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Wisconsin Supreme Court questions capacity limits order

Richard Craniums open in Green Bay. May 14, 2020. (WLUK)
Richard Craniums open in Green Bay. May 14, 2020. (WLUK)
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MADISON (WLUK) -- The Wisconsin Supreme Court is debating whether an order from Gov. Tony Evers and Department of Health Services secretary designee Andrea Palm is legal. The October-issued emergency order limits the number of people gathering in bars and restaurants.

The Tavern League of Wisconsin argues that this would put bars and restaurants out of business. It says an order like this should have to be issued as a rule by the Legislature.

“They’ve attempted to make an end run around the Legislature and have put my clients, who are, again, just ordinary citizens, trying to have their small businesses, who are relying upon this court’s clear decision of Palm to structure their lives,” said attorney Misha Tseytlin.

Thursday morning, Justices struggled with whether the capacity order could even be legal, given the court’s May ruling that a similar order needed legislative approval.

That ruling struck down Evers’ Safer at Home order that included closing some businesses.

“Subsection three, though, is no ‘blank check.’ There’s no unfederated discretion here,” assistant attorney general Collin Hector said. “The law says precisely what the agency can do – forbid public gatherings and sets forth the criteria under which that authority can be exercised – to control outbreaks or epidemics.”

Evers' administration argued that it can issue orders limiting indoor capacity as a way to address public health emergencies like the coronavirus pandemic.

In May’s ruling, the court did overturn Evers’ order, but said it was okay for DHS to order schools to close.

This order allows DHS to have discretion over both schools and public gatherings.

“They well-knew that whatever Palm says about the closure of schools, it doesn’t allow something like this,” Tseytlin said. “The law has not changed since May. The law remains, in the text, the way it is.”

Tseytlin says the order being argued should also be struck down for the same reasons “Safer at Home” was.

“We have the same agency here, we have the same pandemic,” said Tseytlin. “They are repackaging these same exact arguments they made the last time.”

Palm’s limits order expired last month, but the ruling on the legality of it may affect future public health orders.

“It’s appropriate and reasonable for the court to reach the issue of whether Emergency Order #3 is a rule, because of the effect it will have immediately on DHS’ ability to respond to this particular pandemic, as well as future public health outbreaks or epidemics faced in the state,” said Hector.

In court filings, Palm said she wants to issue a new order, limiting indoor capacity that would stay in effect for 28 days. But, she says she doesn’t feel she could legally do that until the court rules in this case first.

Thursday’s case is one of several challenges to Evers’ efforts in addressing COVID-19.

The state Supreme Court also heard arguments last month in a lawsuit to strike down Evers' statewide mask mandate.

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The court didn't indicate when it might rule.

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