Injunctions - Chapter 4

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

mailto:[email protected]

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


Employment Law labor disputes (illegal strikes,

unfair labor practices) cease discriminatory practices reinstate an employee wrongly

denied a promotion

3Ch. 4 Injunctions


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


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


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


(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


(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


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


(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.”


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?


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?


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


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


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


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


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


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


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


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


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


- 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


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


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 * * *."


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?


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?


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.


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?


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?


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


Notice

ACTUAL Notice is required – FRCP 65 (d) Mutuality of purpose is not

enough!


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?


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


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 ?


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”.


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?


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?


Vermont Women’s Health Ctr. V. Operation Rescue p. 241

Why are the protesters afforded

an opportunity to leave without

arrest?


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


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



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


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”


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

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393


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?




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


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


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?


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


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?


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?


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


“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?


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?


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.”


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?


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


(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


"(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?



(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”?



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.



(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 . . . .


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.


Madsen

(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.


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.


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.


Federalism in two viewsFrom Dombrowski to Younger

Injunctions against state prosecution


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


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…


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


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?


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


Injunctions - Chapter 4

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Transcript of Injunctions - Chapter 4