Friday, January 31, 2014


 A declaratory judgment is usually sought to have the court declare the law on a specific issue rather than to seek monetary damages.  For example, if your insurer states prior to trial that they are going to deny any claim because of a policy defense, you may sue for a declaratory judgment to get the court to declare as a matter of law that the insurer’s policy defense is not valid.

In this situation there really is no need to call witnesses to testify to differing factual issues.  The facts are not in issue.  The only question is the purely legal issue as to whether the known legal provisions of the insurance policy insure someone for a known claim.   It is purely a question of law and that can be decided (declared if you like) by a judge without a jury.

The Hicks case [required reading] provides an example a suit for declaratory judgment.  The medical board adopted regulations allowing it to regulate ear piercing.  Beautician, Edna Hicks, filed suit for a declaratory judgment for a court decision as to whether or not the board's regulation was lawful. No facts were in dispute.  The only question before the court was whether the board's regulation conflicted with statutory law. The state supreme court sided with Hicks and declared the medical board's regulation invalid.

TRO and Injunction

A Temporary Restraining Order (TRO) is an emergency, short-lived injunction that orders a party to stop a particular action until the issue can be heard more fully and the court can decide whether or not to issue an injunction, barring action indefinitely.  If, for example, your mother’s physician is going to order your mother’s ventilator turned off because it is “futile care,” you may ask for an emergency TRO to stop him until the court can hear the matter in full and issue a permanent injunction preventing him from turning it off.  Ignoring a TRO or Injunction can be perilous.  It amounts to ignoring a court order and the violator can be punished for contempt of court.  If a subsequent hearing supports the petitioner's argument the TRO can be converted to a permanent injunction.

A federal court entered a TRO in the case of Jahi McMath to prevent medical staff from ending life preserving treatment after deciding she was brain dead.  The TRO gave the family time to assess their options before the child was dead dead instead of just brain dead.

Habeas Corpus

Habeas Corpus is an ancient remedy that is mention in the Magna Carta (1215) and is still a robust method of challenging the legality of the involuntary confinement of an individual.  If you think you are being wrongly held in a mental institution, your means of challenging your detention is to bring a Habeas Corpus action.


Guardianship proceedings are for the purpose of appointing a competent guardian to look after the affairs of one who is deemed legally incompetent, such as an infant without parents or an elderly person whose senility has rendered him incapable of looking after his own affairs.  Actress Amanda Bynes is a public figure who recently had her mother appointed as conservators (guardians) because of her erratic behavior.

Civil Commitment

Civil Commitment proceedings usually are for the purpose of legally detaining someone against his will in a non-criminal action.  For example, a person who has become a danger to himself or others may be committed to a mental institution against his will.


A person with a dangerous and communicable disease may be quarantined from contact with the general public against her will. 

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