Maine injunctions: one judge decides, and oral consent is what releases it

Maine closes the door on shopping an injunction application from judge to judge, but it leaves the latch in a practical place: the first judge may release it, and may do so out loud.

One justice, unless that justice says otherwise

Rule 65(f):

When an application for an injunction or for an order or decree under this rule is made to one justice or judge and has been acted upon by that justice or judge, it shall not be presented to any other justice or judge except by consent of the first justice or judge which may be oral.

Compare Vermont's version, which lets a second judge take the matter only "by direction of the first judge because of that judge's necessary absence" — a narrow exception tied to absence. Maine's turns simply on consent, and adds that the consent "may be oral."

That is a practical accommodation for a small bar and a travelling bench. A telephone call to the justice who heard the first application is enough; no written order transferring the matter is required.

Two things follow. If you need a second application heard elsewhere, ask the first justice rather than filing and hoping. And if you are opposing one, ask whether that consent was obtained — the rule makes it a condition, however informally it may be given.

Note also the trigger: the bar attaches once the application "has been acted upon." An application filed but not yet decided has not been acted upon.

Statutory schemes are preserved

Rule 65(e):

These rules do not modify any statute relating to temporary restraining orders and preliminary injunctions in domestic relations actions, actions affecting employer and employee or any other actions where an injunctive proceeding is conducted according to statute.

Three categories, and the third is open-ended — any other action where an injunctive proceeding is conducted according to statute. So before applying Rule 65's machinery, ask whether a statute governs the kind of injunction you are seeking. In domestic relations and labor matters it very likely does, and elsewhere the question is worth asking rather than assuming.

That framing is the mirror image of Idaho's, which carves out employer-and-employee actions specifically. Maine carves out a category defined by how the proceeding is conducted.

The ordinary machinery

For everything the statutes do not govern, Maine's Rule 65 follows the familiar pattern: a temporary restraining order may issue without notice only on a showing of immediate and irreparable injury before the adverse party can be heard, with the applicant's certification of any efforts to give notice; a preliminary injunction requires notice; and security is required in the amount the court considers proper for the costs and damages of a party wrongfully enjoined.

The order itself must be specific in its terms, describe in reasonable detail the act restrained, and it binds the parties, their officers, agents, servants, employees and attorneys, and those in active concert with them who receive actual notice.

The affidavit has to say what it rests on

Maine adds a sentence to the without-notice showing that the federal rule does not have:

The verification of such affidavit or verified complaint shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.

So a Maine affidavit may rest on information and belief — but where it does, it has to say so, and say that the affiant believes the information to be true. An affidavit that blurs the line between what the affiant saw and what the affiant was told does not comply.

That matters most on the papers that get a TRO without notice, because nobody is there to test them. The drafting habit the rule asks for is simple: separate what you know from what you have been told, and label the second.

Vermont and Ohio carry the same sentence.

Press the motion, or the order goes

A TRO obtained without notice comes with an obligation:

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.

Three things in one sentence. The hearing is set at the earliest possible time. It takes precedence over everything except older matters of the same kind. And the party who obtained the order must proceed — if it does not, the court "shall dissolve" the order. That is not a discretionary sanction.

The other side does not have to wait for that hearing:

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

Two days, or less if the court says so. A defendant who has just been restrained without being heard should treat that as the fastest route back into court.

The surety is already in the case

Maine's security provision does something a bond alone would not:

A surety upon a bond or undertaking under this rule submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action.

By writing the bond, the surety consents to the court's jurisdiction and makes the clerk its agent for service. So a party who was wrongfully enjoined does not have to file a separate suit against the surety — it moves, in the same case.

The clerk's role continues: "The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known." Which is a reason to make sure the address on the bond is a good one.

A short checklist

Applying:

1. Ask first whether a statute governs — domestic relations, employer and employee, or any proceeding conducted according to statute.
2. Choose your justice deliberately. Once one has acted, no other will hear it without consent.
3. Get consent by telephone if you need a second justice; the rule says it may be oral.
4. Draft the order to stand alone, describing the conduct in reasonable detail.
5. Certify your efforts to give notice on any without-notice application.
6. Be ready on security, in the amount the court considers proper.

If you are enjoined:

1. Check whether the first justice consented if the application went to a second.
2. Ask whether the matter was actually acted upon — the bar attaches only then.
3. Check for a statutory scheme that may displace the rule's procedure.
4. Test who the order binds, and whether those people received actual notice.

Where these rules live

• Me. R. Civ. P. 65 — Injunctions
• Me. R. Civ. P. 6 — Time
• Responding to a Maine complaint
• Maine motion to dismiss
• Maine depositions
• Maine motion to compel discovery

This page explains what the rules say. It isn't legal advice, and the statutes governing injunctions in domestic relations and employment matters are not carried on this site.