By Ryan Urban

On, off, on, and now off again, a statewide order limiting indoor public gatherings to 25% capacity has been ruled “invalid and unenforceable” by a panel of state appeals court judges. The order expired Nov. 6.

The Tavern League of Wisconsin and a business in Sawyer County sued over the limit Oct. 13, and a trial judge temporarily blocked the rule the next day. Then Barron County Judge James Babler ended the restraining order and denied a request for a temporary injunction on Oct. 19.

The suit was originally filed by Tavern League of Wisconsin, the Sawyer County Tavern League and Flambeau Forest Inn LLC – of Winter. After Babler’s ruling, Pro-Life Wisconsin Inc. and The Mix Up bar and grill in Amery next took up the cause and appealed Babler’s ruling.

The Appeals Court decision was split, with judges Thomas Hruz and Mark Seidl writing the opinion, while Lisa Stark dissented.

The Court opinion pointed to the Wisconsin Supreme Court decision to strike down most of the Safer At Home order in May as reason to reject Gov. Tony Evers’ and state health secretary Andrea Palm’s indoor capacity limit as well.

The court opinion also stated, “In addition, The Mix Up has shown that it is likely to suffer irreparable harm if a temporary injunction is not issued. The Mix Up’s owner, Liz Sieben, submitted an affidavit in which she averred that: (1) The Mix Up has about forty to fifty customers inside on a normal, reasonably busy day; (2) after Palm released Emergency Order #3 on October 6, 2020, The Mix Up saw a 50% reduction in sales over the weekend of October 10-11, 2020, despite good weather and open outdoor seating.”

Stark said Babler appropriately denied the injunction, and she disagreed with the legal analysis of Hruz and Seidl. Stark said the subjective Safer at Home judgments should not apply to the 25% capacity order in the same way. Stark also said The Mix Up failed to adequately show damages as a result of the order.

Stark stated, “The supreme court specifically recognized DHS’s authority to issue orders under WIS. STAT. § 252.02 without going through rulemaking.”

Evers said of the Appeals Court decision, “Today’s decision comes as we reported more than 6,000 new COVID-19 cases the most ever in a single day. This is another blow to our state’s response to this pandemic and our efforts to keep Wisconsinites safe. We will continue challenging this decision, but the bottom line is that we can’t wait for the courts to figure this out. We need Wisconsinites to stay home and mask up, and it has to start today. It’s the only way we will get this virus under control and ensure our economy can recover.”

Evers had requested in October that the Wisconsin Supreme Court take up the case rather than the Court of Appeals, but his request was denied.