High court hears 25% capacity limit arguments

Having stripped the state health department in May of its ability to unilaterally impose wide-reaching public health orders to curb a deadly disease, the Wisconsin Supreme Court heard arguments Thursday about whether even a more limited order was out of bounds.

Thursday’s oral arguments revolved around the ill-fated limit on public indoor gatherings that Gov. Tony Evers ordered starting Oct. 8. The order limited public indoor gatherings to 25% of the rated capacity for the space to curb the spread of the virus responsible for COVID-19.

The order was originally set to run for 28 days — two 14-day incubation periods for the coronavirus — in hopes of cutting off the surge that began in Wisconsin in late August and roared out of control through October and November. But the order was blocked when the Tavern League of Wisconsin sued to challenge it, then unblocked when the lobbying organization lost in circuit court.

The Tavern League then dropped out of the case, but a group of other plaintiffs stuck with it, led by a tavern in Amery called The Mix-Up, along with Pro-Life Wisconsin. The Third District Court of Appeals blocked the order again with an injunction in November.

That ruling sent the case back to circuit court for a trial on the order, but the governor’s office appealed the injunction to the state Supreme Court, which took the case. Because the order expired Nov. 6, Thursday’s arguments centered on “the pure legal issues” surrounding the order itself, as Justice Brian Hagedorn observed.

Those legal issues boil down to whether the Supreme Court’s May 13 ruling that threw out the Evers administration’s Safer at Home order also restricted the state Department of Health Services (DHS) from instituting the 25% capacity limit order.

The Safer at Home ruling — decided on a 4-3 vote — for the first time put limits on a state law granting the DHS secretary the power to issue orders and take other actions to combat the spread of a communicable disease. While the law does not include any reference to administrative rulemaking, the court majority concluded that those emergency health orders must go through the state’s rulemaking process, which would subject the orders to review and possible override by the state Legislature.

The same state health law includes the power to limit public gatherings among the health officer’s powers, and passages in the ruling appeared to the governor’s legal team to suggest that such limits could be imposed without requiring rulemaking.

The 25% capacity limit order’s restrictions “reflect a natural way to carry out the legislative mandate,” said Colin Hector, an assistant state attorney general arguing for the administration.

That mandate is the health law. “The plain language of the law” permits the agency to restrict “public gatherings for a particular purpose to control outbreaks or epidemics,” he said. And “basic constitutional principles … permit the executive branch to exercise the discretion that’s been invested in it when it applies and enforces the legislative mandate.”

But the attorney arguing for the plaintiffs to permanently block the order argued that the May 13 ruling encompasses orders such as the one on capacity limits. “It is unambiguously clear that a selective business closure and capacity limits regime must be subject to rulemaking,” said Misha Tseytlin.

Thursday’s arguments were dominated by questions from two of the court’s liberal justices — Ann Walsh Bradley and Rebecca Dallet. Both, along with Hagedorn, often part of the court’s conservative block, dissented with the May 13 decision.

Now Dallet and Walsh Bradley echoed the arguments made by the plaintiffs challenging the 25% capacity limit order — doing so, it appeared, to prod the governor’s lawyer to dissect the Safer at Home ruling.

Walsh Bradley asked about an “inconsistency” between the ruling’s statement that, where the health law is concerned, “no order is exempted from the definition of a rule,” while a footnote allowed the portion of the state Safer at Home order that closed schools to remain in effect.

When the decision states “there’s no exemption, and then [has] exemptions in the footnotes,” she asked, “How do you reconcile that?”

Hector turned to the state law itself for his answer. He suggested that the May 13 ruling was acknowledging that the school closures “fit under the explicit authority of the agency.”

Dallet referred later to that exchange. The May 13 ruling “is internally inconsistent,” she declared. “That’s why we’re here today. So what are we supposed to do about that?”

Hector acknowledged that the Evers administration disagrees with the ruling and said that “the court may want to revisit that decision in the future.” But, he added, the argument for the 25% capacity limit order isn’t based on throwing it out. The order “is simply not a rule” under the ruling’s own reasoning, he said.