Why Wasn’t the TRO Granted?
Amazing game yesterday, but the reasoning for the non-decision on Michigan’s and Harbaugh’s temporary restraining order (TRO) didn’t get much discussion.
Every insider and their mother and many MoGoLawyer types were certain it would be issued before the game. But it obviously wasn’t.
What does this mean? Does it suggest the case for the TRO wasn’t compelling enough to get the judge to act immediately? Was the judge just asleep? Why is it being deferred a whole week? Seems to defeat the point of a TRO.
November 12th, 2023 at 9:33 AM ^
And it’s not going away this year. The fans at away games will be chanting that for years to come.
Just forget about it.
November 12th, 2023 at 11:01 AM ^
True, and this is to say nothing of my own emotional anguish brought on by the hard cold hand of the Big Ten.
November 12th, 2023 at 9:02 AM ^
We aren’t asking for favoritism? Disappointing
November 12th, 2023 at 8:13 AM ^
"Open and shut" That's what I want to believe, but given the denial of an ex parte grant by the judge, I am not so confident. It's impossible to know how the folks in the black robes are going to rule, even when all signs and circumstances appear to favor one side.
November 12th, 2023 at 8:38 AM ^
silver lining: the TRO hearing on friday might end up being the equivalent in practical terms of the preliminary injunction which is a longer-lasting order. the court may figure that giving the defendants a reasonable shot and (hopefully) then ruling in our favor sets a nearly unchangeable pattern for the case.
far from certain, but hopefully wisdom is at the controls.
November 12th, 2023 at 8:51 AM ^
Agreed. I haven’t been able to keep up on all the “which judge is handling this case” back and forth but if it’s Kuhnke, she’s going to be prepared. I said in another thread that I tried a breach of contract/employment case in front her to verdict a few years ago right before the Covid shutdowns. She was short tempered but fair. Always read everything. That’s a function of I think Washtenaw just being less busy than Oakland and Wayne. But she knew the facts of the case as well as the lawyers did. I know some people keep saying not granting the TRO ex parte is akin to denial but I don’t think so. I’ve had it happen where the judge doesn’t want to enter my TRO ex parte but I’ve won on the PI hearing or stipulated to a PI before the hearing (that won’t happen here). I guess all I’m getting at is we can’t read too much into not entering an ex parte order. No one knows anything.
November 12th, 2023 at 9:10 AM ^
Very cool that you’ve had experience in front of this particular Judge. That gives so much insight into behavior, work ethic, hopefully ultimately work product and decisions in this case.
November 12th, 2023 at 9:23 AM ^
I've known Carol Kuhnke for 20 years; since before she became a judge -- for which I supported her. She is smart, industrious, and fair, which may have worked to our disadvantage Friday, but should help us next week.
November 12th, 2023 at 9:40 AM ^
Very cool. Does she know anything about football? Not asking if she is a Michigan fan or any sort of knowledgeable follower of the sport.
Would she understand the very basics of football? I think it could be important because Petitti put in some really stupid supporting points (player safety, signals being semi-permanent) that a knowledgeable follower of football would quickly dismiss.
If player safety was really at stake then CFB would have instituted helmet communication years and years ago.
November 12th, 2023 at 12:22 PM ^
And they would have a rule against decoding signals. (Still bugs me but I don’t know how you steal something that’s being shown in plain view.)
November 12th, 2023 at 9:41 AM ^
Again if it was Judge Kuhnke hearing the TRO request, one point that must have crossed her mind, especially after the BIG filed an appearance, is the media/public reaction to an immediate order from a home-town court allowing Jim to coach --- especially when the "irreparable harm" element might be an uphill battle. She really had to let this matter play out, at least for a week, to ensure fairness to both parties (even though similar courtesies were not extended to our University). Further, my guess is that her decision wasn't made in a vacuum; she consulted with her fellow judges and a thorough discussion preceded her ruling. Go Blue.
November 12th, 2023 at 9:44 AM ^
I know some people keep saying not granting the TRO ex parte is akin to denial but I don’t think so.
It's a denial of the TRO. Michigan sought the TRO so that Harbaugh could coach on Saturday. Judge Kuhnke did not issue the TRO, therefore the Big Ten suspension remained in effect and Harbaugh could not coach.
But I agree with you that the denial of the TRO does not necessarily mean M will not prevail at the preliminary injunction hearing on Friday. I too have had cases in which courts have declined to grant a TRO but have nonetheless ruled in my client's favor at the PI stage. If the reason she denied the TRO was because she doesn't think M has a strong case on the merits then that signals it will be an uphill battle on the PI. But if it was just because the case was too complicated and she didn't feel like she had enough time to consider everything and rule, that wouldn't necessarily suggest anything negative about M's chances at the PI (even though I think that is very poor judging since the entire point of the procedure is to get a quick order to preserve the status quo when the court needs more time to decide).
November 12th, 2023 at 10:40 AM ^
Not accurate.
If there was a denial, there would be an order issued that said somewhere in it, "the application for a TRO is hereby denied".
And I have not read the application, but I would think the relief requested was to stay the entirety of the Big Ten's action, not "to allow JH to coach on Saturday"
November 12th, 2023 at 10:12 AM ^
The Detroit News article said it was Judge Tim Connors that declined to make a ruling Saturday.
November 12th, 2023 at 9:13 AM ^
I agree with XM. Having the issues briefed by both sides and a week for all to prepare probably obviates the need for a 10 day hearing on the same issues that would have occurred had the TRO been issued yesterday.
November 12th, 2023 at 7:54 AM ^
Either the judge hates America, or they are following whatever rules go around making a decision on a TRO. I wouldn't be getting my legal advice from anybody who posts on a blog though, so keep that in mind.
November 12th, 2023 at 7:57 AM ^
Come on now. Don't be trashing all lawyers who post here. They are giving their best opinion but no one can predict what a judge will do. It is not like this is a life or death situation and idiots look for help from WebMD. This is still just sports after all.
November 12th, 2023 at 8:04 AM ^
"It is not like this is a life or death situation"
"This is still just sports after all."
I assume this is what the judge thought.
But it is so much more than just sports. Our entire existence is defined by this.
November 12th, 2023 at 9:20 AM ^
So she/they saw right through the bogus claim of player safety?
November 12th, 2023 at 9:08 AM ^
I’m an admitted idiot who looks for advice on WebMD
November 12th, 2023 at 8:05 AM ^
I can't believe how inept the commissioner is. How do you ban Harbaugh from coaching against OSU??? How? This game is almost guaranteed to have the highest viewership.
November 12th, 2023 at 9:03 AM ^
And you think ratings for the OSU game will be lower if Harbaugh’s case is still in the news daily and being fought in the court of public option?
Mercy child, mercy.
November 12th, 2023 at 9:33 AM ^
I can guarantee you the ratings will be lower without Harbaugh.
November 12th, 2023 at 1:19 PM ^
Uh, no
November 12th, 2023 at 8:05 AM ^
Unless I'm wrong, one of the requirements for the granting a TRO is a finding of "irreparable harm." I'm not sure we can make a truly compelling case that not having Harbaugh on the sidelines for three games causes "irreparable harm." (Especially as, indeed, we beat Penn State without him).
Doesn't mean we can't win an eventual lawsuit against the Big Ten and obtain damages, of course. But claiming that the University of Michigan (which is the entity filing the lawsuit, I believe — not Harbaugh personally) will suffer irreparable harm from this particular penalty, especially as their head coach is still allowed to recruit and coach during the week, might be a tough road to hoe.
November 12th, 2023 at 8:19 AM ^
Harbaugh reportedly is also joining the lawsuit
November 12th, 2023 at 8:21 AM ^
Watch Sherone Moore's post-game interview and tell me no irreparable harm was done.
The mental health of these kids and the coaches would be taken into consideration by any competent judge.
November 12th, 2023 at 8:38 AM ^
Just like in the first three games of this season, the strain of missing Jim on the sideline was taking it's toll. It was Michigan's sloppiest game to that point, vs BGSU.
Add that to the exponential strain caused by the entire sports world during these past now 4 weeks has got to be a major factor. So yes, the emotions all came out after the PSU game. I don't think this team can withstand 2 more weeks of this sh!t.
November 12th, 2023 at 8:47 AM ^
No, under the law this would count as irreparable harm. Michigan will win on that issue. The real question is whether Michigan will win on 'likely to succeed on the merits." Probably. But...no 100% guarantee.
November 12th, 2023 at 9:11 AM ^
While it certainly not life or death, irreparable harm seems obvious. They aren’t replaying these games.
November 12th, 2023 at 9:49 AM ^
Harbaugh is a plaintiff and denying him the opportunity to coach his team is irreparable harm.
There is also irreparable harm to the university in being denied the ability to have their head coach participate in the games.
Keep in mind that "irreparable harm" is a legal term that basically means some kind of harm that cannot be easily rectified by the payment of money. It doesn't need to be life or death.
November 12th, 2023 at 10:42 AM ^
Well-stated. For sure.
November 12th, 2023 at 8:06 AM ^
If the judge wanted to sign the TRO, she could have. She probably did not want to based on the time to hear from both sides and examine the evidence. This judge may not grant one. I'm not sure if M could go to another court?
November 12th, 2023 at 8:40 AM ^
A TRO like this is extraordinary relief. I think it should have been granted immediately because the potential harm is obvious and all the reasons the B1G have for “needing” to take action now are not remedied at all by the suspension. So on balance, we had a very strong position. However, taking a step back, if this Judge isn’t a huge football fan, she probably looks at this dispute and says, “what’s the big deal? They still get to play, which would only be the truly “irreparable” damage the B1G could inflict. So I am not going to make a one sided decision on a few hours notice and I going to hear from both sides before I make a decision.” And a part of me appreciates that.
November 12th, 2023 at 8:52 AM ^
Isn’t the whole point of a TRO that you don’t need to wait to hear form the other side?
November 12th, 2023 at 9:00 AM ^
Yes, which is why they’re very hard to get ex parte. I filed one last year and the judge hauled me in on a status conference and says “I see by the emails attached you’ve been negotiating with them and they have counsel. I’m not entering this. Serve them and get back to me and we’ll have another conference to set a schedule on a PI.”
November 12th, 2023 at 12:31 PM ^
Another purpose of a TRO is to preserve the status quo. By failing to rule on the motion, the judge permitted the Big Ten to alter the status quo with its hastily imposed penalty.
November 12th, 2023 at 8:09 AM ^
I won't give you any legal reasons (IANAL) but prior to the decision I asked a couple lawyers (not MGo ones) about it. Here's what I got back:
- TROs are very hard to get. Their predictions were we would not get it.
- The bad faith timing of the suspension has no legal bearing. It's just a bad look.
The point of this is not even to say they're right and everyone else was wrong (although in hindsight, that is the case).
The point is, as we've seen even just on this blog, that lawyers have differing opinions ALL THE TIME. In fact, it's the exact nature of their job. And, as we have been warned ad nauseam, judges are just people. They are not necessarily good, smart, or well-meaning people. Everything always depends on the judge.
November 12th, 2023 at 8:40 AM ^
I, Claudius--The fascinating faux-autobiography of Tiberius Claudius Caesar Augustus Germanicus, pendantic club-footed stammerer and emperor of Rome from 41 to 54 AD.
I, Robot--The groundbreaking science-fiction collection that explores artificial intelligence and introduces the Three Laws of Robotics.
IANAL--Either the tale of a fanatically neat caveman with a fondness for dirt roads or the world's worst acronym.
November 12th, 2023 at 9:05 AM ^
I think IANAL would go down as one of the world’s worst acronyms (right up there with Arizona Neurological Institute, which actually did exist). But then again, we are talking about lawyers here (I keed, I keed!).
November 12th, 2023 at 8:54 AM ^
MGo-lawyer here...
Yeah, it is true that TRO and injunctions are hard to get as a general matter. But that is just another way of saying that often it is hard for the party seeking the TRO to satisfy the four elements.
And, while true as a general matter, that is not very useful information in any given case. The real question is whether, GIVEN THE FACTS OF A PARTICULAR CASE, it will be hard to satisfy the four elements.
So unless your lawyer friends have spent hours studying the facts, the Big Ten rules, the Michigan letter, Petitti's letter (doubt they did all of that), they really have no real basis to express a useful opinion on whether Michigan is likely to get the TRO on Friday.
November 12th, 2023 at 9:55 AM ^
That's my view as well. I thought M had a very good chance at the TRO because I thought they easily satisfied the irreparable harm and balance-of-equities prongs and had a pretty strong argument on the merits. But I was nervous about whether M actually would get it because the case on the merits is nevertheless murky and I am familiar enough with the legal system not to trust it.
Hopefully M can score the PI though.
November 12th, 2023 at 11:53 AM ^
Like I said, my point wasn't to say they are right and everyone else was wrong, or that their lawyerin' is better than all the Mgolawyers lawyerin'.
I was just responding in a general sense to the OP who wanted to know how this travesty could have befallen us since any right-thinking person had said it was a slam dunk. My point was, as even people on this blog had told us, nothing is actually a slam dunk with this stuff.
Though they stumbled into being correct about last Friday, I didn't ask them about this Friday. And, to your point, they haven't studied the case in any great detail.
November 12th, 2023 at 8:18 AM ^
The one thing this board has been largely ignoring is that the sportsmanship rules have some really explicit language that give the commish broad powers to do basically whatever the fuck he wants. We're trying to skate on that this is a rules procedural and not a sportsmanship issue, and the judge wants clarification on that.
November 12th, 2023 at 8:56 AM ^
https://mgoblog.com/diaries/legal-analysis-big-ten-rules-don%27t-allow-insta-punishment-michigan
Suggest you read the above, a well written diary. Assuming the analysis is correct ( seems legit) and I interpret/remember it correctly (more dubious), it argues that the B1G rules don't support them relying on the "sportsmanship" angle during on ongoing investigation. Further, in the case of an active NCAA the B1G rules say the B1G should wait until after an NCAA investigation is completed to take any further action.
November 12th, 2023 at 8:57 AM ^
But the issue is whether the Sportsmanship policy or instead Big Ten Handbook Rule 32, governs here.
Michigan has the better argument here. Rule 32 should control and Petitti did not follow the processes required by Rule 32.
However...it is not a slam dunk.
November 12th, 2023 at 9:17 AM ^
Does UM have a strong argument that the Commissioner (or his office) has not used the Sportsmanship clause in previous cases related to potential NCAA violations? Net, this is a random act that contradicts the conditions that all parties (ADs, etc) rely upon as members of the conference.
November 12th, 2023 at 11:40 AM ^
The Commissioner's statement argued that there hasn't been a case like this so the lack of a sportsmanship sanction for a case like this is irrelevant. That's one of the argument's in the statement that UM's lawsuit didn't address, probably because they didn't have time given the lateness of the statement.
November 12th, 2023 at 11:43 AM ^
Delete
November 12th, 2023 at 8:58 AM ^
https://mgoblog.com/diaries/legal-analysis-big-ten-rules-don%27t-allow-insta-punishment-michigan
The above was so good that Tom Mars included it in the filing for Harbaugh. Basic point is that since the NCAA is investigating, the bylaws require the investigation to conclude before B1G considers punishment. Sportsmanship bylaw is secondary.