Judge puts Wisconsin capacity limit order back into effect
A Wisconsin judge on Monday reimposed an order from Gov. Tony Evers’ administration limiting the number of people who can gather in bars, restaurants and other indoor venues to 25 percent of capacity.
The capacity limits order was issued Oct. 6 by Andrea Palm, secretary of the state Department of Health Services, in the face of surging coronavirus cases in Wisconsin. A judge blocked the order on Oct. 14 after it was challenged by the Tavern League of Wisconsin, which argued it amounted to a “de facto closure" order for the bars and restaurants it represents.
But Barron County Judge James Babler on Monday put the capacity limits back into effect. The judge declined a request from the Tavern League to keep the capacity limit order on hold while the lawsuit is pending. The judge also declined to stay his ruling while the Tavern League and others fighting it appeal his decision.
In denying the request to put the capacity limits order on hold, the judge said the Tavern League and others fighting the order did not have a reasonable probability of succeeding. He said no one had shown they would be harmed by following the order.
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“I merely have the theoretical issue that if they were to comply, they would suffer harm,” Babler said.
The Tavern League argued that Evers needed to work through the Legislature to approve an emergency rule setting capacity limits, rather than issuing the order. It pointed to a Wisconsin Supreme Court ruling from May undoing Evers' “safer at home" order.
The capacity limits order is set to expire on Nov. 6, but could be renewed.
Tavern League attorney Josh Johanningmeier argued Monday that the intention of Evers’ administration may have been good, but that doesn’t make the capacity order legal.
“The pandemic did not suspend the rule of law and our client’s rights,” Johanningmeier said.
Colin Hector, an assistant attorney general defending the order, said Wisconsin was in a “terrible place when it comes to COVID-19 right now.” He argued that the order was legal and necessary for the long-term good of the state.
“The only way to bring Wisconsin’s economy back is to bring this virus under control,” Hector said.
Wisconsin last week set new daily records for positive coronavirus cases, deaths and hospitalizations. To date, the state has more than 166,000 positive cases and 1,574 deaths.
Under the order, the number of customers at any indoor venue is limited to 25 percent of capacity or no more than 10 people for places without an occupancy limit. The order does not apply to colleges, schools, churches, polling locations, political rallies and outdoor venues.
The Tavern League of Wisconsin, the powerful lobbying group for the state’s 5,000 bars, restaurants and taverns, argued that Palm doesn't have the legal authority to issue the order, which instead should have gone through the Republican-led Legislature’s rule-making process.
A GOP-controlled legislative committee met last week to begin the process of creating the rule, which would then allow the Legislature to strike it down.
According to the Centers for Disease Control and Prevention, eating at a restaurant where seating capacity is not reduced and tables are not spaced at least 6 feet apart places diners in the “highest risk” category for contracting COVID-19. By comparison, the lowest risk is purchasing food for takeout or curbside pickup, according to the CDC.