Wisconsin judge blocks governor’s order limiting capacity

A Wisconsin judge on Wednesday temporarily blocked an order from Gov. Tony Evers’ administration limiting the number of people who can gather in bars, restaurants and other indoor places, a move that comes as the state breaks records for new coronavirus cases, deaths and hospitalizations.

Sawyer County Circuit Judge John Yackel, who blocked the order a day after the Tavern League of Wisconsin sued, set a court date for Monday. The judge said that hearing will give attorneys for the defendant, Wisconsin Department of Health Secretary Andrea Palm, a chance to argue why the order should not be put on hold while the lawsuit plays out.

The Democratic governor’s order, issued by Evers-appointee Palm last week, limited the number of customers in many indoor establishment to 25% of capacity. Gatherings in indoor spaces without an occupancy limit were limited to 10 people. The order does not apply to colleges, schools, churches, polling locations, political rallies and outdoor venues.

The limits were to run through Nov. 6, with violators facing fines of up to $500.

Evers said he was making the move to curb the spread of the virus as it spikes in Wisconsin. The state was opening a field hospital near Milwaukee on Wednesday to handle an overflow of patients from hospitals that hit a record-high number of COVID-19 patients on Tuesday.

The Tavern League, the powerful lobbying group for the state’s 5,000 bars, restaurants and taverns, argued in its lawsuit that the order amounted to “defacto closure.” It said that Palm didn’t have the legal authority to issue the order, which instead should have gone through the Legislature’s rule-making process.

A Republican-controlled legislative committee on Monday met to begin the process of creating the rule, which would then allow the Legislature to strike it down.

Evers on Tuesday defended the order, saying it was unnecessary to issue a rule as the Tavern League and Republicans say is necessary.

A spokeswoman for Evers did not immediately return a message seeking comment Wednesday on the ruling.

But Democratic lawmakers said the attempt to undo the capacity limits order would hurt the state’s pandemic response.

“Make no mistake, if this dangerous decision stands, Wisconsin will be choosing full bars over full classrooms,” tweeted state Sen. LaTonya Johnson, of Milwaukee. “What a pathetic set of priorities to teach our children.”

Earlier this year, the conservative-controlled Wisconsin Supreme Court ended Evers’ “safer at home” order. Republican lawmakers are currently suing to end the governor’s statewide mask mandate, arguing as the Tavern League has done in this lawsuit that the order exceeded Evers’ authority. A judge on Monday upheld the mask mandate, saying the Legislature has the power to strike it down if it wants to.

Evers has argued that Republicans are making it more difficult for the state to deal with the pandemic.

The Tavern League, the Sawyer County Tavern League and the Flambeau Forest Inn in the village of Winter brought the lawsuit. It argues that the Flambeau Forest Inn would be forced to limit its capacity to 10 people under the state order, which would include five customers and five employees needed to operate the restaurant.

“Flambeau could not operate profitably under these conditions and would be forced to discontinue its business operations,” the lawsuit said.

The state Department of Health Services on Tuesday reported 3,279 confirmed new coronavirus cases, breaking a record of 3,132 set just five days earlier. There were 34 deaths reported, also a new high, bringing the total number of people who have died to 1,508. To date, more than 155,000 people in Wisconsin have tested positive.