The Wisconsin Supreme Court on Wednesday ruled that Gov. Tony Evers’ administration does not have the authority to issue capacity limits on bars, restaurants and other businesses without the Legislature’s approval, a ruling that comes two weeks after the conservative-controlled court struck down the state’s mask mandate.
The state Supreme Court also ruled last year in a similar case that the Democratic governor needed the approval of the Legislature, which is controlled by Republicans, to issue an emergency declaration that shut down businesses early in the COVID-19 pandemic.
There has not been a statewide capacity limit restriction in place since October. That order limited the size of indoor public gatherings to 25% of a building’s or room’s occupancy or 10 people in places that don’t have an occupancy limit. The on-again, off-again order was blocked by a state appeals court that month.
Even without statewide limits on capacity, there are local ordinances in effect in some places, including Dane County, putting a cap on how many people can gather indoors. Those local rules are not affected by the Supreme Court decision. However, those have been loosening as more people get vaccinated.
The Supreme Court ruled 4-3 on Wednesday that the order issued by Evers’ Department of Health Services meets the definition of a rule, which by law must go through the Legislature. The court’s four conservative justices ruled against Evers, while three liberals dissented.
Justice Ann Walsh Bradley, writing for the dissent, said the emergency order did not meet the definition of a rule and the Evers’ administration did not have to “go through the cumbersome rulemaking process.”
“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,” Walsh Bradley wrote.
The case was brought by the Mix-Up Bar in Amery and Pro-Life Wisconsin, a group that opposes abortion rights. They argued that the court’s 2020 ruling blocking the governor’s safer at home order set a precedent that requires such moves to be approved by the Legislature.
Assistant Attorney General Colin Hector, representing the Evers administration, said during oral arguments in December that 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.
Misha Tseytlin, attorney for the Mix-Up Bar and its owner, said in an email that the goal of Evers and Attorney General Josh Kaul, who is also a Democrat, was to have the court issue “a blank check to devastate any business, at a moment’s notice.” He said the ruling showed that a “small, family-owned restaurant like the Mix-Up can stand up to a powerful Governor and Attorney General and win when the law is on its side.”
Spokespeople for Evers and Kaul did not respond to messages seeking comment.
Although vaccinations are on the rise, so too are COVID-19 cases. The seven-day average of daily cases, which was fewer than 400 in mid-March, has doubled in Wisconsin over the past month and stood at 794 as of Tuesday, according to the state Department of Health Services.
From Platteville to the White House: Twitter responds to court ruling tossing out Wisconsin's stay-at-home order
Nick's on 2nd in Platteville
Iron Hog Saloon in Port Washington
Wisconsin last night
President Trump tweets support
The Great State of Wisconsin, home to Tom Tiffany’s big Congressional Victory on Tuesday, was just given another win. Its Democrat Governor was forced by the courts to let the State Open. The people want to get on with their lives. The place is bustling!— Donald J. Trump (@realDonaldTrump) May 14, 2020
Gov. Tony Evers
I am disappointed in this decision, but our top priority has been and will remain doing what we can and what we have to do to protect the health and safety of our state. After months of unproductive posturing, I hope the folks in the Legislature are ready to do the same.— Governor Tony Evers (@GovEvers) May 14, 2020
Bars rush to reopen
Blue Bar Quilts
Dane County Executive Joe Parisi
Rep. Robin Vos
I got rights
Surge in search for 'bars' on Google
Friends and Neighbors Bar in Appleton
Marvin Radtke toasts the opening of the Friends and Neighbors bar following the Wisconsin Supreme Court's decision to strike down Gov. Tony Evers' safer-at-home order on Wednesday, May 13, 2020 in Appleton, Wis. #coronavirus #WISupremeCourt #OPENWISCONSIN #COVID19 #SaferAtHome pic.twitter.com/SLi6qQYM27— William Glasheen (@WmGlasheen) May 14, 2020
A reminder from 1918
Abject stupidity instigated by Trump rhetoric, Fox News disinformation and far right FaceBook posts.— Diogenes (@WatchingYou2018) May 14, 2020
After Wisconsin court ruling, crowds liberated and thirsty descend on bars. ‘We’re the Wild West,’ Gov. Tony Evers says..https://t.co/z0JGOshfUK
Eric Holder: 'regular folks' will suffer
In invalidating stay at home order Wisconsin Supreme Court callously puts lives at risk. Republican legislature and justices now own impact of their actions. This is ideology/partisanship over law/good sense. A lot of “regular folks” will suffer. Shameful. https://t.co/V8GekFAJ7P— Eric Holder (@EricHolder) May 14, 2020