Judge temporarily blocks state’s capacity-limit health order

Ruling in a lawsuit brought by the Tavern League of Wisconsin, a Sawyer County circuit judge on Wednesday blocked the state health order limiting public gatherings to 25% of a room or building’s capacity.

Circuit Judge John Yackel issued a temporary restraining order Wednesday morning barring enforcement of the capacity-limit order. Yackel set a hearing for 9 a.m. Monday, Oct. 19, on a temporary injunction against the order.

The Tavern League, along with the Sawyer County Tavern League and the Flambeau Forest Inn, filed the lawsuit Tuesday, Oct. 13, to overturn the health order. The order was issued Oct. 6 by Andrea Palm, secretary-designee of the state Department of Health Services (DHS), under the direction of Gov. Tony Evers, and took effect Thursday, Oct. 8.

The order followed a four-week long spike in which the rate of COVID-19 infections has tripled.

On Tuesday, Wisconsin recorded 3,279 confirmed positive tests for the coronavirus, a record number for a single day, and 34 deaths from COVID-19, also a one-day record. The same day, the Wisconsin Hospital Association reported 959 people were hospitalized for the illness, also a new record.

Hospital occupancy has skyrocketed in parts of the state, leading DHS to open a backup alternate care facility for COVID-19 patients at State Fair Park in West Allis.

The health order restricts public indoor gatherings, including at bars and restaurants, to 25% of the location’s rated occupancy as a means of reducing the spread of the virus. It expires Nov. 6.

Palm, DHS and Sawyer County Health Officer Julia Lyons are named as defendants in the lawsuit.

The lawsuit argues that because of a May 13 state Supreme Court ruling that ended the statewide Safer At Home restriction, DHS was required to submit the capacity-limit order as an emergency rule, requiring review by the state Legislature. The Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) voted on party lines Monday, Oct. 12, to direct DHS to promulgate the order as such a rule.

The Evers administration has argued that the Supreme Court’s Safer At Home ruling specifically allowed DHS to issue health orders limiting gatherings without going through the rule process.