On February 10, 2017, in a per curiam decision, the Ninth Circuit denied the Federal Government’s emergency motion for a stay pending appeal of a temporary restraining order (“TRO”). Procedurally, in State of Washington, et al., v. Donald J. Trump, et al., No. C17-0141JLR (W.D. Wash. 2017) (“State of Washington v. Trump”) Judge Robart of the United States District Court in Seattle, Washington issued a TRO. The TRO temporarily stayed (i.e., stopped) President Donald J. Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorists Entry into the United States” (“Executive Order”). Most recently, the Federal Government asked the Ninth Circuit to undo Judge Robart’s decision, which the Court denied. Importantly, as a result of legal procedure, neither court has ruled on the constitutionality of the Executive Order. Instead, the courts have been tasked with analyzing the underlying legal elements a moving party must demonstrate when seeking a TRO.
While Judge Robart and the Ninth Circuit’s decisions were issued at the federal level, the legal underpinnings behind a TRO at the state court level are nearly identical. For example, both decisions rested on the same principals of law that apply in New Jersey Chancery Courts. New Jersey Chancery Courts are guided by the New Jersey Supreme Court’s decision in Crowe v. De Gioia, 90 N.J. 126. In Crowe v. De Gioia, the New Jersey Supreme Court found that to issue a temporary injunction (e.g., a stay as in State of Washington v. Trump), a moving party must demonstrate four criteria: (1) irreparable harm; (2) likelihood of success on the merits; (3) the law is well-settled; and (4) the balancing of the equities weighs in favor of the issuance of the injunctive relief.
Comparatively, the United States Supreme Court in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) held that to issue a temporary restraining order a moving party must demonstrate (1) irreparable harm; (2) likelihood of success on the merits; (3) the balancing of the equities weighs in favor of the issuance of injunctive relief; and (4) the injunction is in the public interest. Let’s look just at the irreparable harm element.
At the District Court level, it was the State of Washington’s burden to demonstrate irreparable harm to the State. Under the “irreparable harm” prong of the Winter test, Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and mission of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing.
State of Washington v. Trump, No. 17-CV-00141-JLR (W.D. Wash. 2017), pp. 4-5.
Before the appeals court, it was the Federal Government’s burden to demonstrate irreparable harm. One way of looking at this burden is that the Federal Government had to show that if the Ninth Circuit did not stay Judge Robart’s TRO then there would be irreparable harm to the country. On this element the Ninth Circuit held:
We therefore conclude that the States have alleged harm to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
State of Washington v. Trump, No. 17-35105 (9th Cir. 2017), p. 12.
In other words, the Ninth Circuit found that there will not be irreparable harm by failing to temporarily stay Judge Robart’s TRO.
Next, Judge Robart will hear the State of Washington’s application for a preliminary injunction. Notably, while a TRO is issued only for the time between the date of the TRO and the preliminary injunction hearing, a preliminary injunction lasts until a trial can be held which would decide the merits of the case. The eventual results of the case will determine if the injunction will be permanent. Legally, however, the criteria for a preliminary injunction and a TRO are the same. Accordingly, on the return date of State of Washington v. Trump, Judge Robart will again be tasked with ruling on the propriety of the Executive Order through the same analysis discussed above. Going forward, look for Judge Robart to expand on his findings regarding “irreparable harm.”
About the author: Matthew M. Nicodemo, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Matthew is a former Chancery Court law clerk and focuses his practice on commercial and estate litigation, business law, and real estate.