Sunday, January 9, 2011

Chap Petersen’s plan to fix the standard for temporary injunctions

Most people understand that the court system can be used to sue people for money.  Often people will show up on my doorstep asking me to ask a court to award something other than money such as declaring someone’s rights or obligations, or forcing somebody to do something or stop doing something. 
These other non-monetary remedies are generally called equitable remedies under Virginia law.  Of these equitable remedies if you want somebody to be forced to do something or stop doing something you need an injunction.  But lawsuits can take about a year in most northern Virginia Circuit Courts, and sometimes longer.  If you need the injunction now, the court can enter a preliminary injunction.  Preliminary injunctions are difficult to obtain, but for the unfamiliar attorney extremely difficult to understand procedurally.

In bill SB851, Sen. Chap Petersen (D-Fairfax) seeks to solve the most pressing question regarding preliminary or temporary injunctions.  Under Virginia law there is no controlling authority on how to define if a party seeking a temporary injunction is entitled to such injunction based on the “equities” under Va. Code § 8.01-628.  There is a standard that has been employed, a four factor test, by approximately 15 Virginia Circuit Court Judges which all rely (ultimately) on Federal District Court decisions for their origination.   This four factor test is respected outside Virginia and is taught to attorneys as black letter law for the bar exam.  Nonetheless, the Virginia Supreme Court has yet to weigh in on this four factor test and clarify “equities” for litigants.  SB851 takes the four part test and places it squarely in the code, so litigants seeking a temporary injunction no longer need to cite to 4 to 8 decisions for a Circuit Court to accept the four part test is the accepted standard.  

Here is where it gets interesting:

The four factor test is considered a balancing test.  In other words no one portion controls the outcome but on balance the test must be in favor of the party seeking the injunction for the injunction to be granted.  Historically greater emphasis has been placed on the “balance of hardships” of the likelihood and severity of harm to the party seeking the injunction of denial of the injunction, and the likelihood and severity of harm to the opposing party if an injunction is granted.  There is no preference for any particular factor in the proposed statute.  A judge reading statutory law that replaces an old standard with a new detailed standard will be required, due to the nature of statutory interpretation, to grant each of the factors equal weight.  I am not certain that is a bad thing.  I am also not certain there is a way to draft ourselves out of this secondary problem.

I strongly support this codification, and commend Sen. Petersen for solving a problem that most attorneys likely do not know exists.

This of course does not solve all of the myriad of other procedural problems posed to an attorney seeking a temporary injunction such as timing of service of process; scheduling the hearing; burdens of proof, and the availability and presentation of affidavit, ore tenus, and documentary evidence. 

Prediction: SB851’s fate is tied to the desires of Sen. Petersen.  It should be non-controversial so if Sen. Petersen makes this a priority it ought to pass at least in the Senate.

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