Wisconsin Supreme Court Questions Capacity Limits Order

Dec 17, 2020

Updated 1:56 p.m. CST

Wisconsin Supreme Court justices on Thursday questioned the legality of an order issued by the state's top health official limiting how many people can gather in bars and restaurants given the court's decision earlier this year that a similar order needed legislative approval.

Democratic Gov. Tony Evers' administration argues that it can issue orders limiting indoor capacity as a way to address public health emergencies such as the coronavirus pandemic. But an attorney representing the Mix-Up Bar in Amery and Pro-Life Wisconsin contends that the conservative-leaning court's ruling from earlier this year set a precedent that requires such moves to be approved by the Legislature, which is controlled by Republicans.

Justices on Thursday wrestled with how the order in question could be legal given it's May ruling that overturned Evers' “safer at home” order, which closed some businesses as part of the state's initial response to the pandemic.

“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 Justice Brian Hagedorn, a conservative who has sided with liberal justices in recent high-profile cases, including their dissent in the May order striking down the safer at home order.

The court was controlled 5-2 by conservatives when it issued that decision. It is now 4-3 and Hagedorn's vote could be critical. But his question about adhering to the court's precedent, even one he disagreed with, appeared to suggest he may be unwilling to side with Evers in this case.

Most of the questioning Thursday was driven by the liberal justices, who asked whether the previous ruling would still allow the state health department to make limited orders affecting businesses without legislative approval. That ruling, they noted, said it was OK for the department to order schools to close.

Assistant Attorney General Colin Hector, representing the Evers administration, said ordering capacity limits was allowed under existing powers of the health department to address public health emergencies, as well as the court's previous decision.

Attorney Misha Tseytlin, who represented the Tavern League and the anti-abortion rights group Pro-Life Wisconsin challenging the order, said the state was trying to “make an end run around the Legislature” and the precedent set by the court, which didn't indicate when it might rule on the current case. He also argued that the issue was moot because the capacity limits order expired more than a month ago.

"[Hector], again representing the same agency, in the same pandemic, is attempting to get this court to take another bite of the apple. Frankly, cynically because my friend believes the composition of this court has changed," said Tseytlin.

However, Department of Health Services Secretary Andrea Palm wants to issue a new order limiting indoor capacity, which would remain in effect for 28 days, but she doesn’t feel she legally can do so until the court rules in the case, attorneys for the state Department of Justice said in legal filings.

The Oct. 6 order limited the size of indoor public gatherings to 25% of a building or room’s occupancy or 10 people in places that don’t have an occupancy limit. Mass gatherings, particularly indoors, are among the primary ways that COVID-19 has been shown to spread.

Under a challenge from the Tavern League of Wisconsin, a Sawyer County judge blocked the capacity limits order on Oct. 14, only to have a Barron County judge reinstate it five days later. The 3rd District Court of Appeals blocked the restrictions on Oct. 23 and issued its final order on the same day the limits expired, Nov. 6.

The capacity limits case is one of several pending legal challenges to Evers' attempts to address COVID-19. The state Supreme Court heard arguments last month in a lawsuit supported by Republican legislative leaders to strike down Evers’ statewide mask mandate, which is set to remain effect until Jan. 19.

COVID-19 cases in Wisconsin spiked in mid-November and have been trending downward since then. As of Wednesday, nearly 445,000 people in Wisconsin had tested positive for COVID-19 and 4,196 people had died of the disease since the start of the pandemic, according to the state Department of Health Services.