Customers eat and drink at the Brat Stop, in Kenosha, Wis. on May 15, 2020. (Scott Olson | Getty Images)
In the three weeks since it took effect, a state order limiting indoor gatherings to slow the spread of COVID-19 has been rendered useless by court challenges blocking it, unblocking it and then blocking it again.
Now the Evers administration has decided to pull the lawsuit challenging the order out of the appeals court, where last week the limit was put on hold for the second time, and ask the Supreme Court to take it directly.
On Friday, the justices ordered plaintiffs in the case to submit a response on Monday to the administration’s petition.
The subject of the lawsuit is the state health order restricting indoor gatherings in public buildings to 25% of the capacity of a room or building. Bars and restaurants, where people have been gathering with increasing frequency and in greater numbers, were a principal target of the order.
In seeking to move the lawsuit blocking the order to the state’s highest court, the administration is following a playbook more often used by its challengers.
When Republican leaders of the state Legislature sued to end the state’s Safer At Home order in the spring, for example, they bypassed lower courts and went straight to the Supreme Court, which sided with the GOP lawmakers on a 4-3 vote, throwing out the statewide restriction on movement, gatherings and travel.
On Wednesday, Oct. 28, the Supreme Court also authorized a single plaintiff to bypass lower courts in a lawsuit against Gov. Tony Evers for declaring new states of emergency, as well as instituting mask orders, in July and again in September in response to the COVID-19 pandemic.
The plaintiff, Jeré Fabick, is a Waukesha business owner and also a policy advisor and board member for The Heartland Institute, a rightwing policy advocacy organization that opposes many government health and safety regulations. That lawsuit is separate from one currently in Polk County Circuit Court that the Wisconsin Institute for Law & Liberty (WILL) is pursuing on behalf of three northern Wisconsin residents.
Justice Rebecca Dallet opposed letting the Fabick lawsuit bypass lower courts. “Our original-action jurisdiction is not meant to allow a single, disgruntled taxpayer to jump the line to achieve a desired outcome,” she wrote in her dissent, joined by the two other liberal justices on the seven-member high court.
But moving the capacity-limit lawsuit to the state Supreme Court is “a strategic decision,” Ryan Nilsestuen, chief legal counsel for Evers, said Friday — calculating “that we would get a more expeditious final result from the Wisconsin Supreme Court, because that’s where the case was going to end up eventually, anyway.”
“Every single day” that the order is blocked and that debate persists over whether DHS has the authority to issue such an order “is a day that jeopardizes DHS’s ability to promptly and (and thus effectively) help control the surge of COVID-19 that has made Wisconsin a national COVID-19 hotspot, has led us to rapidly approach hospital capacity, and has caused more and more deaths,” the petition from the governor’s office to the high court states.
The capacity-limit order, which took effect Oct. 8, is set to expire Nov. 6. Evers said the duration was set to cover two 14-day incubation periods for the novel coronavirus that causes COVID-19.
Since then, however, the order has been on hold for almost as long as it has been active. On Oct. 14, six days after it took effect, the Tavern League of Wisconsin and two allied plaintiffs sued in Sawyer County Circuit Court to end the order and won a temporary injunction blocking it. Five days after that, on Monday, Oct. 19, the injunction was lifted. On Friday, Oct. 23, the state 3rd District Court of Appeals reinstated the injunction, once again blocking the order.
“It really has not been allowed to work,” said Andrea Palm, secretary-designee of the state Department of Health Services (DHS) at a DHS media briefing earlier this week.
That remains evident in the latest data on COVID-19 in Wisconsin presented at a rare Friday morning DHS press conference.
As of Friday, said Palm, DHS has logged 5,096 new positive tests for the coronavirus, bringing the total number of confirmed COVID-19 cases to 220,092. The death toll has risen to 1,972.
Virus keeps spreading
On average over the last seven days, there have been 4,231 new cases per day, Palm said — an increase of more than 500% compared with the seven-day average of 696 confirmed cases two months ago.
“Hospitals in every region of our state are experiencing staffing strains, all while COVID-19 hospitalizations continue to rise,” Palm said. As of Friday afternoon, the Wisconsin Hospital Association reported that 1,546 people were hospitalized with COVID-19, and only 10% of the state’s intensive care unit beds are available.
In response to the continued spread, the state this week expanded community testing. Evers said Friday that federal CARES Act funding will cover the cost of that, but new financial sources — whether from a new federal relief bill or from existing state funds — will be necessary to continue to provide testing and other tools such as contact tracing after Dec. 31, when the CARES Act funding expires.
Palm emphasized that while testing for anyone who has had symptoms or who has been exposed to the virus provides essential information to understanding the spread, by itself it won’t curb the virus. That, she said, requires people to isolate if they are confirmed positive; quarantine if they’ve been exposed or have been tested but not yet received the result; and continue to stay home, wear masks when they go out and stay six feet away from anyone outside their immediate household.
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The virus “is spreading in all age groups in the state of Wisconsin and in every community in the state of Wisconsin, in every corner of the state of Wisconsin,” Palm said. And because it spreads easily and aggressively in gatherings, she and Evers both emphasized on Friday, people must avoid gatherings that include anyone beyond the people they already live with.
“Across the country, as we see cases escalate, we see the number of contacts from each case growing as people are less vigilant about those things like social distancing, and gatherings, and the mitigation strategies that we know work,” Palm said. “This escalation is taxing our systems, it is taxing public health, it is taxing our healthcare systems.”
The best way to control the spread, she reiterated, is to “work together to stop the spread by doing the things that we know work by staying home by wearing a mask, by physical distancing, by good hand hygiene — by doing the stuff that we know are good public health tactics to stop the spread of this disease.”
Even with the alarm about the progression the virus has made through the state, Dr. Ryan Westergaard, chief medical officer at the Bureau of Communicable Diseases at DHS, said there is still time to reverse its course.
“It’s been shown in many other places that even when infection rates are high, we can turn it around,” he said. “But we have to really get organized and really do this well, very soon. If we don’t do that it would not be surprising for numbers to continue to get worse.”
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