Wisconsin Supreme Court sides with Tavern League in capacity limit lawsuit

Published: Apr. 14, 2021 at 7:57 AM CDT
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MADISON, Wis. (WBAY) - A ruling by the Wisconsin Supreme Court states Gov. Tony Evers’s administration does not have the authority to limit capacity on bars and restaurants and other businesses without the approval of the State Legislature.

The 4-3 decision was issued Wednesday in Tavern League of Wisconsin v. Andrea Palm and Wisconsin Department of Health Services. It upholds a ruling from the Court of Appeals in favor of the Tavern League.

The lawsuit was filed in response to an emergency order issued in October that limited the number of people at indoor public gatherings to 25 percent capacity. The order limited businesses without capacity limits to 10 people. The order was issued by former DHS Secretary-designee Andrea Palm.

The Tavern League said DHS did not follow proper rulemaking procedures and obtained an injunction against the emergency order.

The court’s conservative majority ruled in favor of the Tavern League. Chief Justice Pat Roggensack writes that “Emergency Order 3” meets the definition of an administrative rule.

“Therefore, Emergency Order 3 should have been promulgated according to rulemaking procedures set forth in Wis. Stat. ch. 227. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable. Accordingly, we affirm the decision of the court of appeals.”

Roggensack also cites the Emergency Order’s language that includes the imposition of civil penalty on those who violate the order. She writes, “... agency action that can be enforced by civil forfeiture has the effect of law.”

In her dissent, Justice Ann Walsh Bradley writes “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.”

Bradley concludes, “It is authorized by the plain language of § 252.02(3) and DHS need not go through the cumbersome rulemaking process to do what the statute plainly allows.”

CLICK HERE to read the full decision.

In March, the State Supreme Court struck down the governor’s statewide mask mandate. The conservative majority ruled that two of the governor’s executive orders on masks were “unlawful” under Wisconsin state statute.

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