BARRON, Wis. (CN) — A northern Wisconsin judge left the state’s mandate limiting public gatherings and capping bar and restaurant capacity in place Monday, ruling against conservatives fighting to end such restrictions and handing the Democratic governor his second virus-related court win in a week.
After acting Wisconsin Department of Health Services chief Andrea Palm ordered the public gatherings limits at Governor Tony Evers’ behest earlier this month, conservatives immediately began mobilizing 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 and lasts until Nov. 6, although it could be extended.
Evers and his health chief said at the time that they were responding to a major surge in coronavirus activity in the Badger State, which has raged on unabated and resulted in the governor activating a field hospital south of Milwaukee for an overflow of Covid-19 patients from overwhelmed hospitals last Wednesday.
Milwaukee Mayor Tom Barrett opted to stick with the city’s own stringent public health guidelines for businesses instead of adopting the governor’s mandate, indicating at least one state leader is staying with a local response instead of the governor’s statewide order.
Wisconsin has repeatedly broken daily records for confirmed infections, deaths and hospitalizations in recent weeks. As of Friday, Wisconsin has 166,186 total cases of the virus with 1,574 deaths, according to the state health department.
Last Monday, the Republican-controlled Wisconsin Legislature’s Joint Committee for Review of Administrative Rules—the body the Wisconsin Supreme Court indicated must be involved in formal rulemaking procedures when it struck down Evers’ first statewide coronavirus emergency declaration in May—voted 6-4 along party lines to submit the public gatherings limit to those rulemaking procedures, which involves more debate and public hearings over the next three weeks and could result in the order being undone.
That move came the same day St. Croix County Circuit Court Judge Michael Waterman upheld a separate mask mandate the Evers administration enacted in late July after the governor was sued by conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, over the order. WILL’s founder and general counsel Rick Esenberg pledged to appeal Waterman’s decision but did not respond to an email Monday morning asking for an update on the status of that appeal.
One day later on Oct. 13, the Tavern League of Wisconsin – one of the state’s most powerful lobbies representing one of its signature industries – sued in Sawyer County Circuit Court over the public gatherings mandate, arguing that its limits amounted to a “de facto closure” order for the bars and restaurants it represents, one of which joined the lobbying group in its lawsuit.
Sawyer County Circuit Court Judge John Yackel agreed the following day and put the public gatherings order on hold pending litigation with a decision that did not offer any explanation for the court’s move.
Arguments on Monday over an injunction the Tavern League requested to block the mandate took place in the court of Judge James Babler in nearby Barron County.
Appearing on behalf of the tavern lobby and a Sawyer County restaurant was Josh Johanningmeier, an attorney and shareholder at the Madison office of Godfrey & Kahn, who argued the state high court’s decision from May precludes Palm from issuing the type of emergency rule which capped capacity at bars and restaurants without bringing the legislature into the process.
Despite the state’s highest judicial body declaring the scope of her authority, Johanningmeier said Palm has eschewed proper rulemaking in favor of “another singular proclamation” and accused her and the health department of asking the court to allow them to sacrifice the peoples’ safeguards and disregard Wisconsin law “because they feel it is not good enough for them.”
The pandemic is “real and horrific,” Johanningmeier said, “but it did not suspend the rule of law.”
Assistant Attorney General Colin Hector appeared on behalf of the state and explained Monday that the health department, Palm and Evers are not foreclosed from applying the law as it stands to fight the coronavirus via executive powers and should not be forced to go through the kinds of rulemaking protocols conservatives insist they must adhere to.
Hector argued what Palm did “is quintessentially an executive function: applying the law. It is not lawmaking.”
The state’s attorney said the pandemic is akin to a natural disaster like a fire or a flood, asking if one of those would be treated the same by the legislature if it were killing around 20 people per day. While the state does not want to minimize the harm suffered by businesses “shellshocked” by the pandemic, Hector opined that the economy can only truly open back up once the novel coronavirus is under control.
Also appearing Monday was Misha Tseytlin, an attorney with the Chicago office of Troutman Sanders whom Republicans in the legislature have tapped multiple times in recent years at taxpayer expense in order to curtail the executive powers of the Democratic governor and attorney general, including in a sprawling fight over lame-duck laws from 2018 limiting those powers.
Tseytlin, who represented the intervening Pro-Life Wisconsin organization, was Wisconsin’s solicitor general under former Republican Governor Scott Walker from 2015 until 2018, when Walker was defeated by Evers.
In the end, while Babler admitted that the issue is “not as clear cut as either side would like to make it,” the judge found that the plaintiffs have not adequately proven that they have been complying with the public gatherings mandate and that complying with it has somehow harmed them, offering that “I merely have the theoretical issue that if they were to comply they would suffer harm.”
Babler called himself “the umpire, not the partisan participant in this action,” which he conceded has excited passions on both sides since it pertains to the lives and livelihoods of people across Wisconsin.
Finding that the state high court’s May decision did not offer enough clarity on the extent of Palm’s authority despite its 150 pages and multiple concurring and dissenting opinions, Babler denied the Tavern League the injunction it wanted and denied Tseytlin and Johanningmeier’s request for a stay of his order pending appeal.
Johanningmeier and representatives with the Tavern League could not be immediately reached for reaction to Babler’s ruling from the bench Monday.
Evers said in a statement released shortly after the roughly 100-minute injunction hearing ended that “this critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings.”
“This crisis is urgent,” the governor said. “Wisconsinites, stay home. Limit travel and going to gatherings, and please wear a face covering whenever you have to go out.”
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