Evers asks Wisconsin Supreme Court to allow new capacity limits

Customers dine while social distancing at Pete’s Pub on E. Brady Street. Gov. Tony Evers' administration is asking the Wisconsin Supreme Court to allow state health officials to issue a new order to limit capacity in indoor settings for about a month.

MADISON – Gov. Tony Evers’ administration is asking the Wisconsin Supreme Court to allow state health officials to issue a new order to limit capacity in indoor settings for about a month. 

The order would for 28 days limit capacity at businesses such as bars and restaurants to 25% of total occupancy limits or four people per 1,000 square feet if no occupancy limit is assigned to the establishment. 

An identical order issued earlier this year triggered the lawsuit that was argued Thursday before the state’s highest court. Initially brought by the Tavern League of Wisconsin, bar owners argued such a small customer base would make it more costly to be open than to be closed. 

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But state Supreme Court justices on Thursday questioned whether such an order would be legal, given the precedent of a ruling they issued in May that required the Evers administration to use a process known as rulemaking, which requires such policies to go before a legislative committee for approval. 

“To turn on that now would be to undercut many of the principles that we’ve laid out in the way that we conduct ourselves as an institution,” said Brian Hagedorn, a conservative justice who disagreed with the May ruling from the court, siding that time with liberal justices in the minority. 

An attorney for an Amery bar and Pro-Life Wisconsin, the plaintiffs in the lawsuit, told justices that the issue is moot because the order at the center of the lawsuit expired in early November after an appeals court blocked it anyway.

But the Department of Justice, which is representing Evers, asked the justices to take up the matter and issue a ruling in its favor because Health Services Secretary Andrea Palm wants to issue the new 28-day order.

“Given the continuing high level of COVID-19 activity, DHS has drafted a subsequent order to forbid certain indoor public gatherings,” DOJ attorneys wrote in a November filing in the case. “Palm has attested that DHS wishes to issue Emergency Order 4 as soon as possible, but believes they could not currently do so given the court of appeals’ holding; should this Court reverse that holding, DHS would issue the order.”

The case is the latest challenge to Evers’ power during the coronavirus pandemic — conservative Supreme Court justices in May sided with Republican lawmakers and struck down much of Evers’ stay-at-home order and required the Evers administration to implement such an order through rulemaking, which gives a Republican-controlled legislative committee veto power over such restrictions. 

Plaintiffs argue capacity limits must be issued through the same process given the May ruling, and the matter is moot anyway because the order has expired. 

“But State Defendants press on, cynically hoping that a change in the composition of this Court … will give them carte blanche to impose selective capacity limits regimes in the future, without working with the Legislature,” the plaintiffs’ attorneys wrote in a November filing. 

Since the ruling on the stay-at-home order, Justice Jill Karofsky, a liberal, has joined the court, after being elected in April. She defeated conservative Justice Daniel Kelly, who sided with the majority in that 4-3 ruling.

Evers’ attorneys argued the more recent capacity limits were issued using discretion the administration has in implementing existing law, which the May ruling did not affect.  

“The executive must exercise discretion to determine how to apply the policy determinations embedded in the law,” the attorneys said in their filing. 

The now-defunct order was issued — and quickly blocked — as cases of COVID-19 were exploding in Wisconsin, making the outbreak in the state one of the worst in the country at the time. Infections have decreased in the state since a peak in mid-November, but deaths remain high. 

Evers also faces another lawsuit before the Supreme Court over a statewide mask mandate, which is the only order in place in Wisconsin aimed at curbing the spread of COVID-19.

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Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.