Wisconsin Supreme Court questions capacity limits order

MADISON, Wis. (AP/CBS 58) — The state Supreme Court listened to oral arguments and considered whether the Department of Health Services acted within its powers when it issued an order to limit public gatherings to help slow the spread of coronavirus.

The lawsuit was brought on by the Tavern League of Wisconsin and others. An attorney representing Mix-Up Bar in Amery and Pro-Life Wisconsin argued DHS overstepped its authority in October when it issued the order to limit indoor capacities.

“This is really about evading the participation of the Legislature in the making of important policies for the state including closing family-owned businesses like my clients,” Attorney Misha Tseytlin told the court.

The state Department of Justice represented the Evers administration in this case and countered the plaintiffs by saying DHS was within its powers.

“All this order does is forbid public gatherings and that is something that is explicitly allowed in the plain meaning of the statute,” Assistant Attorney General Hector Colin said. “And I think that distinction is critical here.”

The state Supreme Court struck down Governor Tony Evers’s Safer at Home order in May, which had aspects to it that dealt with public gatherings.

Conservative Justice Brian Hagedorn, considered to be a swing vote, sided with the liberal justices in the Safer at Home case. But Hagedorn cast doubt over whether the court should rule the capacity limit order legal if it had already considered similar action in May.

“To turn on that now would be to undercut many of the principles that we’ve laid out in the way that we conduct ourselves as an institution,” Hagedorn said.

In legal filings with the court, the DOJ said DHS Secretary-designee Andrea Palm wants to issue another order limiting public gatherings, but does not want to move forward until the court decides this case.

Palm told reporters this week how vital the powers to do things like limit capacity at public places is for handling public health emergencies like the COVID-19 pandemic.

“Whether in the context of COVID-19 or a measles outbreak or other things that we may face in the future these tools are really critical to our work,” Palm said.

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