September 5, 2007
Best We Can Do Is Get Involved Every Time
Using his Rhode Island Law Journal blog for a much needed function, Jon Pincince digs into the judicial side of teacher strike law. You can go there for some relevant quotations from School Committee of the Town of Westerly v. Westerly Teachers Association (1973), but the part that requires further exploration is this:
[This] does not mean that every time there is a concerted work stoppage by public employees, it shall be subject to an automatic restraining order. Rule 65(b) of Super. R. Civ. P. specifically states that no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts by affidavit or verified complaint that irreparable harm will result before notice can be served and a hearing held.
What is Rule 65(b) of Super. R. Civ., and how did it come about? Yes, Jon is correct that the 1973 court stressed that the solution should come to the legislature, but in the meantime, it appears to have given itself the role of arbiter and, in doing so, has done nothing to give the General Assembly a nudge in the political will. In true Rhode Island fashion, the legislature appears to have spent the past quarter century behaving as if the problem has been adequately resolved.
>>In true Rhode Island fashion, the legislature appears to have spent the past quarter century behaving as if the problem has been adequately resolved.
Problem? What problem? Each and every year the NEA's campaign support - direct cash and in-kind donations - keeps rolling in!
Taxes = teacher payroll = union dues = $ for Democrats. So what's your problem?
Signed,
Your Democrat Representative
Posted by: Tom W at September 6, 2007 12:33 AMJustin.
Rhode Island Superior Court Rules of Civil Procedure mirror the Federal Rules of Civil Procedure
Here is the Federal Rules of Civil Procedure as of 1 December 2006
“Rule 65. Injunction
(b) Temporary Restraining Order; Notice; Hearing; Duration.
A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.”
Rule 65 is a rule of general application that applies any time a party seeks emergency relief.
The "without notice" part of Rule 65 is what distinguishes a Temporary Restraining Order (TRO) from other types of preliminary injunctive relief.
If a party is seeking court relief against an opponent without giving the opponent notice and an opportunity to be heard, the court establishes a very rigorous standard of proof, and a justification for the lack of notice.
In fact, in every one of these teacher strike situations all sides have advance notice of the court hearing, attend, and participate in the hearing.
Posted by: brassband at September 6, 2007 6:13 AM