Doctrines: the staying of the exercise of federal
jurisdiction in a case that involves a question of state law
or policy, which the federal court prefers to have resolved
by a state court or agency, often in conflict with the
federal court’s constitutional obligations. For example,
when the Supreme Court refuses to exercise its federal
constitutional jurisdiction or declines to consider a
question of state law arising from a case being appealed
from a state supreme court.
a court-ordered allowance where payment is demanded without
consideration, from one spouse to another (almost always for
the wife’s benefit), for support after legal separation
(temporary) or divorce (permanent), and enforced with
improper use of the court’s contempt power; besides having
no basis in contract law, the legality of alimony is very
controversial because the original basis for alimony, the
so-called Doctrine of Necessaries, has been repealed by most
state legislatures, which also has severed the link between
alimony and divorce.
sometimes referred to as the “domestic relations exception”,
this abstention doctrine originated in Ankenbrandt v.
504 U.S. 689, 694 (1992) is
without foundation in law and states that a federal court
cannot review cases dealing with “domestic relations” or
family law. The federal court’s refusal to review family law
cases is a clear violation of their constitutional
obligation, and has created a virtual miasma of abusive and
corrupt rulings in the state courts, many in clear violation
of the U.S. Constitution.
Brief: concise formal statement of a case used in
appellate courts for purposes of appeal at either the state
or federal level; e.g., an appellate brief is required for
an appeal of an alimony ruling from family law court.
Matrimonii: legal phrase meaning to break the bond
of marriage. The term is now used to refer to a final and
Complaint: the initial pleading in a civil court
that starts a lawsuit and that sets forth the allegations
made by the plaintiff against the defendant and the
plaintiff's demand for relief.
Liberty: freedom from arbitrary governmental
interference (as with the right of free speech), specificly.
by denial of governmental power, especially as guaranteed by
the Bill of Rights. (See liberty interest).
Rights: the nonpolitical rights of a citizen,
especially the rights of personal liberty guaranteed to U.S.
citizens by the 13th and 14th
amendments to the Constitution and by acts of Congress;
these cases are generally adjudicated under 42 USC 1983
a group of persons or things having characteristics in
common, including a) a group of persons who have some common
relationship to a person making a will and are designated to
receive a gift under the will but whose identities will not
be determined until sometime in the future, b) a group of
securities (as stocks or bonds) having similar
distinguishing features, c) a group whose members are
represented in a class action, d) "protected class", e) a
group of crimes forming a category distinguished by a common
characteristic (as the use of violence or the requirement
for a maximum penalty).
Classification: the act or method of distributing
people or things into a class or category according to
characteristics; e.g., suspect classification.
Estoppel: also sometimes known as issue preclusion,
is a common law estoppel doctrine that prevents a person
from relitigating an issue. Simply stated, when an issue of
fact (as opposed to an issue of law) is decided by a fair
and impartial arbiter (usually a jury), then the two parties
may not relitigate that in the future. It may be offensive
collateral estoppel when it is used by a plaintiff to
prevent relitigation by a defendant who lost against another
plaintiff on the same issue.
River Abstention: an abstention grounded esp. on the
involvement in the federal case of questions of state
concern that are also at issue in a parallel case in state
the informal and voluntary recognition by courts of one
jurisdiction of the laws and judicial decisions of another.
State Interest: a governmental interest (as in
educating children or protecting the public), which is so
important that it outweighs individual rights; the nature of
the concept of a compelling state interest would indicate it
is self-evident, or almost self evident, and that it is
based on a legal doctrine or reflecting an overwhelming
public policy, and there should be evidence of its universal
application throughout the laws of the State, a consistency
in the laws of the State related to the compelling interest
and a predictability of the compelling interest applied in
Constitutional Rights: the rights guaranteed to
citizens of the United States by the US Constitution, and to
residents of a particular state by their respective state
Construction: the act of building by combining or
arranging parts or elements; the act or process of
interpreting or explaining the sense or intention of a
writing (e.g., statute, opinion or instrument).
to analyze and explain the meaning of a sentence or passage.
Chancery: court of equity; family law courts are
generally considered to be courts of chancery.
a common-law doctrine, originating in Medieval
Ecclesiastical courts, whereby a woman’s legal identity was
considered to be merged with that of her husband; because
she could not own property, enter into contracts, or receive
credit as an individual, her husband was obligated for
maintenance and support; in fact, this doctrine classifies
women as chattel or property. All states have abrogated or
repealed Coverture, thereby eliminating the legal basis for
Latin for "in deed, in fact, in reality" Refers to a fact or
an act that occurs as a matter of practice and reality
rather than from de jure, meaning a lawfully and rightfully
Declaratory Judgment: a judgment declaring a right
or establishing the legal status or interpretation of a law
or instrument; e.g., seeking a declaratory judgment that the
regulation is unconstitutional
Declaratory Relief: an order from a court granting a
particular remedy as set forth in a declaratory judgment.
of Necessaries: this doctrine, originating in
Medieval Ecclesiastical court, arose from the obligation
inherent in the doctrine of Coverture; this obligation was
later formalized into the so-called “Doctrine of
Necessaries”, which became the justification for alimony.
Most state legislatures have abrogated or repealed these
doctrines thereby eliminating the legal basis for alimony
and forever severing the link between alimony and divorce.
Judgment: a judgment entered by a court after an
entry of default against a party for failure to appear, to
file a pleading, or to take other required procedural steps.
or Discretionary Power: a public official’s power or
right to act in certain circumstances according to personal
judgment and conscience. (see Judicial Discretion); e.g.,
discretionary power is often abused by family law judges by
violating the privacy rights of spouses to make arbitrary
Process: due process: 1) a course of formal
proceedings (as judicial proceedings) carried out regularly,
fairly, and in accordance with established rules and
principles (procedural due process); 2) a requirement that
laws and regulations must be related to a legitimate
government interest (as crime prevention) and may not
contain provisions that result in the unfair or arbitrary
treatment of an individual (substantive due process). Note:
The guarantee of due process is found in the Fifth Amendment
to the Constitution, which states "no person shall . . . be
deprived of life, liberty, or property, without due process
of law," and in the Fourteenth Amendment, which states "nor
shall any state deprive any person of life, liberty, or
property without due process of law." The boundaries of due
process are not fixed and are the subject of endless
judicial interpretation and decision-making. The requirement
of due process also applies to agency actions.
"In the bench" or "full bench." Refers to court sessions
with the entire membership of a court participating rather
than the usual quorum. US courts of appeals usually sit in
panels of three judges, but may expand to a larger number in
certain cases. They are then said to be sitting en banc.
Protection of the Law: a guarantee under the 14th
Amendment to the U.S. Constitution that a state must treat
an individual or class of individuals the same as it treats
other individuals or classes in like circumstances (see
also rational basis test, strict scrutiny, suspect
classification, Amendment XIV to the Constitution). Note:
The Equal Protection requirement of the Constitution
protects against legislation that affects individuals
differently without a rational basis for doing so. In
reviewing claims of denial of equal protection, a court will
uphold legislation that has a rational basis unless the
legislation affects a fundamental right or involves a
suspect classification, such as race. In such a case, the
court will use a strict scrutiny standard of review and will
strike down legislation that does not show a compelling need
1) having or exhibiting equity (i.e., dealing fairly and
equally), e.g., shall allocate . . . appropriations in an
equitable manner -- U.S. Code; 2) existing or valid in
equity or as a matter of equity as distinguished from law,
e.g., property is supposed to be distributed in an
equitable manner in family law court.
justice according to fairness, esp. as distinguished from
mechanical application of rules (i.e., prompted by
considerations of equity). Example: comity between nations,
and equity require it to be paid for -- F. A. Magruder
legal abbreviation for "et sequentia" meaning "and the
following ones"; usually refers to a sequential set of state
or federal statutes.
Within some criminal justice systems, a preliminary
hearing (evidentiary hearing) is a proceeding,
after a criminal
complaint has been filed by the
prosecutor, to determine whether, and to what extent,
criminal charges and civil
cause of actions will be heard (by
evidence will be admitted, and
what else must be done (before a case can proceed). At such
a hearing, the
defendant may be assisted by
counsel, indeed in many
jurisdictions there is a right to counsel at the preliminary
Imprisonment: wrongful imprisonment of a person
contrary to law, without due process and the benefits of
normal legal safeguards, e.g., Miranda rights.
District Court: the system of lower federal courts
serving regions or districts within each state; wrongful use
of contempt power to enforce state alimony orders can be
removed to federal district court (See Removal).
Question: a question that falls under the
jurisdiction of a federal court because it requires a
resolution of the construction or application of federal
Question Jurisdiction: the jurisdiction granted to
federal courts over civil actions arising under the
Constitution, federal laws, or treaties of the U.S.; federal
jurisdiction over cases involving a federal question. Note:
The federal courts have usually interpreted the statutory
phrase ``arising under'' rather strictly. U.S. Supreme Court
decisions have held that the plaintiff's pleading must
establish that the cause of action raises an issue of
federal law (as by depending on construction or application
of a federal law).
Amendment: U.S. Constitutional Amendment governing
civil rights, right to privacy, due process, and equal
protection rights along with other freedoms for citizens,
which are considered to be fundamental rights.
Fundamental Right: a
right that is considered by a court (as the U.S. Supreme
Court) to be explicitly or implicitly expressed in a
constitution (as the U.S. Constitution) Note: A court must
review a law that infringes on a fundamental right under a
standard of strict scrutiny. A fundamental right (e.g.,
right to privacy) can be limited by a law only if there is a
compelling state interest,
410 U.S. 113 (1973).
Gender Bias: a personal,
discriminatory and often unreasoned judgment for or against
one side in a dispute based upon gender, which is prohibited
under the Equal Protection clause of the U.S. Constitution’s
14th Amendment; e.g., alimony awards are almost
always granted in favor of women. U.S. Supreme Court ruled
against the use of gender classification in Orr v. Orr,
440 U.S. 268 (1979) and Stanton
429 U.S. 501 (1977).
Impermissibly Infringe: to encroach upon in a way
that violates the law or rights of another.
(Latin) legal phrase meaning among other things.
of Privacy: the tort of unjustifiably intruding upon
another's right to privacy by appropriating his or her name
or likeness, by unreasonably interfering with his or her
seclusion, by publicizing information about his or her
private affairs that a reasonable person would find
objectionable and in which there is no legitimate public
interest, or by publicizing information that unreasonably
places him or her in a false light
Involuntary Servitude: a
severe restriction of liberty, as in or similar to slavery;
prohibited by the 13th Amendment to the U.S.
Constitution, the primary purpose of this amendment was to
abolish slavery as it had existed in the U.S. until the
Civil War. But the U.S. Supreme Court has held that it was
not limited to that purpose and intended to cover conditions
akin to slavery. Butler v. Perry, 240 U.S. 328, 332
(1916). More recently, United States v. Kozminski,
487 U.S. 931, 942 (1998) the
Supreme Court defined the term as a compulsory condition “in
which a person lacks liberty especially to determine one’s
course of action or way of life,” Id. The Court held that
involuntary servitude “necessarily means a condition…in
which the victim is forced to work for [another] by the use
or threat of physical restraint or physical injury, or by
the use or threat of coercion through law or the legal
process,” such as occurs through the imposition of alimony.
legal measure in a state proceeding to preserve the right to
later litigate issues of a state case in federal court.
Jennings v. Caddo Parish School Bd., 531 F.2d 1331 (5th
429 U.S. 897 , 97 S.Ct. 260, 50
L.Ed.2d 180 (1976).
Discretion: the exercise of judgment by a judge or
court based on what is fair under the circumstances and
guided by the rules and principles of law; a court’s power
to act or not act when a litigant is not entitled to demand
the act as a matter of right; e.g., family law judges often
abuse their judicial discretion by making alimony awards in
violation of statutory law or privacy rights.
Jurisdiction: the power, right, or authority to
interpret, apply, and declare the law (as by rendering a
decision); e.g., to be removed to the State having
jurisdiction of the crime -- U.S. Constitution Article IV.
Example: a court of competent jurisdiction. Note:
Jurisdiction determines which court system should properly
adjudicate a case; e.g., state vs. federal jurisdiction.
(Broad) Construction: an interpretation that applies
a writing in light of the situation presented and that tends
to effectuate the spirit and purpose of the writing; also
termed equitable construction, loose construction or broad
Liberty Interest: a
constitutional right, title or claim in freedom from
governmental deprivation of liberty, esp. without due
process Example: Marshall v. Jerrico, Inc.,
446 U.S. 238 (1980).
Applied: to put a law into operation or effect in
the least intrusive manner.
Miranda Rights: relating
to U.S. Supreme Court ruling,
Miranda v. Arizona, 384 U.S.
436 (1966), establishing legal
rights of an arrested criminal defendant to have an attorney
and to remain silent so as to avoid self-incrimination.
Example: alimony defendants have been jailed through misuse
of contempt power in a quasi-criminal proceeding without
benefit of Miranda rights.
Construed: see Strict Construction.
Tailored: a content-neutral restriction on the time,
place, or manner of speech in a designated public forum;
being only as broad as is reasonably necessary to promote a
substantial governmental interest that would be achieved
less effectively without the restriction; no broader than
Jurisdiction: the jurisdiction granted a court to
try a case in the first instance, make findings of fact, and
render a usu. appealable decision; e.g., the district courts
shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States -- U.S. Code
Over-inclusive: (of legislation) extending beyond
the class of persons intended to be protected or regulated;
burdening more persons than necessary to cure the problem;
e.g., alimony statutes tend to be over-inclusive by
burdening a large segment of the population with involuntary
servitude and infringement of privacy.
A phase used to distinguish an opinion of the whole court
from an opinion written by any one judge.
Alimony: imposition of alimony upon a former spouse
for the lifetime of either party; this form of alimony
satisfies the definition of involuntary servitude and is
currently illegal in Texas.
freedom from unauthorized intrusion: state of being let
alone and able to keep certain esp. personal matters to
oneself (e.g., expectation of privacy, invasion of privacy
interest, right of privacy). See
381 U.S. 479 (1965) and
410 U.S. 113 (1973).
Interest: an interest in freedom from governmental
intrusion into matters into which one has a reasonable
expectation of privacy, e.g., the privacy-protected zone of
an area or aspect of life that is held to be protected from
intrusion by a specific constitutional guarantee (as of the
right to be secure in one's person, house, papers, or
effects against unreasonable searches or seizures) or is the
object of an expectation of privacy; all alimony statutes
infringe upon the privacy-protected zone of marriage. See
381 U.S. 479 (1965);
Carey v. Population Serv. Int’l., 431 U.S. 678, 684-685
(1977); Zablocki v. Redhail, 434 US 374 (1978);
410 U.S. 113 (1973);
388 U.S. 1, 12, 87 S.,Ct. 1817
(1967); Planned Parenthood v. Casey, 505 U.S. 833,
859 (1992), Littlejohn v. Rose, 786 F.2d 785, 786
(6th Cir. 1985).
Rights (right to privacy, right of privacy): the
right of a person to be free from intrusion into or
publicity concerning matters of a personal nature; to be let
alone, in absence of some "reasonable" or compelling public
interest (e.g., state interest) in a person's activities,
like those of celebrities or participants in newsworthy
events. Invasion of the right to privacy can be the basis
for a lawsuit for damages against the person or entity (such
as a magazine or television show) violating the right.
Although not explicitly mentioned in the U.S. Constitution,
a penumbral right of privacy has been held to be encompassed
in the Bill of Rights (esp. 14th Amendment and 4th
Amendment), providing protection from unwarranted
governmental intrusion into areas such as the
privacy-protected zone of marriage and contraception. A
person's right of privacy may be overcome by a showing that
it is outweighed by a compelling state interest. (See also
invasion of privacy)
literally, of or in itself or of oneself; i.e., to act as
one’s own legal counsel.
Due Process: a course of formal proceedings (as
legal proceedings) carried out regularly and in accordance
with established rules and principles; fundamental to
procedural due process is adequate notice prior to the
government's deprivation of one's life, liberty, or
property, and an opportunity to be heard and defend one's
rights to life, liberty, or property. The U.S. Supreme Court
has held that a state violates the Due Process Clause if it
imposes procedures, which effectively impede access to the
appellate court system. Evitts v. Lucey, 469 U.S.
387, 393-94 (1985); Smith v. Robbins, 528 U.S. 259,
Pullman Abstention: an
abstention grounded on the involvement in the federal case
of the interpretation of an ambiguously worded state law
whose constitutionality would have to be determined by the
federal court. Note: A party to a case subjected to a
Pullman abstention may reserve the right to return to
federal court once the state court has resolved the state
law question (See Jennings Reservation). Pullman abstentions
are the most common type of abstention. Railroad Comm'n
of Texas v. Pullman Co.,
312 U.S. 496 (1941)
Basis Test: a test less intensive than strict
scrutiny or an intermediate review that involves a
determination of whether a statutory or regulatory
classification of persons (as by age or offender status) has
a rational basis and does not deny equal protection under
the Constitution; e.g., if the classification neither
affects a fundamental right, nor creates a suspect
classification, nor is based on gender, then the rational
basis test is applied -- Charlton v. Kimata, 815 P.2d
State Interest: a state interest relating to, based
on, or guided by reason, principle, fairness, logic; a
legitimate state interest, or a consideration of fact; e.g.,
age distinctions are not subject to strict scrutiny, but
they must have a rational relationship to a legitimate state
interest -- In re J. M., 642 A.2d 1062 (1994).
Reconsideration: re-examination or secondary review
of a previous judgment within the same court, usually
involving additional facts or matters of law.
Reinstatement: to restore to a previous legal
standing within a judicial proceeding.
the means to enforce a right or to prevent or obtain redress
for a wrong; the relief (e.g., damages, restitution,
specific performance, or an injunction) that may be given or
ordered by a court or other tribunal for a wrong; e.g., if
the contract is null and void, the remedy is to rescind and
to put the parties in the position in which they were prior
to the attempted agreement -- First Nat'l Mortgage Corp.
v. The Manhattan Life Ins. Co., 360 So. 2d 264 (1978)
transfer of jurisdiction from state to federal court,
usually requiring a civil rights or civil liberties issue,
liberty interest or imminent federal question for urgent
Judicata: a matter finally decided on its merits by
a court having competent jurisdiction and not subject to
litigation again between the same parties. A rule of civil
law that once a matter has been litigated and final judgment
has been rendered by the trial court, the matter cannot be
relitigated by the parties in the same court, or any other
trial court. A court will use res judicata to deny
reconsideration of a matter.
Privacy: See Privacy Rights.
an abstention maintaining that a federal court cannot review
a case that has already been decided in state court even if
the state-court decision is clearly unconstitutional.
Federal courts still have discretionary authority to review
such cases. Due process and equal protection claims can
overcome this doctrine because they are within the federal
jurisdiction and are not "inextricably intertwined" with a
state-court action. Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983).
searching study or inquiry; judicial investigation into the
constitutionality of a statutory classification of persons
under the equal protection clause of the U.S.
Status: the condition of a person in the eyes of the
law based upon based upon his or her socioeconomic
classification or statutory standing within a suspect
classification, such as race, sex or marriage.
Rights: assignment of rights enacted, created,
regulated, or defined by state or federal statutes; these
rights are subordinate to constitutional and fundamental
characterized by narrowness; not
demonstrating a broad or liberal view
Example: strict construction.
Construction: a narrow interpretation (as of a
writing or legislation) based on a literal or technical
understanding of the words used; an interpretation that
considers only the literal words of a writing (i.e.,
teleological interpretation); a construction that considers
statutory or contractual words narrowly as in their
historical context with highly restrictive readings (i.e.,
strict interpretation); philosophy underlying of strict
interpretation of statutes.
Scrutiny: the highest level of judicial scrutiny
that is applied esp. to a law that allegedly violates equal
protection in order to determine if it is narrowly tailored
to serve a compelling state interest.
is a Latin term meaning "of one's own accord." It refers to
when the court addresses an issue that has not been
presented for consideration by the litigants. A common
situation is when the court dismisses an action, for example
by determining that jurisdiction is not proper even though
both parties have agreed to appear in the court. In another
example, a court might declare a mistrial even though no
motion has been made by any of the parties to the case.
Also, a court may dismiss an appeal sua sponte. If there is
a defect in an appeal, they court may sua sponte dismiss
Subject-Matter Jurisdiction: the jurisdiction of a
court over the subject, type, or cause of action of a case
that allows the court to issue a binding judgment (see
original jurisdiction); e.g., housing court lacks
subject matter jurisdiction to adjudicate fraudulent
conveyance actions -- National Law Journal
Duces Tecum: a court order specifying items that a
witness or other party is to bring (duces) in hand (tecum)
or suffer penalty (sub poena)
Substantive Due Process: a judicial requirement that
enacted laws may not contain provisions that result in the
unfair, arbitrary, or unreasonable treatment of an
individual; substantive due process is a limit on the
government's power to enact laws or regulations that affect
one's life, liberty, or property rights; it is a safeguard
from governmental action that is not related to any
legitimate government interest or that is unfair,
irrational, or arbitrary in its furtherance of a government
interest; e.g., infringement of privacy rights by alimony
Substituted Judgment: a decision usually regarding
medical treatment made by a person (as a family member) on
behalf of a person who is incompetent and unable to decide
for himself or herself; some family law judges have
erroneously claimed to use substituted judgment in alimony
Judgment: judgment that may be granted upon a
party's motion when the pleadings, discovery, and any
affidavits show that there is no genuine issue of material
fact and that the party is entitled to judgment in its favor
as a matter of law. Note: According to Rule 56 of the
Federal Rules of Civil Procedure, a motion for summary
judgment may be made at any time after 20 days following the
commencement of the action. Summary judgment may be granted
on all or on just part of a case.
(Protected) Class: a class of individuals marked by
immutable characteristics (e.g., race or marital status) and
entitled to equal protection of the law by means of judicial
scrutiny of a classification that discriminates against or
otherwise burdens or affects them; e.g., a classification
that does not impact a suspect class or impinge upon a
fundamental constitutional right will be upheld if it is
rationally related to a legitimate government interest --
Doe v. Poritz, 622 A.2d 367 (1995) Note: Suspect class
and suspect classification are often used synonymously in
regard to a group of persons, but suspect class does not
refer to the process of classifying itself.
Classification: a statutory classification that is
subject to strict scrutiny by the judiciary of its
consistency with constitutional Equal Protection guarantees
because it affects a suspect class, such as race, sex or
Alimony: generally a short-term form of alimony
usually demanded by court order while a person (almost
always the husband) is still married; because it is enforced
while a person is married, temporary alimony violates the
Equal Protection clause by discriminating against persons
based upon social status and gender.
Amendment: U.S. Constitutional Amendment abolishing
slavery and involuntary servitude. Section 1. Neither
slavery nor involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject
to their jurisdiction. Section 2. Congress shall have power
to enforce this article by appropriate legislation.
a legal term for activity
which is outside the scope of the relevant legal powers and
lacking clear expression, having imprecise meaning, or
stated in indefinite legal terms; e.g., alimony statutes are
inherently vague because they are applied on a discretionary
basis with almost infinite variations.
Certiorari: A writ by which an appellant seeks the
review of a case by the Supreme Court of the United States.
When the writ is granted, the court will order the lower
court to send up the record of the case for review.
Mandamus: An order issued by a court of superior
jurisdiction commanding performance of a particular act by
an inferior court or public official.
Younger Abstention: an
abstention grounded on the plaintiff's invocation of federal
jurisdiction for the purpose of restraining an ongoing (usu.
Criminal) state proceeding (comity) that has been brought in
good faith and not for harassment, Younger v. Harris,
401 U.S. 37 (1971). In a more
recent opinion, the U.S. Supreme Court stated, “Younger
abstention is mandated if the State's interests in the
proceedings are so important that exercise of the federal
judicial power would disregard the comity extended between
the States and the National Government.”
Inc. v. Pennzoil Co.,
784 F.2d 1133, 1152 (2d Cir. 1986)
overruled on procedural grounds,
481 U.S. 1 (1987).
42 U.S.C. 1983. Civil action for deprivation of
rights. Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.