Tavern League sues over health order as state breaks COVID-19 records

Evers urges voters to call legislators, demand action to address pandemic

Photo by Louis Hansel @shotsoflouis on Unsplash

Wisconsin broke a series of COVID-19 records Tuesday as the state got ready to open its overflow facility for patients recovering from the illness, while the tavern industry lobby group sued to block the state’s most recent emergency health order.

Late Tuesday, the Tavern League of Wisconsin filed a lawsuit in Sawyer County seeking a temporary restraining order and an injunction that would stop the state order limiting the number of people allowed indoors at restaurants, bars and other indoor public gatherings to 25% of those establishments’ capacity, saying the order would subject many of them to “de facto closure.” 

Earlier in the day, the Department of Health Services (DHS) reported that the total number of confirmed coronavirus infections in the state has reached 155,471 people — with 3,279 newly confirmed cases on Tuesday and 34 newly reported deaths, both new daily records.

Backup health care facility for COVID patients
The Milwaukee Alternate Care Facility at State Fair Park in West Allis under construction in the spring of 2020. (Screen capture from video provided by Wisconsin Department of Administration and Department of Health Services)

The state hit another record the previous day, when 950 people were reported hospitalized with COVID-19. On Wednesday, the planned alternate care facility at State Fair Park in West Allis will open for its first 50 patients.

Although it’s been referred to informally as a field hospital, state officials caution that the facility falls short of the definition for the term “hospital.” It won’t take walk-in patients, only patients transported from other hospitals in the state that need to reduce their occupancy to ensure space for new patients, both those with COVID-19 and those with other medical conditions requiring hospital treatment.

The alternate care facility will be strictly for COVID-19 patients, and will be used for those who are recovering or whose conditions are less acute, said DHS Secretary-designee Andrea Palm.

Also Tuesday, as part of a recent series of announcements of new funding to provide pandemic relief for various sectors of the economy, Gov. Tony Evers announced an additional $50 million to bolster the state’s Child Care Counts program, which provides support for early care and education.

Disagreement over rulemaking

Palm issued the capacity-limit order last week under the direction of Evers. Joining the Tavern League in the lawsuit are the Sawyer County Tavern League and the Flambeau Forest Inn in Winter, Wis. The lawsuit names as defendants Palm, DHS, and the Sawyer County health officer, Julia Lyons.

“Restaurants, taverns, bars, and supper clubs did not cause this pandemic, but they are systematically facing bankruptcy, closure, and economic ruin,” said Tavern League President Chris Marsicano in a statement  posted on the lobby group’s website. “Those of us left cannot survive a reduction of 75% of our customers proposed by Secretary-designee Palm. We do not have the financial wherewithal to survive the blunt force of another business shutdown which have not proven effective and will result in catastrophic losses in the hospitality industry in Wisconsin.”

The lawsuit contends that the order is illegitimate because it did not go through the legislative emergency rulemaking process.

Whether that is necessary is a matter of dispute, however. 

On Monday, the Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) voted on party lines 6-4 to require DHS to promulgate an emergency rule for the order and set a 30-day deadline for the department to comply. The Republican supporters of the directed contended the order wasn’t lawful otherwise.

Gov. Evers' chief legal counsel Ryan Nilsestuen
Gov. Evers’ chief legal counsel Ryan Nilsestuen

But Evers’ lawyer has stated the order was drawn to align with last May’s state Supreme Court ruling that threw out Wisconsin’s Safer At Home order. That ruling left intact the authority of the state health officer, Palm, to institute restrictions on gatherings, according to Ryan Nilsestuen, chief legal counsel for the governor’s office.

Hours before the lawsuit was filed, at a media briefing conducted with DHS, Evers  confirmed to reporters Tuesday that the administration would not promulgate an emergency rule despite the JCRAR action. 

“There’s no reason to have a rule prepared because we have an emergency order that is in place in the state of Wisconsin,” Evers said.

Besides arguing that  the rulemaking process doesn’t apply, Nilsestuen added that since the order itself expires three days before JCRAR’s  deadline, “there’s no consequence.”

“Instead of actually taking concrete action to do something with the pandemic,” Nilsestuen said, “it was a pointless exercise in order to make a political point — nothing more, nothing less.”

No word from Republicans

In his opening remarks at Tuesday’s briefing, Evers sharpened his criticism of GOP lawmakers who control the Legislature for not meeting in six months to address the pandemic.

Tony Evers
Gov. Tony Evers speaks to the media at a Department of Health Services briefing in June. (Screen capture from DHS YouTube channel.)

Evers said he has not heard from the Republican leaders of the state Legislature after sending them a three-page letter Monday that urged them to meet and challenged them to offer a clear plan to help reduce the spread of the coronavirus.

The governor acknowledged that many state residents “have had to put plans on hold, cancel weddings, vacations, celebrations, change their businesses, alter how they live and work and sacrifice so much over the past eight months.”

But that is not enough, he said. “When I say we need a huge, united, statewide effort, I mean everyone — including elected officials. It’s been more than 180 days since the Legislature last met,” he said.

The Legislature last met more than 180 days ago, Evers said, and have instead gone to court, on their own or in support of others, “trying to thwart every state effort to keep Wisconsinites healthy and safe.”

Speaking in the governor’s conference room in the state Capitol, the usual location for the regular media briefings on the state’s battle with the pandemic, Evers echoed  the words of his letter Monday to Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) — but with a slightly harder edge.

 “Time and time again we’ve heard that Republican legislators just want a seat at the table,” Evers said. “I’ve been sitting here at this table, which is the same place I’ve sat about once a week for months now, and have yet to hear any ideas, plans or solutions.”

The governor also escalated his criticism of a Republican idea, described by Sen. Van Wanggaard in an interview with the Milwaukee Journal Sentinel, to come into session next month and vote to override the latest health emergency and the statewide mask requirement that it includes.

But, where his letter to Vos and Fitzgerald expressed the hope that the story was not accurate, on Tuesday he granted no such benefit of the doubt. “Not only that, but they intend to wait to take that vote until after Election Day,” Evers said, speaking, as he usually does, not just to the reporters listening on Zoom but to members of the public watching on WisconsinEye or YouTube.

With the “near-exponential increase in cases,” he added, voters deserve to know “whether our state will once again be thrown into chaos as a result of yet another Republican effort to prevent us from keeping people safe.”

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Evers called on members of the public to contact their lawmakers “and ask them whether they support our state’s public health emergency, whether they support requiring face coverings in public places like 72% of Wisconsinites. Whether they believe the Legislature should come in for a vote in advance of the November election.”

Responding to a reporter’s question, Evers said that he continued to believe that the lawmakers could still set aside what to now has appeared to be ironclad resistance to stronger measures in the state. He cited the day’s record death toll of 34.

“I’m hoping that the severity of what’s going on in the state of Wisconsin now will bring people to the table.”

Getting people to ‘do the right thing’

Asked about anecdotal reports around the state of widespread disregard not only of the state’s mask requirement but social distancing limits and the indoor capacity restriction, Evers demurred at the question of whether tougher enforcement might be warranted.

That question arose Monday in a phone conference with other Midwest governors, “talking about ways that are of some consequence that encourage people to do the right thing,” he said.

“Most of our neighboring states are having some of the same problems we’re having. But, I would say it’s difficult,” said Evers. Police could not be expected to “be rounding up people and doing something to convince them to wear a mask,” he continued, “whether it’s huge fines or whatever that could be.”

Instead, “it’s about individual responsibility,” the governor said, comparing obeying health orders such as mask-wearing or obeying capacity restrictions to “all sorts of regulations that people do observe,” such as hunting limits. “There’s all sorts of restrictions in our state that, frankly, aren’t necessarily policed on a 24/7 [basis]. People just respect it and do it. That’s what we need to do in our state.”

Evers also said that his own conversations with residents from around the state persuade him that “the mask order has made a difference” and people are adhering to it.

In response to another question about why the state’s rate of infection has risen so much, he reiterated what he has been saying frequently in recent weeks: that the Wisconsin Supreme Court throwing out the Safer At Home order in May led to a “chaotic situation.”

“The state was changed from some thoughtful mitigation practices, and [from] moving away from those mitigation practices in a thoughtful way, to Boom — it’s over. And eventually it caught up with us.”

Still, “people are tired of the pandemic,” Evers said. “And they’re tired of wearing a mask” — leading, he added, to recent polling data suggesting “about 30% of the people are not supportive of a mask [requirement] of any kind. And that’s a bunch of people.”

In the face of that, “we want to stay the course and not lose focus,” Evers said. “We have got to turn this around.”