Evers’ 25%-capacity limit order is back on, rules judge

By: - October 19, 2020 12:45 pm

Customers eat and drink at the Brat Stop, in Kenosha, Wis. on May 15, 2020. (Scott Olson | Getty Images)

A Barron County judge on Monday reinstated the state’s 25%-capacity limit order to slow the spread of the coronavirus, denying a temporary injunction against the order and lifting a temporary restraining order that was instituted last week after the Tavern League of Wisconsin had sued to block the measure.

Ruling from the bench, Barron County Circuit Judge James Babler said that neither the League nor any other plaintiffs, who had submitted affidavits as testimony in the case, had shown they had been harmed by the order. They also had not shown they were likely to prevail in the lawsuit, Babler ruled.

Although in comments in court after the ruling the plaintiffs appeared to be considering an appeal, a subsequent statement from the Tavern League appeared to take that prospect off the table.

“We are obviously disappointed in the ruling and the catastrophic effects it will continue to have on small businesses across Wisconsin,”  the lobbying group stated on its website. “We will continue to operate observing the best practices of the WEDC to provide a safe environment for our employees and customers.”

It’s the second time in a week that a local judge has backed initiatives from the Evers administration to combat the virus, turning back lawsuits claiming that the executive branch lacks authority to do so. Last week, a St. Croix County judge rejected an attempt to block Gov. Tony Evers from declaring new health emergencies to combat the COVID-19 pandemic; that ruling left intact the latest mask order issued by the governor.

“This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings,” Evers stated shortly after the decision. “This crisis is urgent. Wisconsinites, stay home. Limit travel and going to gatherings, and please wear a face covering whenever you have to go out.”

Arguing for the Tavern League and other plaintiffs, including a Sawyer County supper club, attorney Josh Johanningmeier said the order submitted by DHS Secretary-designee Andrea Palm that took effect Oct. 8 violated the state Supreme Court ruling May 13 throwing out Wisconsin’s Safer At Home order restricting people to their homes except for essential activities. That ruling stated that DHS needed to go through the state’s emergency rulemaking procedure to continue the Safer At Home order, allowing the state Legislature to review it.

The plaintiffs say the problem is not the order itself — they are fighting it based on procedure. 

“Nobody disputes that COVID is a public health crisis, and the state has to address it,” Johanningmeier said. “But the question at issue here is what powers do the defendants have to address the pandemic?”

He argued that the capacity order, which restricts public gatherings be limited to 25% of the capacity of the space, and includes bar and restaurant occupancy, also needed to go through emergency rulemaking.

“Formal rulemaking would ensure that the agency wouldn’t do something like this by issuing an arbitrary order,” Johanningmeier said.

But Colin Hector, an assistant state attorney general defending the capacity-limit order, argued that state law “says exactly what [DHS] can do — close schools or forbid public gatherings — and the circumstances when the agency can exercise that power: to protect against outbreaks or epidemics.”

That element of the state’s public health law was left intact by the wording of the Safer At Home ruling, Hector said.

In his ruling, Babler expressed frustration with the Safer At Home ruling itself, and that it relegated the issue about public gatherings to a footnote. “I look to the Supreme Court for clarity in following their decisions,” the judge said. “I am a believer in following Supreme Court decisions — I’m not here to make new law.”

Babler also observed that there was no evidence either that the plaintiffs had actually reduced their occupancy as the order required and suffered as a result.

“There is nothing in the affidavits to show that any of the plaintiffs have complied with the order [or] that complying with the order has somehow harmed them,” the judge said.

Because he was denying the injunction against the order, Babler also said he wouldn’t extend the temporary restraining order from Oct. 14 that was granted by a judge in Sawyer County where the case was originally filed. He noted that order was granted solely on the strength of the brief from the Tavern League without an opportunity for DHS to respond, and might not have been granted otherwise.

This article was updated Monday afternoon with new information from the Tavern League indicating it would not appeal the decision.


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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.