court, and the trial court's determination will not be reversed absent proof of an abuse of discretion.

32. Declaratory Judgments • The Federal Declaratory Judgment Act was enacted to provide an alternative to the remedy of injunctive relief, to be used to challenge the constitutionality of state criminal statutes in cases where injunctive relief would be unavailable. Under the Declaratory Judgment Act, declaratory relief may be available even if an injunction is not allowed.

33. Declaratory Judgments • Why would a party seek a declaratory judgment instead of a preliminary injunction or a TRO? • In some cases, it may be easier to establish jurisdiction (for preliminary injunctions and TROs challenging statutes, a court may conclude that there is no standing until the statute has already been violated). • No need to show “irreparable harm.” • No bond requirement. • No balancing of hardships.

34. Declaratory Judgments • Declaratory judgments not enforceable by contempt power; • Declaratory judgment does not, by its language, directly prohibit or compel conduct, and may therefore fail to preserve status quo.