MADISON – The Wisconsin Supreme Court again on Wednesday said Gov. Tony Evers acted illegally when he took steps to curb the spread of COVID-19 without first getting approval from the state Legislature.
In a 4-3 decision, the conservative majority ruled Evers should have sought to limit capacity in bars and restaurants through a legislative process known as rulemaking — siding with a lawsuit brought by an Amery bar and Pro Life Wisconsin and was first filed by the Tavern League of Wisconsin, which dropped out of the legal fight after a lower court sided with Evers.
It comes two weeks after the same conservative majority ruled Evers did not have the authority to issue multiple health emergency orders without the Legislature’s participation.
Coupled with a ruling last spring that struck down Evers’ stay-at-home order, Evers will have fewer ways to control the spread of the coronavirus if a new wave of cases hits the state in a way similar to Michigan and other states experiencing surges.
The Republican-controlled state Legislature has fought all measures to control the virus, including the statewide mask mandate which was struck down by the March ruling by the Wisconsin Supreme Court, making it unlikely Evers would gain approval from the lawmakers for such mitigation efforts.
Plaintiffs in the lawsuit argued capacity limits must be issued through the same process given the May ruling that struck down the stay-at-home order.
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 now-defunct order was issued in the fall — 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 vastly decreased in the state since a peak in mid-November, but deaths remained high through the beginning of 2021.
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The order limited the size of indoor public gatherings to 25% of occupancy or to 10 people in places without an occupancy limit.
Supreme Court Chief Justice Patience Roggensack for the majority said the limits should have been pursued as a rule given the court’s May ruling striking down the stay-at-home order.
Conservative justice Brian Hagedorn concurred separately, saying though the May ruling was flawed in his view, it now governs how Evers may implement mitigation efforts.
Hagedorn in May sided with the court’s liberal minority to oppose striking down the stay-at-home order.
“We held that (the spring) statewide order limiting public gatherings (along with a number of other restrictions) meets the statutory definition of a rule, and must be promulgated as a rule to have legal effect. Respect for this court and its authority compels me to stand by that decision today,” he wrote.
Justice Ann Walsh Bradley, in a dissenting opinion, said the majority was putting public health at risk.
“At a time when public health experts are imploring pandemic-weary Wisconsinites to stay vigilant, a faulty statutory analysis once again leads this court to undermine public health measures,” she wrote.