MADISON, Wis. (AP) — The latest court challenge to a move made by Gov. Tony Evers’ to slow the spread of the coronavirus in Wisconsin comes before the state Supreme Court on Thursday, this time related to an order limiting how many people can gather in bars and restaurants.
The on-again, off-again order that expired in November is one of a series that the Democratic governor has issued in reaction to the coronavirus pandemic, all of which have been challenged by conservatives.
The conservative-leaning Wisconsin Supreme Court previously struck down Evers’ “safer at home” order in May, saying it should have gone through the Legislature as an administrative rule. It heard arguments last month in a lawsuit supported by Republican legislative leaders to strike down Evers’ statewide mask mandate, which is set to remain effect until Jan. 19.
The case before the court Thursday centers on statewide capacity limits ordered in October by Evers’ Department of Health Services secretary, Andrea Palm. The order expired on Nov. 6, but the legal question of whether it was legally issued persists and the resolution will affect future public health orders.
Palm wants to issue a new order limiting indoor capacity, which would remain in effect for 28 days, but she doesn’t feel she legally can do so until the court rules in the case, attorneys for the state Department of Justice said in legal filings. Palm said Wednesday that the ability for her to issue health emergency orders pertaining to COVID-19, a measles outbreak or whatever else may happen, is “really critical to our work.”
Mitigation strategies, such as limiting how many people can gather indoors, “have really shown themselves to be effective in reducing the spread of COVID-19 and will continue to remain to be important until we have enough vaccine in the arms of Wisconsinites to really be that final tool that helps us end this pandemic,” she said.
The Oct. 6 order limited the size of indoor public gatherings to 25% of a building or room’s occupancy or 10 people in places that don’t have an occupancy limit.
The powerful Tavern League of Wisconsin filed a lawsuit challenging the order, arguing it would drive bars and restaurants out of business. It said such an order should have to be issued as a rule by the Legislature.
A Sawyer County judge blocked the capacity limits order on Oct. 14, only to have a Barron County judge reinstate it five days later. That sparked an appeal from The Mix-Up bar in Amery and a group that opposes abortion rights, Pro-Life Wisconsin, which argued that the capacity restrictions limit its fundraising gatherings.
The 3rd District Court of Appeals blocked the restrictions on Oct. 23 and issued its final order on the same day the limits expired, Nov. 6. The appeals court concluded that the order should have gone through the legislative process and been issued as a rule. Democratic Attorney General Josh Kaul, who is representing the Evers administration, appealed.
The state Supreme Court’s ruling will likely make clear whether Evers can issue future orders limiting gatherings or whether he’d have to instead go through the Legislature, which has opposed many of his efforts to limit the virus. Assembly Republicans have also released a proposal that would prevent local health officials from issuing emergency orders that close businesses or that implement capacity restrictions unless the limits apply to all types of businesses.
COVID-19 cases in Wisconsin spiked in mid-November and have been trending downward since then. As of Wednesday, nearly 445,000 people in Wisconsin had tested positive for COVID-19 and 4,196 people had died of the disease since the start of the pandemic, according to the state Department of Health Services.
