Wednesday, March 21, 2012

Injunction Law in Wisconsin - An Overview

By John DiMotto


Chapter 813 of the Wisconsin Statutes addresses Wisconsin's injunction law and sets forth the various types of injunctions which people may obtain an against others as well as the circumstances, procedures and standards that must be met in order to comply with due process of law. Today, I begin a series on injunction law in Wisconsin by looking at what an injunction is and the types of injunctions that are available.

What is an Injunction?

An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a petitioner directed at a respondent forbidding the respondent from doing some act which the respondent is threatening or attempting to commit or restraining a respondent in continuance thereof, such act being unjust, inequitable or injurious to the petitioner and not such as can be addressed by an action at law. Once issued a judge can modify or vacate the decree as events may shape the need. see State v. Odell, 193 Wis.2d 333 (1995).

When can an Injunction be issued?

An injunction can only be issued after a respondent has been given notice of the petition. However, a respondent may be restrained via a temporary restraining order (TRO) until the decision whether to grant or refuse the injunction is made after a hearing on the petition for injunction. see 813.05(1) and 813.08.

An injunction can be justified only in extreme circumstances. Accordingly, a court may not grant an injunction (ie. domestic abuse) unless it finds reasonable grounds that the respondent engaged in or may engage in abusive conduct (ie. domestic abuse) of the petitioner. see Laluzerne v. Stange, 200 Wis.2d 179 (Ct. App. 1996).

What Types of Injunctions can be issued?

There are three types of injunctions that can be issued: Temporary Injunctions, General Injunctions and Statutory Specific Injunctions.

Temporary Injunctions

1) When it appears from a party's pleadings that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure a party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. see 813.02(1)(a).

2) Factors to be considered and which the petitioner must show are:

a) reasonable probability of success on the merits,

b) an inadequate remedy at law, and

c) irreparable harm.

3) The terms of the temporary injunction are within the trial court's discretion.

see Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990).

4) Temporary injunctions at to be issued only when necessary to maintain the status quo.

see School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).

General Injunctions

Injunctive relief ("general" injunction) may be sought and obtained when a litigant generally shows that the injunction is necessary to prevent irreparable harm.

1) The purpose of a "general" injunction is to prevent future violations.

2) Past injuries are, in themselves, no ground for a "general" injunction. A "general" injunction is only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits.

3) There must be no adequate legal remedy available.

see Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002).

Injunctions are not to be issued lightly. The cause must be substantial. see School District of Slinger, supra.

Statutory Specific Injunctions

There are four statutory specific injunctions that may be obtained:

1) Domestic Abuse Restraining Orders and Injunctions -- 813.12.

2) Child Abuse Restraining Orders and Injunctions -- 813.122.

3) Individual at Risk Restraining Orders and Injunctions -- 813.123.

4) Harassment Restraining Orders and Injunctions -- 813.125.

With respect to each of these injunctions:

1) A temporary restraining order may be requested and shall be granted if the petition is legally sufficient and sets forth "reasonable grounds to believe."

2) The petition must be served on the respondent prior to the hearing on the injunction.

3) The hearing on the petition shall be held within 14 days of the filing of the petition with one 14 days extension if service is not effectuated prior to the first hearing date.

4) At the hearing, the burden of proof is on the petitioner to establish "reasonable grounds to believe" the allegations in the petition. All parties have the right to submit evidence. The Rules of Evidence apply at the hearing.

5) If the court finds that the petitioner has met the burden of proof, the injunction shall be issued for the time sought by the petitioner as allowed by statute.

6) The court cannot issue "mutual" injunctions where there is no stipulation to do so. see Laluzerne, supra.

Foreign Protection Orders -- 813.128

Injunctions obtained in another state or country -- Foreign Protection Orders -- are given full faith and credit in Wisconsin if they meet the requirements of 806.247(2). That is:

1) The foreign protection order was obtained only after the respondent subject of the order was provided with reasonable notice of the action and opportunity to be heard sufficient to protect the respondent's right to due process. If the foreign protection order is an ex parte injunction or order, the respondent shall have been given notice and the opportunity to be heard within a reasonable time after the order was issued sufficient to protect the respondent's right to due process. This means that the court in the foreign jurisdiction had personal jurisdiction over the respondent. If the foreign jurisdiction's rules regarding service must give the respondent reasonable notice and opportunity to be heard in order for

Wisconsin courts to give the foreign protection order full faith and credit.

2) The foreign court that issued the order had subject matter jurisdiction.

Full faith and credit will not be given to a foreign protection order:

1) That is issued against the person who filed a written pleading with a court for a protection order if no written pleading was filed seeking the foreign protection order against that person or

2) Where a cross or counter petition was filed but the court did not make a specific finding that each party was entitled to a foreign protection order.

Conclusion

Injunction are an equitable remedy that provide redress for individuals where there is no adequate remedy of law. They provide protection from harm.

In my next blog, I will begin looking at the statutory specific injunctions and the procedures and standards that must be met in order to obtain such injunctions.



1 comment:

  1. Applying for an injunction is a good idea when you are under situation, you need any legal protection. i like the information that you shared about injunction.
    family law lawyer
    http://stubbslaw.com.au/

    ReplyDelete