Strong Showing on Merits Not Sole Factor To Get Statute Enjoined Pending Appeal

Per BNA's U.S. Law Week, Vol. 76, No. 7 (Aug. 21, 2007):

A plaintiff seeking to enjoin enforcement of a state statute pending appeal need not make a strong showing of likely success on the merits, but only that the appeal has some merit and that the balance of harms is in its favor, the U.S. Court of Appeals for the Seventh Circuit ruled Aug. 6 (Cavel International Inc. v. Madigan, 7th Cir., No. 07-2658, 8/6/07).

This "sliding scale" standard is the same one used by district courts and courts of appeals adjudicating motions for preliminary injunctions and stays of district court rulings pending appeal, Judge Richard A. Posner said, citing Fed. R. App. P. 8(a)(1)(C), (2), and Hilton v. Braunskill, 481 U.S. 770 (1987). He said that the plaintiff here "has a good enough case on the merits for the balance of harms to entitle it to an injunction pending an expedited appeal[.]"

But Chief Judge Frank H. Easterbrook argued in dissent that this misread Hilton, which he said equated stays of district court orders and injunctions pending appeal and required a "strong showing" that the plaintiff is likely to prevail for both.

The plaintiff, whose slaughterhouse is in Illinois, produces horse meat for human consumption and exports its entire output to Europe, where it is considered a delicacy. It sought an injunction against a recent amendment to the Illinois Horse Meat Act, 225 Ill. Comp. Stat. 635/1.5, which prohibits slaughtering a horse in the state for human consumption or knowingly importing or exporting horse meat for human consumption.

The district court rejected the plaintiff's argument that the statute violates the commerce clause, and denied its motion for an injunction against enforcement of the statute pending appeal.

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