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.
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.
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