Massachusetts GOP Challenge To Senate Appointment To Get Hearing -- But No Ex Parte Restraining Order

Kleefeld is correct that a motion for a temporary restraining order was not filed in this case. I don't know if Massachusetts permits ex parte TROs -- that is, a motion for a temporary injunction without notice to the other side -- but in federal and most state courts, such an ex parte motion is used in all but the rarest of circumstances (the FTC uses them to avoid noticing bad companies, because noticing them will give them the chance to move monies gained from fraud offshore before a hearing can be held -- a situation I am well familiar with, having been at the receiving end of an ex parte order in my previous incarnation as a civil litigator in private practice).

But the story is misleading. No, the GOP did not file an ex parte TRO or, for that matter, any other TRO. A TRO is good for 10 days, generally, until the court can hold a hearing on a preliminary injunction. The difference between a TRO and a PI is that a PI, if entered, lasts until the case is adjudicated. A TRO is truly for very short emergency relief until the Court can hold a PI hearing.

Well, it looks like from the docket the GOP filed a Complaint and a motion for a preliminary injunction.

So the hearing tomorrow is on the PI.

Things to watch for: If the judge denies the PI, then the case is all but over. A plaintiff has to show four things to prevail, generally: (1) likelihood of success on the merits, (2) irreparable harm, (3) that the hardships to the defendant are outweighed by the need for an injunction, and (4) that the PI weighs in favor of the public interest.

The last two elements are virtually afterthoughts, and cases rarely turn on the balancing of hardships.

The real meat is in the first two elements -- likelihood of success and irreparable harm.

Here I doubt there is much debate over irreparable harm: if Kirk is sworn in, and no injunction is issued, then he will be able to serve in a temporary capacity during a period before trial can likely be held. So that one's fairly easy.

The real tell here is on likelihood of success. If the judge denies the PI, then it is because there is no likelihood of success. If that happens, the game is all but over, because judges -- and this case would be decided by a judge, not a jury -- has already determined the GOP is not likely to win. Judges rarely reverse course after denying a PI by entering an injunction after trial later.

Of course, the judge could find likelihood of success but no irreparable harm, but that would be truly goofy.

So, this case will be decided tomorrow for all intents and purposes by a judge in examining the law.

Finally: judges hate these political questions. They despise them. And they generally defer very heavily to legislative action signed into law, particularly where appointments are concerned.

(Poor Marbury not withstanding.)

At this point, the only issues I see are US Senate politics. The court action may simply be intended to give the Senate Republicans enough political cover to put a stop to Kirk's swearing in. In that respect, a determination by the MA Court that the appointment does comply with MA law would be helpful.