Judge reinstates Wisconsin emergency order limiting public gatherings

Published: Oct. 19, 2020 at 8:47 AM CDT|Updated: Oct. 19, 2020 at 3:42 PM CDT
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BARRON COUNTY, Wis. (WBAY) - A Barron County judge has reinstated the Evers' administration’s order limiting public gatherings in Wisconsin as the state deals with an outbreak of COVID-19.

After a two-hour hearing, the judge denied to keep in place a temporary injunction that halted Emergency Order #3 during the court battle. The Tavern League of Wisconsin had requested the order remain in place as its lawsuit against the Wisconsin Department of Health Services goes through court.

“Plaintiffs and interveners have not shown that they are entitled to a temporary injunction and I deny their request,” said Hon. James Babler.

The order directs restaurants and bars and other small businesses to operate at 25 percent capacity through Nov. 6.

“I find that there’s no showing of irreparable harm. If I had a showing for the last 40 days that businesses were going out because they were complying with the order, that would be a showing of irreparable harm. I merely have the theoretical issue that if they were to comply, they would suffer harm," said Judge Babler.

Gov. Tony Evers praised the judge’s decision.

“This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings. This crisis is urgent. Wisconsinites, stay home. Limit travel and going to gatherings, and please wear a face covering whenever you have to go out," said Evers.

In an interview with Action 2 News Monday morning, Attorney General Josh Kaul reacted, “Wisconsin is facing one of the largest COVID outbreaks in the country right now, and it’s critical we adopt common sense policy that are going to protect our health and safety and that can work to reduce the number of COVID cases so we can fully reopen our economy sooner.”

Tavern League President Chris Marsicano released this statement:

"A Barron County judge has just ruled against the Tavern League of Wisconsin’s request for a Temporary Restraining Order preventing the enforcement of the Evers Administration’s order limiting public gatherings.

The Evers' Administration order is now in effect until November 6th. The order limits public gatherings at bars and restaurants to 25% of the occupancy limit as established by their local government, and if no limit is established, public gatherings are restricted to no more than 10 people. The order does not apply to private events, political rallies among other exceptions. Violations of the order are a $500 civil forfeiture.

We are obviously disappointed in the ruling and the catastrophic effects it will continue to have on small businesses across Wisconsin. We will continue to operate observing the best practices of the WEDC to provide a safe environment for our employees and customers."

Chris Marsicano, Tavern League President

Tavern League attorney Josh Johanningmeier opened Monday’s hearing and argued that Wisconsin Department of Health Services secretary-designee Andrea Palm did not follow the rule of law when she issued Emergency Order #3. Palm is an unelected official. Johanningmeier says such orders must be approved by the state legislature.

“The defendants are arguing to ignore the law with a plea that it’s just not good enough for them,” said Johanningmeier.

Wisconsin Assistant Attorney General Colin Hector, representing Palm, says the emergency action was taken “in response to a catastrophic situation.”

Hector cited Wisconsin statute that gives the governor power to declare a state of emergency if the governor determines that a public health emergency exists.

Hector says the administration took executive action and was applying the law--not lawmaking.

Attorney Misha Tseytlin, who represents interveners in the case, said the DHS went around the legislature and called the order an “administrative fiat."

Tseytlin said the administration has “flouted” a May order by the Wisconsin Supreme Court that struck down the Safer at Home order.

The Tavern League filed suit in Sawyer County saying the order is “invalid and unenforceable.”

“The lawsuit asserts that Emergency Order #3 is invalid and unenforceable because it was not promulgated as an administrative rule as required by the Wisconsin Supreme Court ruling just five months ago in Wisconsin Legislature v Palm,” says Mariscano.

Marsicano says the order “targets the hard-working men and women in the hospitality industry.”

“Restaurants, taverns, bars, and supper clubs did not cause this pandemic, but they are systematically facing bankruptcy, closure, and economic ruin. Those of us left cannot survive a reduction of 75% of our customers proposed by Secretary-designee Palm. We do not have the financial wherewithal to survive the blunt force of another business shutdown which have not proven effective and will result in catastrophic losses in the hospitality industry in Wisconsin,” says Marsicano.

COVID-19 numbers, deaths and hospitalizations continue to climb in Wisconsin.

Last week, United States Surgeon General Jerome Adams visited Neenah to announce a surge testing site. He painted a grim picture of the state of COVID-19 in Wisconsin.

“I want you all to be aware that Wisconsin is currently one of our red states, meaning your positivity rates are over ten percent and going in the wrong direction," Adams said.

In May, the Wisconsin Supreme Court ruled against the state’s original Safer at Home Order, saying Wisconsin Department of Health Service secretary-designee Andrea Palm did not have power to issue such an order. On a 4-3 vote, the conservative majority at the time ruled that the order was “unlawful” and “invalid.” That left local governments to decide on public health orders.

The makeup of the Wisconsin Supreme Court has since changed. Justice Jill J. Karofsky, considered a more liberal-leaning jurist, won an election to replace conservative Daniel Kelly. In May, conservative Justice Brian Hagedorn joined the liberal wing in the dissent.

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