Monday, February 14, 2011

Standard for Virginia preliminary injunctions about to become more confusing

The version of SB851 offered by Se. Chap Petersen (D - Fairfax) that passed the Virginia Senate has high probability of passing the House.  In its current format it will cause more confusion in preliminary injunction matters than the current standard.

In my post dated January 9, 2011 I critiqued the bill as originally proposed, discussed the standard for temporary injunctions without this statute, and identified a potential weakness.  

The Senate amended the bill.  Unfortunately the amendment increases the problems with the bill, while the original problems remain unresolved.  If passed in its current format, it will disrupt and prevent orderly adjudications of preliminary relief in civil cases.

The amended version of the bill gives the expected four factor test, and states that the court should “review” the four factors.  It does not say that relief should only be based on the four factors, or that the four factors should be balanced to determine the equities and grant or deny relief.  Arguably, as written, a Court need only “review” the factors, and then could grant relief based on the judge’s own interpretation of common law rights to and standards for preliminary relief.

Absent from any amendments are clear instructions of how and when to apply preliminary relief.  To make SB851 workable in a courtroom the following additional items need to be added:

1. A clear indication that this four factor test is the only test to be applied when determining preliminary relief.

2. A clear indication that this is a balancing test, as well as emphasis on which factors are considered more important on balance.

3. A clear indication that this bill applies to all types of pretrial injunctive relief not otherwise covered in the Va. Code (such as domestic relations pendente lite orders), whether they are referred to as emergency injunctions, temporary injunctions, or preliminary injunctions.

Additionally, to accomplish the goal of actually helping litigants understand what is required of them procedurally in a preliminary injunction hearing, a statutory requirement as to the method of presentation of evidence is advisable, e.g. pleadings only, verified pleadings, affidavit, proffers, proffers with cross examination, ore tenus testimony, etc.  

In my opinion, without numbers 1-3 addressed above, this statute will be the subject of Virginia Supreme Court litigation within a year. I will simply hope that I am counsel of record when the issue arises so at least these drafting errors can help me professionally.


  1. It was passed by the senate, and then did not survive the House Courts of Justice Committee.