Wednesday, December 4, 2013

Preliminary Injunction: After the Black Tuesday REPRISE from 6/2013

Preliminary Injunction

Noun – an injunction, simply, is an order (or a writ) issued by the court that demands an individual or person(s) to act -  or restrains an individual or person(s) from acting.

For an historical example, recall the attempted desegregation in 1957 of the Little Rock Central High School in Arkansas.  Segregationist groups were able to convince a local chancellor/judge to issue an injunction against the admission of non-white students to the school in the coming fall based on their “concerns” for potential violence. 

Another injunction, delivered by Federal Judge Davies nullified the earlier writ with a command that forced the school to move forward with the planned integration and removed the National Guard brought in ostensibly to uphold law and order. 

Injunctions a born of other issues and conflicts, and are not a matter of legal right(s).  In fact, a request for an injunction can as easily be denied as approved.  The facts in each case determine whether an injunction will be issued, and the potential details for consideration (no puns intended) in the case of a not-so-distant pension bill cutting benefits will provide many. And now it's here.  We can expect Quinn's signature within a few days on the bill.  

There will of course be the central argument provided by Helen Kinney and Henry Green (thank you) in the 1970 Illinois Constitutional Convention: Article XIII, Section 5.

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.

While the General Assembly has acted with impunity in the cutting of benefits to the future public workers in Illinois, they have yet to pass a bill curtailing the benefits of active workers and current retirees.  That is, until Black Tuesday, December 3, 2013.  Indeed, much of the concern raised by those who practice law in the General Assembly has been, as Representative Lou Lang tried to remind the Chicago Tribune, “whether or not it is constitutional.”  Whether it’s legal.  The Tribune is not concerned with legality – or morality.  Evidently, in the end, Representative Lang conveniently disremembered his earlier stance on constitutional legality. 

Illinois Supreme Court
Bills that may emerge from the “new” summer pension working-group may be an amalgam of Madigan’s benefit-cutting bill SB1 or Cullerton’s union-backed bill SB2404.  In any case, any changes in the wording to SB2404 will provide an immediate refusal to endorse by the unions, and subsequent passage will likely produce a preliminary injunction.  Remember, however, even union-backed SB2404 will face a legal reaction by the Illinois Retired Teachers Association, and such a response might start as described below.  The passage of Madigan's last mutation of SB1 on Black Tuesday makes possible variable responses to the earlier union-backed SB2404 moot.  We know await Quinn's signing of the bill into law. 

Because of the enormity of impact in the passage of such a bill –one that will affect hundreds of thousands of Illinois families and millions of citizens – all the unions would likely seek a restraining order immediately.  “A Restraining Order is granted to preserve the status quo of the focus of controversy until the hearing on an application for a temporary injunction.  A Temporary Restraining Order is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury” ( ).  On the other hand, as the law's effect would take place on June 1, 2014, there may be enough time to beyond "temporary" immediately.    

The Restraining Order, even if Temporary, suspends further proceedings until a determination whether an injunction is permissible can be filed with the court.
Remember, Restraining Orders have life-spans, and in the case of a Temporary, such a provision can quickly sunset. 

During that interim, union officials would seek a Preliminary Injunction, which would act much like a Restraining Order, accept that such a writ would stop all proceeding until legal determinations could be made. 

 Such an injunction freezes or holds the conflicting matter in its present state to preserve the existing condition and  “ensures the ability of the court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case” (

Then, it’s the court’s turn to consider the legality of the proposed bill.

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