[Posted August 13, 2013] Let’s say you’ve prepared a pleading in which you’re seeking a temporary injunction in your local circuit court. You think you’ve got a compelling basis for getting the judge to enjoin your Bad Guys; you have your witnesses lined up for the hearing on Friday. For your last order of preparatory business, you sit down to craft a cogent bench brief on the standard for granting temporary injunctions.

You’re going to be sitting for a while.

Getting guidance from the caselaw for preliminary injunctions in federal court is easy; there are loads of federal decisions that set out exactly how the district judge is supposed to weigh various factors and come to a legal conclusion. For a generation, The One Case to Cite around here was Blackwelder Furniture v. Seilig Manufacturing, 550 F.2d 189 (4th Cir. 1977). It contained a four-part test and a sliding scale that was, if not always easy to apply, easy to enumerate and a fertile ground for argument. Lawyers made millions on Blackwelder briefs and arguments.

A couple of 2008 decisions out of the Supreme Court of the United States made short work of the body of caselaw that had been built on Blackwelder’s foundation; the Big Robes kept the same four factors, but scotched the sliding scale that had been Blackwelder’s hallmark. Suddenly, all that caselaw was of limited utility, even in federal court.

But you’re in state court, remember? You turn to the volumes of Virginia Reports to see what standards the Supreme Court of Virginia had laid down for trial courts to apply in evaluating requests for injunctions, but you come up empty. You learn the unfortunate truth: There is no published SCV decision that serves as the functional equivalent of Blackwelder (or its Fourth Circuit replacement, Real Truth About Obama v. FEC from 2009). Nor is there a statute or rule of court that spells out the standards that a trial court is supposed to employ. The closest we get to any such guidance is the unhelpful generality of Code §8.01-628, which reads in its entirety: “No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff’s equity.”

In my experience, Virginia trial courts have traditionally adhered to the federal standard as set out by the Fourth Circuit. That meant Blackwelder until four years ago, and now Real Truth. I have the sense that more than one such state-court judge has fumed over the apparent refusal of the Supreme Court to issue an opinion that lets trial judges know how they’re supposed to decide such requests. Using the Fourth’s standard is a fallback position.

The title of this essay includes the question, “Why isn’t there one?” and I intend to answer that right here, right now.

First, keep in mind that the only rulings that make their way into Virginia Reports are those decided by the full court. The SCV may operate in divisions of three justices (these are sometimes called panels) or as a full court of four or more. Decisions of panels aren’t reported, because they aren’t the actions of the entire court.

Next, know that review of temporary injunctions is only available pursuant to Code §8.01-626, which authorizes a justice of the Supreme Court to review the grant or refusal of an injunction on an expedited basis. Technically, the statute authorizes that single justice to do as he or she sees fit; but in practice that isn’t what happens. Such petitions for review are always considered by a panel of justices, absent some overwhelming exigency, and I’ve never heard of one of those actually occurring. The panel decides the petition for review and issues an order, which is unpublished.

Remember that a temporary injunction will never be considered by the full court, because of the nature of the expedited-review process. The only way to get the full court to evaluate the award or refusal of an injunction is after a final judgment, and then it’s no longer a temporary injunction; it’s a permanent injunction. We do indeed have standards for the award of those; for a recent example, see Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44 (2008). But the temporary injunction is a hostage of its non-permanent status.

Do we need a fixed standard for the evaluation of temporary injunctions? While I understand the benefits of flexibility in some instances, I believe that a set of established rules would be significantly better for bench and bar than is the current state of uncertainty. The question becomes how we get such a standard. Here are the three ways in which I see that such a standardized decision-making matrix could be formalized:

  • The Supreme Court could elect to consider, as a full court of at least four justices, one petition for review of a temporary injunction, and decide to publish that decision. The opinion would set out the court’s guidance on how trial courts are supposed to evaluate such requests; the ruling could be as simple as agreement with Real Truth if the justices see fit.
  • The court could promulgate a rule, to be included in Part 3 of the Rules of Court, that expressly sets out the standard.
  • This part probably isn’t a good idea, but theoretically the legislature could enact a statute that lays out the standard. In my experience, when the legislature micromanages the courts’ decision-making process (as contrasted with matters of civil procedure, for example), you often get unintended consequences.