Wisconsin Appeals Court Tosses Limit on Public Gatherings

The Dairyland Brew Pub opens to patrons in Appleton, Wis., on May 13, 2020. (William Glasheen/The Post-Crescent via AP File)

WAUSAU, Wis. (CN) — A Wisconsin appeals court on Friday blocked enforcement of the Democratic governor’s emergency order limiting public gatherings and capping bar and restaurant capacity as a means to contain the state’s rampant spread of Covid-19.

The 2-1 ruling from the District III Court of Appeals in Wausau reverses a verbal decision entered by Barron County Circuit Court Judge James Babler a little more than two weeks ago upholding the public gatherings mandate made via executive order on Oct. 6 by Wisconsin Department of Health Services chief Andrea Palm at the behest of Governor Tony Evers.

Conservatives immediately mobilized to undo the order on the basis that it was issued beyond the executive branch’s authority and would further tank small businesses already struggling in light of the coronavirus pandemic.

Among other measures, the public gatherings order limits bars, restaurants and other businesses that allow public entry to 25% of their capacity. The order was set to expire on Friday before the appeals court nixed it.

At the time of the emergency order, Evers and his health czar were responding to a massive surge in coronavirus activity in the Badger State, which also prompted the governor to activate a field hospital south of Milwaukee for an overflow of Covid-19 patients from overburdened hospitals.

The Badger State’s virus surge, one of the worst in the country by many metrics, has showed no signs of slowing down in the meantime. The state has confirmed more than 110,000 new cases since Evers’ emergency order went into effect, and Wisconsin now clocks in at 249,924 total cases and 2,194 deaths as of Thursday, according to statistics from the Department of Health Services.

The DHS Covid-19 dashboard also notes that 88% of Wisconsin hospital beds are currently in use and the rate of coronavirus deaths among confirmed cases has nearly tripled since the public gatherings and capacity limits were enacted.

The original lawsuit over the public gatherings order was brought by a Sawyer County restaurant, the Sawyer County Tavern League and the Tavern League of Wisconsin, one of the state’s most powerful lobbies representing one of its signature industries, but Friday’s decision was not made in response to any filing they made.

The Wausau-based appeals court, concluding the lawsuit over the public gatherings order was appropriate for summary disposition, reversed Babler’s order in that it denied a temporary injunction requested in part by a bar in Amery, a Polk County town of roughly 3,000 in northwestern Wisconsin, which had intervened in the original lawsuit.

Another party to that request for an injunction was Pro-Life Wisconsin, an intervening group which claimed that the public gatherings limit unlawfully prevents it from holding public events.

The Evers administration filed a bypass petition with the conservative-majority Wisconsin Supreme Court in the days leading up to Friday’s decision asking it to take up the public gatherings lawsuit, but the high court declined to get involved in a 4-3 decision along party lines.

An overhead view inside the Milwaukee Covid-19 field hospital. (Photo courtesy of Wisconsin Department of Administration)

The appeals court’s majority felt that a May ruling from the Wisconsin Supreme Court renders the October emergency order invalid and unenforceable as a matter of law because Evers and Palm did not first submit the order to formal rulemaking procedures that requires a Republican-controlled committee of the Wisconsin Legislature to sign off on it.

Judges Thomas Hruz and Mark Seidl’s eight-page majority decision agreed with the Amery bar’s contention that a 25% capacity limit amounts to a de facto closure which would cause irreparable harm in the form of a substantial loss of business.

Babler had found that since the plaintiffs could not prove they had been complying with the public gatherings mandate in the first place, any showing of harm was merely theoretical and there was not enough of a chance of success on the merits.

In a nine-page dissenting opinion Friday, Judge Lisa Stark argued that the majority’s decision is based on a selective reading of the high court’s May ruling that “considerably overreads” certain portions while ignoring others.

Stark said “the majority’s position is that [the high court’s ruling] holds that DHS must proceed by some form of rulemaking each time it exercises any discretion” granted under the relevant statutes, an interpretation she disagreed with.

The dissenting judge felt the majority was taking liberties with a portion of the high court’s May ruling that they claim subjects every DHS act or order to rulemaking procedures.

“Read in context, the court was making clear that when there is no specific statutory exception to rulemaking for the type of act or order under consideration, the act or order must be analyzed to determine whether it is in fact a rule,” Stark said. “[The high court’s ruling] does not, however, state that all orders issued under [the relevant statute] are automatically rules.”

Stark offered that if the state supreme court felt that DHS had no non-rulemaking authority at all, it would not have exempted from its decision a section of Evers’ original coronavirus lockdown order that closed schools for the remainder of the academic year back in March.

“The fact that the supreme court left a portion of the order untouched is a significant indication that the scope of the [high court’s ruling] is not nearly as broad as the majority thinks,” the judge wrote.

The appeals court decision grants a temporary injunction blocking the public gatherings order and remands the case back to the circuit court for further proceedings.

Evers’ office blasted the ruling on Friday as counterproductive to Wisconsin’s fight against the coronavirus on a day the state reported more than 6,000 new cases.

“We will continue challenging this decision, but the bottom line is that we can’t wait for the courts to figure this out—we need Wisconsinites to stay home and mask up, and it has to start today,” he said.

Misha Tseytlin, a lawyer with the Chicago branch of Troutman Sanders and former Wisconsin solicitor general under Republican Governor Scott Walker representing the Amery bar, declined to comment on the ongoing legal action.

Pro-Life Wisconsin is represented by Andrew Bath, executive vice president and general counsel with the Chicago-based Thomas More Society, a conservative advocacy group.

Bath applauded the appeals court ruling in a statement emailed to Courthouse News on Friday, saying “under our scheme of separation of powers the executive branch cannot seize control and exercise dictatorial power” using Covid-19 as an excuse.

“As federal and state judges across America have continued to remind us—even emergencies do not override citizens’ rights under the law,” Bath said.

More litigation from state conservatives resisting Evers and Palm’s executive orders attempting to stymie the coronavirus’ spread is set for arguments on Nov. 16 before the Wisconsin Supreme Court.

That action stems from a petition for original action brought by Jeré Fabick, the president of Fabick Cat, the Caterpillar equipment and engine dealer for the state of Wisconsin, the upper peninsula of Michigan and portions of Missouri and Illinois. Fabick is also an energy policy adviser at the Heartland Institute, a conservative think tank.

Fabick’s petition asks the high court to define the limits of Evers’ power to declare multiple states of emergency arising from the same public health crisis, ultimately with the aim of undoing Evers’ second and third coronavirus emergency orders from July and September, respectively, under which his administration entered the public gatherings mandate.

Legal representation for that petition comes from Andrew Fernholz, an attorney with the Waukesha-based firm Cramer, Multhauf & Hammes who also serves as president of the Milwaukee Lawyers Chapter of the Federalist Society.

The Wisconsin Institute for Law & Liberty, or WILL, a conservative advocacy group which has brought multiple legal actions against the Evers administration, sued in late August over the administration’s mandate requiring face coverings in public spaces.

After a circuit court judge upheld the mask mandate in mid-October, WILL asked the state supreme court to take on the case. The high court ultimately declined and stayed proceedings in that suit pending resolution of Fabick’s action.

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