Wednesday, March 16, 2011

The Law of Temporary Restraining Orders and Injunctions in Wisconsin

By John DiMotto
With the passage of the recent Budget Repair Bill and the threats of legal action to challenge the constitutionality of the legislation, I thought it would be timely to review the law in Wisconsin with respect to restraining orders and injunctions.
Chapter 813 of the Wisconsin Statutes addresses the issue of when and under what circumstances restraining orders and injunctions may be sought. The purpose of a restraining order or injunction is to prevent a person from engaging in conduct or from continuing to engage in conduct in violation of the rights of another person. The restraining order or injunction can address:
1) The constitutionality of a statute.
2) General conduct (i.e. stop a defendant from divesting himself of property which divestiture is being contemplated in order to avoid execution on a judgment that a plaintiff has against the defendant).
3) Specific conduct (i.e. domestic abuse, child abuse, individual at risk or harassment injunctions). A restraining order and injunction can also be sought when a party seeks to challenge the constitutionality of legislation.
Section 813.02 specifically addresses the conditions precedent to obtaining a temporary restraining order or injunction. 813.02(1)(a) sets forth:
"When it appears from a party's pleading that the 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 the 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."
Does this mean that a restraining order or injunction is the norm or is it the exception? Case law gives us guidance.
1) An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a plaintiff directed toward a defendant forbidding a defendant from doing some act which the defendant is threatening or attempting to commit or restraining a defendant in continuance thereof, such act being unjust and inequitable, injurious to the plaintiff and not such as can be redressed by an action at law. State v. O'Dell, 192 Wis.2d 333 (1995).
2) The granting or denial of injunctive relief rests within the trial court's discretion. Hall v. Liebovich Living Trust, 300 Wis.2d 725 (Ct. App. 2007).
3) Injunctions do not issue for inconsequential or trivial causes but only to restrain an act that is clearly contrary to equity and good conscience. Milwaukee Electric Railway and Light Co., 205 Wis. 126 (1931).
4) Injunctions are not to be issued lightly. Bartell Broadcasters v. Milwaukee Broadcasting Co., 13 Wis.2d 165 (1961).
5) An equitable remedy such as a prospective injunction must of necessity, place heavy reliance on the facts of the particular controversy. Prince v. Bryant, 87 Wis.2d 662 (1979).
6) To obtain injunctive relief, a litigant generally must show that the injunction is necessary to prevent irreparable harm. The purpose of an injunction is to prevent future violations. Past injuries are in themselves no ground for an injunction and only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits. There must be no adequate legal remedy available. (i.e. The injury cannot be compensated by damages.) Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002).
7) Factors to be considered for the issuance of a temporary injunction are identified in 813.02(1). The movant must show: Reasonable probability of success on the merits; an inadequate remedy at law and irreparable harm. Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990).
8) Before an injunction will be issued, the cause must be substantial. Temporary injunctions are to be issued only when necessary to preserve the status quo. At the temporary injunction stage, the requirement of irreparable injury is met by showing that without it to preserve the status quo pendente lite, the permanent injunction sought would be rendered futile. School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).
9) An injunction may be no more broad than is equitably necessary. City of Milwaukee v. Burnette, 248 Wis.2d 820 (Ct. App. 2001).
10) When a public entity seeks injunctive relief to enforce a law (i.e. zoning ordinance) it does not have to show irreparable harm. Forest Co. v. Goode, 219 Wis.2d 655 (1998).
11) Injunctive relief should be tailored to the necessity of the particular case. Hoffman v. Wisconsin Electric Power Co., 262 Wis.2d 264 (2003).
12) To warrant an injunction, the injury must be real, serious, material and permanent or potentially permanent. the right to an injunction must be clear and reasons for granting it strong and weighty. Kocken v. Wisconsin Council 40 AFSCME, 301 Wis.2d 266 (2007).
13) Injunctions must be specific as to the prohibited acts and conduct in order for the person being enjoined to know what conduct must be avoided. Welytok v. Ziolkowski, 312 Wis.2d 435 (Ct. App. 2002).
In the context of challenging legislation, we know that statutes are presumed constitutional and that the party challenging constitutionality must prove unconstitutionality beyond a reasonable doubt. In the context of seeking an injunction to prevent the implementation/enforcement of a statute on the grounds that the statute is unconstitutional, the moving party must show:
1) Reasonable probability of success on the merits.
2) Inadequate remedy at law.
3) Irreparable harm.
It will be interesting to see what arguments are made for and against provisions in the Budget Repair Bill. It will be even more interesting to learn not only the ultimate decision made by the trial court and appellate courts but the legal rationale for the ultimate decision.


  1. A fine primer on injunctive relief.

  2. what if Temporary Restraining order went past 90 days?

    1. Your question gas no answer without the context of the tro

  3. TRO was issued, went to court to contest, but during the process of defending the TRO, it went past 90 days, via extensions, lack of discovery etc.

    1. appropriate extensions can be granted to extend time limitations depending on the nature of the case and proceedings etc.