Vermont injunctions: the clerk sets the hearing, and one judge decides it

Vermont routes injunction applications the same way it routes subpoenas and discovery motions: broad access at the start, and a firm close once a judge has decided. The clerk, not the applicant, fixes the hearing.

The clerk sets the hearing

Rule 65(b):

The court may issue a preliminary injunction only on motion, and after notice and hearing at a time and place set by the clerk. The notice of hearing may be signed by the clerk or by the court which is to hear the matter. The movant must serve a copy of the notice of hearing with a copy of the motion upon all parties in the manner provided by these rules.

Three requirements, and the order of operations matters. Only on motion — a preliminary injunction is never granted on the papers filed for a TRO. The clerk sets the time and place, so the date is not something the parties agree between themselves. And the movant serves the notice of hearing together with the motion, in the manner the rules provide.

That last obligation is easy to overlook when the clerk has issued the notice: the clerk generates it, but getting it into the other side's hands is the movant's job.

One judge, once

Rule 65 closes with the provision Vermont applies across its rules:

When an application for an injunction or for an order or decree under this rule is made to one judge and has been acted upon by the judge, it shall not be presented to any other judge except by direction of the first judge because of that judge's necessary absence.

Access is wide at the outset — as with Vermont subpoenas, which may issue from the court in any county, and discovery motions, which may be made to any Superior Judge. But once a judge has acted upon the application, it goes to nobody else.

The only exception is not the applicant's to invoke: "by direction of the first judge because of that judge's necessary absence."

For an emergency application that is a real strategic point. There is no second attempt in front of a different judge, so the first presentation carries the whole case for the order.

Extending a temporary restraining order

Vermont's TRO provisions follow the familiar structure with two extension routes:

An order so extended may be further extended to the earliest available hearing date upon a showing by the plaintiff that the plaintiff has not, with due diligence, been able to obtain a hearing within the period.

and, at the hearing itself:

The court at the hearing may extend the order for a further period not to exceed 14 days, if necessary for the hearing and determination of the motion. No other extensions shall be allowed unless the party against whom the order is directed consents that it may be extended for a longer period.

The first extension is about due diligence — you show you could not obtain a hearing within the period despite trying. The second is about necessity, capped at 14 days, so the court can decide the motion.

After that the door closes: no further extension without the consent of the party the order is directed against. Neither of the first two is automatic, and both put the burden on the party holding the order.

Security

Security is required before a restraining order or preliminary injunction issues, in a sum the court considers proper, to cover the costs and damages of a party wrongfully enjoined. The exemption is narrow: "No such security shall be required of the State of Vermont or an officer or agency thereof."

Note what is not exempt — towns, cities and other municipal bodies are outside the exemption, unlike in North Carolina and Colorado, where counties and municipalities are covered.

The affidavit has to say what it rests on

Vermont keeps a sentence the restyled federal rule dropped:

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.

An affidavit may rest on information and belief. But where it does, it has to say which parts, and add that the affiant believes them true. Since a without-notice application is decided on those papers alone, the distinction is the court's only handle on how solid the showing is.

Maine and Ohio use the same sentence.

Evidence from the injunction hearing carries into the trial

Rule 65(b)(2):

Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

Two consequences worth planning around.

What you put in at the injunction hearing stays in. Admissible evidence received there becomes part of the trial record automatically. A witness called to support a preliminary injunction has, in effect, given trial testimony.

And the jury right survives. The provision is to be construed so as "to save to the parties any rights they may have to trial by jury" — consolidation and carry-over do not convert a jury case into a bench case.

For the party seeking the injunction, that argues for putting on the case you would put on at trial rather than a thinner version. For the party opposing, it argues for cross-examining as though the answers were permanent, because they are.

A short checklist

Applying:

1. File a motion. A preliminary injunction issues only on one.
2. Let the clerk set the hearing, and do not treat the date as negotiable between the parties.
3. Serve the notice of hearing with the motion yourself, in the manner the rules provide.
4. Make the first application count. No other judge will hear it once one has acted.
5. Show due diligence if you need the first extension — that you could not obtain a hearing in the period.
6. Ask at the hearing for the further 14 days if the court needs time to decide.
7. Be ready on security, and note that only the State and its officers and agencies are exempt.

If you are enjoined:

1. Check who set the hearing and whether you were served with the notice and the motion.
2. Test the extension. Both routes require a showing, and neither is automatic.
3. Withhold consent to any extension beyond the 14 days; without it, none is allowed.

Where these rules live

• V.R.C.P. 65 — Injunctions
• V.R.C.P. 6 — Time
• Responding to a Vermont complaint
• Vermont motion to dismiss
• Vermont subpoenas
• Vermont depositions

This page explains what the rules say. It isn't legal advice, and the substantive showing required for injunctive relief is developed in case law this site doesn't cover.