State Supreme Court Won’t Hear COVID-19 Capacity Case

The state Supreme Court on Wednesday rebuffed a petition from Gov. Tony Evers to take charge of the lawsuit over the state’s COVID-19 capacity-limit order, likely sending the matter back to circuit court.

The order — which has been suspended since Oct. 23 by a state appellate court — expires this Friday, Nov. 6, having been in effect for less than half of the 28-day period that it was to have been in place to curb the spread of the coronavirus.

After the appellate court suspended the order, the Evers administration asked the state’s high court to take the case directly — something it has done several times with lawsuits directed against the governor.

The administration reasoned that the case would wind up in the Supreme Court eventually regardless of any lower court rulings, according to Ryan Nilsestuen, the governor’s chief legal counsel.

The capacity-limit order, which took effect Oct. 8, restricted indoor public gatherings, including in bars and restaurants, to 25% of the rated capacity of the building or room. The Evers administration issued the order Oct. 6  as the number of people in Wisconsin who tested positive for the virus reached 136,370, with and average of about 2,300 new cases a day and a death toll of 1,399.

Less than a week after it took effect, the Tavern League sued to block the order and won a temporary injunction that was in place for five days before the circuit judge hearing the lawsuit lifted it on Oct. 19, allowing the capacity-limit restriction to take effect once again.

Although the Tavern League dropped out of the case at that point, two new plaintiffs — Wisconsin Right to Life and a Polk County bar called The Mix-Up — filed an appeal, and five days later, on Oct. 23, the Third District Court of Appeals reinstated the injunction. That blocked the capacity-limit restriction, and it has remained suspended since then.

As of Wednesday, the average number of new COVID-19 cases a day exceeds 4,800, and the total number of people with positive tests for the virus stands at 244,002, including 2,156 deaths.

“We think it’s important in the middle of a pandemic to have this be completely resolved, because the longer that we’re fighting about it in court, the less time we have to implement measures that we know will save lives,” Nilsestuen told reporters Wednesday after the court rejected the request.

The Supreme Court’s unsigned order offered no rationale for the decision to reject administration’s petition to skip the lower courts.

In a dissent, however, Justice Rebecca Dallet said the administration’s petition “fulfills all the necessary criteria for granting a bypass. It is not a close call.” Her dissent was joined by Justices Ann Walsh Bradley and Jill Karofsky, the court’s two other liberal justices.

Dallet noted that the case requires an interpretation of the court’s own 4-3 ruling in May throwing out the state’s Safer at Home health emergency order.

“We have a responsibility to provide certainty in the law, particularly in the middle of a destabilizing pandemic,” Dallet wrote. “State officials need legal clarity to chart a course forward. There is no reason why this court should wait for the Court of Appeals to interpret our decision … Who better to offer that needed clarity than this court? Given the exigency of the current public health crisis, any further delay is ill-advised.”

Editor’s note: On October 8th, the City of Milwaukee announced it would be following it’s own health order as it viewed it as more restrictive than the state’s.

Reprinted with permission of Wisconsin Examiner.