injunction & mandamus
Injunction and mandamus proceedings involve similar but not identical requests for extraordinary relief from the courts. Such relief is extraordinary because the situation and the evidence must be very compelling in order to convince a court to issue the type of relief requested in those proceedings. The relief requested usually involves an order from the court compelling or prohibiting a person, agency or company from performing a certain act.
An injuction is defined by the Maryland Rules as an order from the court mandating or prohibiting a specific act. There are three principal types of injunctions defined by Maryland law.
1. Temporary Restraining Order (TRO) : A TRO is a temporary order that is typically issued at the outset of a case before there is opportunity for a full adversary hearing involving the admission of evidence and testimony.
The court will only issue a TRO if it clearly appears from specific facts shown by affidavit or other statement under oath that immediate, substantial, and irreparable harm will result to the person seeking the order before a full adversary hearing can be held.
This remedy is sought only when severe irreparable harm is imminent; so that if the court does not act to prevent a specifically identified harm there may be no remedy available. For example, a court might issue a TRO to prevent a developer from bulldozing the Wye Oak the next day.
A TRO is temporary because it expires automatically after a short time established by law. The restrained person or entity can also apply for a modification or dissolution of the order on two days’ notice to the person requesting the TRO or earlier in the discretion of the court.
The person seeking the TRO will be required to post a bond in an amount set by the court before the TRO goes into effect. The bond may be waived by the court in limited circumstances defined by law.
2. Preliminary Injunction: A preliminary injunction is a temporary order that is typically issued at the outset of a case after there is opportunity for a full adversary hearing (which is like a mini-trial in which evidence and testimony may be offered) but before a final determination on the merits of a case which usually follows a trial.
The Court may issue a temporary injunction to maintain the status quo after weighing evidence of: (1) the likelihood of irreparable harm to the person seeking the preliminary injunction if it is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that the person seeking the preliminary injunction will succeed on the merits; and (4) the public interest. Failure to prove even one of those factors will usually preclude the issuance of a preliminary injunction. Requests for injunctions authorized by statute may require consideration of additional or different factors until the trial is concluded.
A preliminary injunction is sought only when severe irreparable harm is likely to occur prior to a determination on the merits; so that if the court does not act to prevent that harm there may be no remedy available. For example, a court might issue a preliminary injunction to temporarily prevent a former employee from publicly disclosing information that an employer claims constitutes confidential trade secrets.
A preliminary injunction is temporary because it expires when there is a final determination on the merits. The restrained person or entity can also apply for a modification or dissolution of the order.
The person seeking the preliminary injunction will be required to post a bond in an amount set by the court before the injunction goes into effect. The bond may be waived by the court in limited circumstances defined by law.
3. Permanent Injunction: A permanent injunction is an order that is typically issued at the conclusion of a case after there is opportunity for a full adversary hearing and after a final determination on the merits is made.
The Court will issue a permanent injunction only if it is satisfied by the evidence that the party seeking the injunction will suffer irreparable harm without its issuance.
This extraordinary remedy is usually sought only when irreparable harm will result so that if the court does not act to prevent a specifically identified harm, there may be no remedy available. For example, a court might issue a permanent injunction prohibiting a former employee who signed a non-compete clause from competing with his former employer for a given time period stated in the employee’s contract.
It is called permanent because it finally resolves the dispute; but that does not mean that the order lasts indefinitely. As with the example above, the duration of the order will depend upon the terms of the order and the circumstances of a given case.
A writ of mandamus is an order from the court mandating or prohibiting a specific act in certain narrowly defined circumstances. This extraordinary remedy is usually utilized to require government agencies and officials to do or not do something and to provide opportunity for judicial review when there are no other avenues of review available. It is not an appropriate method for challenging legislative actions, enforcing private contracts and or appealing a judge’s decision.
In order to seek a writ of mandamus to compel a government official or agency to do or not do a specific act, a person typically must demonstrate: (1) the existence of a clear and undisputable personal or property right of the person seeking a writ of mandamus; (2) the existence of a government body or agent's ministerial, non-discretionary duty or the abuse of power if the duty is discretionary; and (3) the absence of any ordinary adequate procedure for review, legal remedy or alternative form of relief.
A petition for writ of mandamus can be utilized in a number of different situations involving government action or inaction. For instance, it could be filed for the purpose of compelling a government agency to disclose records that the law expressly requires be made available for public inspection; to conduct a hearing; and to come to a decision on a particular matter in which an agency has discretion as to how to act but has refused to act.
A petition for writ of mandamus can also be used to secure a circuit court's review of an administrative agency's adjudicatory decision where no agency code or other law provides for such review.
Finally, in some limited circumstances involving clear and undisputed rights, a writ of mandamus could be issued to, for example, compel corporations to perform a specific duty imposed by law; seat a person as an officer of the corporation; force an election of officers as required by by-laws; register a transferee’s ownership of stock; permit inspection of corporate books and records; and reinstate illegally expelled members.
Since injunctions and writs of mandamus are only available in limited circumstances and usually involve proceedings not otherwise required in routine circuit court cases, obtaining those forms of relief is usually more costly. For those reasons, we counsel our clients thoroughly on the procedures, costs, risks and potential benefits of such proceedings.
In most situations, there are more cost-effective means of accomplishing a client’s objectives. However, there are some cases where there is simply no other means of preventing or stopping the damages or for obtaining judicial review.
The above is a broad and general discussion of requests for writs and mandamus. An attorney will be able to advise you as to how those different types of relief apply to your particular case as well as any additional methods to accomplish your objectives.
A lawyer has years of training and expertise in the law. Consulting a lawyer will help you analyze your options under the facts of your particular case to help you obtain the best possible result.