Irene L. Evans, Abuse Victims are Not Sleeping Away Their Day in Court: Claim preclusion and Wisconsin abuse injunctions, 2025 Wis. L. Rev. 1551 (2025).
A quirk of the Wisconsin rules of civil procedure currently deprives victims of domestic abuse access to protective injunctions in certain circumstances. The issue arises because of a confluence of doctrines, statutory definitions, and common practices. Abuse victims who petition for a domestic abuse or harassment injunction—colloquially known as a restraining order—but do not appear for their hearings routinely have their petitions dismissed for “failure to prosecute.” This dismissal is defined by statute as a judgment on the merits. A judgment on the merits in turn bars the victim from refiling for the injunction under the doctrine of claim preclusion, also known as res judicata.
The preclusive effect of such a prior dismissal deprives abuse victims of the legal protections that the legislature intended to provide by creating the injunction statutes. This erodes Wisconsin public policy, which clearly favors the protection of crime victims and recognizes their unique concerns. The mechanical application of claim preclusion in this context does not account for the distinct legal position of injunction petitioners and is unnecessary to fulfill the traditional purposes of claim preclusion, as injunction petitions are rarely “vexatious” or “needless.”
To remedy this problem, the legislature should amend the law to presumptively except protective injunctions from the operation of claim preclusion. Alternatively, and without a change in the law, judges hearing injunction petitions should exercise their discretion to dismiss injunctions without prejudice when the petitioner fails to appear for an injunction hearing, and attorneys and advocates working with clients should ensure petitioners are aware of the effect of a missed hearing. These solutions would allow victims of domestic abuse to, at the very least, have their petitions for injunctions heard on the merits.
