Federal Court to WI Chief Justice Abrahamson: Follow Federal Rules for TROs

This is somewhat surprising. As I tell my Remedies students, it is well established that under both constitutional law (see Carroll v. Princess Anne) and FRCP 65, one cannot get a temporary restraining order without giving notice to the other party unless you have a darn good reason for not giving notice (such as that the person would do the very thing you are trying to constrain before a court could issue a TRO). Under Rule 65, one also must certify what efforts, if any, one has made to give notice to the other side in seeking an ex parte TRO.  Judge Abrahamson, seeking to delay a voter amendment which would remove her as Chief Justice and substitute a chief Justice election instead, went to federal court but did not give notice or provide any reason for not giving notice.  (There is no good reason, especially because the amendment won’t be in effect and certified until April 29.)

This is not a ruling on the merits, and the Chief Justice could well win on the merits (an issue about which I don’t have a strong opinion).  But I find the litigation tactic of not giving notice odd and counterproductive.

(More at the Milwaukee Journal Sentinel).

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