International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

BIBLIOGRAPHY

Butler, David, and Austin Ranney, eds., 1978. Referendums: A Comparative Study of Practice and Theory. Washington, DC: American Enterprise Institute for Public Policy Research.

Cronin, Thomas E., 1989. Direct Democracy: The Politics of Initiative, Referendum, and Recall. Cambridge, MA: Harvard University Press.

Kehler, David, and Robert M. Stern, 1994. "Initiatives in the 1980s and 1990s". The Book of the States 1994-95. Lexington, KY: Council of State Governments.

Magelby, David B., 1984. Direct Legislation: Voting on Ballot Propositions in the United States. Baltimore: Johns Hopkins Press.

McGuigan, Patrick B., 1985. The Politics of Direct Democracy in the 1980s: Case Studies in Political Decision Making. Washington, DC: Free Congress Research and Education Foundation.

Schmidt, David D., 1989. Citizen Lawmakers: The Ballot Initiative Revolution. Philadelphia: Temple University Press.

Zisk, Betty H., 1987. Money, Media and The Grass Roots: State Ballot Issues and the Electoral Process. Newbury Park, CA: Sage Publications.

INJUNCTION. A court order requiring a person to refrain from a particular act or course of conduct or, in more limited circumstances, requiring a person to perform a particular act or series of acts.

This remedy grew out of the English Chancery proceedings, and is a primary remedy for courts exercising equitable powers in the American system. An injunction can be issued, generally speaking, to prevent an injurious course of conduct, particularly if the person who would be injured would not have an adequate remedy at common law in the form of money damages.

The purpose of an injunction is to preserve matters in status quo and to restrain actual or threatened acts that could cause irreparable harm. Because an injunction is a preventive remedy, the injunction is not intended to compensate or to punish a party for actions that have already occurred.

An injunction may be classified according to the type of command contained within the injunctive order, commonly referred to as prohibitory or mandatory injunctions.

Prohibitory injunctions, which are the most common, order a party to abstain from performing a certain act or series of actions. Such injunctions are designed to maintain the status quo and may be utilized to disrupt or avoid an ongoing wrong or to prevent a contemplated or threatened action from occurring. The person seeking an injunction must show that the other party's action threaten a legal right and that the threatened damage to this right would be irreparable and that no legal remedy exists to make up for the injury in the form of money damages.

A mandatory injunction requires a party to perform a positive act that would alter existing circumstances. In most cases, mandatory injunctions are utilized to eliminate wrongful existing conditions that are likely to continue. Courts have demonstrated an aversion toward mandatory injunctions, largely because injunctions are designed to prevent future wrongs rather than to remedy wrongs that have already occurred. Courts are also reluctant to issue orders that require ongoing judicial supervision, which would be the case with most forms of mandatory injunctions. Accordingly, the standard for granting a mandatory injunction is higher than that required for issuing a prohibitory injunction.

Injunctions also are categorized according to their duration, either as temporary or permanent. A temporary injunction, also called a preliminary injunction, is issued before trial on the merits on the controversy. The purpose of a temporary injunction is to maintain the status quo and to preserve the subject matter in controversy until the merits of the case are decided. In emergency situations, a court can grant a temporary restraining order, without a hearing, to avoid immediate, irreparable harm. Courts have broad discretionary power to decide, in accordance with principles of equity and justice, whether a temporary or preliminary injunction should be granted. However, courts do inquire into several issues-the relative convenience or inconvenience a temporary injunction would place on each party, the existence and adequacy of a complete remedy of common law, and the nature, extent, and irreparable character of the injury that is sought to be remedied. Moreover, persons seeking a temporary or preliminary injunction must show that they will probably prevail on the merits of the case.

If the person seeking a temporary injunction later fails to succeed in the trial of the merits of the case, the temporary or preliminary injunction will be dissolved. In situations in which the person succeeds in the merits of the case, the terms of the preliminary or temporary injunction may be incorporated into a court order granting a permanent injunction.

A permanent injunction is granted or denied after a full adjudication on the merits of the suit.

In public policy context, injunctive relief is sought if a litigant challenges the validity of statute, rule or ordinance. For example, in Weaver v. Reagen, 886 F. 2d 194 (8th Cir. 1989), the plaintiff, an AIDS patient, challenged a state medical assistance (Medicaid) rule denying AIDS patients the drug AZT. They found that the state rule was contrary to federal law and granted an injunction requiring that the drug be provided to AIDS patients.

Although it is common to have a preliminary or temporary injunction precede a permanent injunction, a permanent injunction may be granted regardless of whether or not a preliminary injunction was granted, denied, or not sought.

Injunctions are enforceable by contempt of court proceedings. These proceedings allow the court the power to enforce its orders. A person found to be violating an injunctive order may be subjected to imprisonment, fines, or other financial penalties.

MICHAEL A. WOLFF

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International Encyclopedia of Public Policy and Administration - Vol. 2
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