How to Handle a TRO hearing ...

T. Devon Sharkey, Fri 30 Jan 1998

From: tdevon@mindspring.com (T. Devon Sharkey)
Newsgroups: alt.religion.scientology
Subject: How to Handle a TRO hearing...
Date: Fri, 30 Jan 1998 18:06:57 GMT
Message-ID: <34d20912.88891618@news.mindspring.com>

If indeed the Church of Scientology is engaging in a new strategy of attempting to enjoin organization picket attempts, the readers here may find it helpful to know what strategies they can employ if they find themselves in court as pro se litigants. All of the following concerns general principles of equity and does not deal with any specific state. It is not legal advice, and I do advise you to retain counsel if you should find yourself in court. That being said ...

Injunctive relief sounds in equity; it is asking the court for extra-ordinary relief. Courts have a great deal of discretion in granting equitable (as opposed to legal) relief, but all the same they are, in general, reluctant to grant it.

A litigant seeks a temporary restraining order (TRO) in a somewhat expedited hearing, the full hearing to determine a final injunction is usually set for trial at some future date. To successfully obtain a TRO a litigant must generally show:

1. There is no adequate remedy at law. Meaning, money damages are insufficient to address the injury which has, or will occur.

2. The plaintiff would suffer irreparable harm if the activity was allowed to continue;

3. Plaintiff must show a high likelihood of success when it comes to a full blown trial. This point cannot be overstated, or overstressed to the Court, since these cases generally have very little merit.

4. A bond in many cases is required by the party seeking the TRO. It may be difficult to determine an amount, but if the judge seems to be leaning towards granting the TRO, what the hell, ask for it. Use some expenditures you have made, or some loss you will likely face. This bond is paid to the Court pending final outcome.

A litigant generally has to give notice of a TRO hearing to the opposing party. If a litigant proceeds ex parte (without your presence) they usually have to show that they could not find you and show what good faith efforts were made to locate you. If a TRO is granted in an ex parte hearing most states have a means to obtain a full adversarial hearing in fairly short order.

In First Amendment jurisprudence there is a doctrine known as "prior restraint." Prior restraint is the stifling of speech by injunction before the speaker has had the opportunity to speak. The Supreme Court has spoken out against prior restraints very strongly in a whole body of decisions. Similarly, equity does not allow injunctions to prevent defamation, trade libel, invasion of privacy, or other cases which touch upon the freedom to speak.

In short, the law prefers you to speak, and then face the consequences afterwards rather than restrain the speech before it is spoken. If you find yourself in Court, use the term "prior restraint" as frequently as possible where relevant. This serves doubly to show that 1) the case lacks merit and will ultimately be unsuccessful, and 2) well, it's a prior restraint, and those are forbidden.

Equity also has a special set of defenses, two of which are of special note:

1. Unclean Hands: The maxim is; one who seeks equity must first do equity. This could include prior dealings where the Church has acted towards the defendant in an inappropriate fashion. The prior dealings do not need to have risen to the level of fraud or other actionable wrong, it is sufficient that the whole thing leaves a bad taste in the Court's mouth. This is not as readily available as one might think, and should not be a grand hearing displaying the wrongs of Scientology. Instead, it should be limited to circumstances surrounding the current planned picket, or past pickets.

2. Laches: Laches means that the action is barred by delay. The best example would be the Church attempting to block a picket at the 11th hour when they knew several weeks in advance that one was planned. By waiting this long, when they had ample opportunity to bring this case earlier, they should be barred from bringing the case now.

In conclusion, equitable relief is indeed special relief, and is only granted where deserved. The Court does have a great deal of discretion in granting it, but where the relief touches upon the first amendment the Court's discretion is severely hobbled by the doctrine against prior restraints.