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Wisconsin Supreme Court questions capacity limits order (UPDATE)

Associated Press

MADISON, Wis. (AP) — Wisconsin Supreme Court justices on Thursday questioned the legality of an order issued by the state’s top health official limiting how many people can gather in bars and restaurants following the court’s decision earlier this year that a similar order couldn’t remain in effect without legislative approval.

Gov. Tony Evers’ administration argued that it has authority to issue orders limiting indoor capacity in response to public-health emergencies such as the coronavirus pandemic. But an attorney representing the Mix-Up Bar in Amery and Pro-Life Wisconsin contends that the conservative-leaning court’s ruling from earlier this year set a precedent that prevents such decisions from taking effect unless they’ve also been approved by the Legislature, which is controlled by Republicans.

The supreme court justices on Thursday wrestled with how the order in question could be legal in light of their May ruling overturning Evers’ “safer at home” order, which closed many businesses as part of the state’s initial response to the pandemic.

“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,” said Justice Brian Hagedorn, a conservative who has sided with liberal justices in recent prominent cases, including their dissent to the May order striking down Evers’ safer-at-home order.

The court was controlled 5-2 by conservatives when it issued that decision. It is now 4-3 and Hagedorn’s vote could be decisive. But his question about adhering to the court’s precedent, even one he disagreed with, appeared to suggest he may be unwilling to side with Evers this time.

Most of the questioning Thursday was driven by the liberal justices, who asked whether the previous ruling would still allow the state health department to make limited orders affecting businesses without legislative approval. That ruling, they noted, found it permissible for the department to order schools to close.

Assistant Attorney General Colin Hector, representing the Evers administration, said the health department has authority under both its current powers and the court’s previous ruling to order capacity limits in response to health emergencies.

Attorney Misha Tseytlin, who represented the Mix-Up Bar in the case, as well as an anti-abortion rights group also challenging the order, said the state was trying to “make an end run around the Legislature” and the court’s precedent. He also argued that the questions now before the court were moot because Evers’ capacity-limits order expired more than a month ago.

Department of Health Services Secretary Andrea Palm has said she wants to issue a new order, one would remain in effect for 28 days. She doesn’t think, though, that she can take such a step until the court rules in the current case, attorneys for the state Department of Justice said in legal filings.

The Oct. 6 order limited the size of indoor public gatherings to either 25% of a building or room’s occupancy maximum or 10 people in places with no occupancy limit. Mass gatherings, particularly indoors, are among the primary ways that COVID-19 has been shown to spread.

According to a challenge from the Tavern League of Wisconsin, a Sawyer County judge blocked the capacity limits order on Oct. 14 only to see a Barron County judge reinstate it five days later. The 3rd District Court of Appeals blocked the restrictions on Oct. 23 and issued its final order on the same day the limits expired, Nov. 6.

The capacity-limits case is one of several pending legal challenges to Evers’ response to COVID-19. The state Supreme Court heard arguments last month in a lawsuit supported by Republican legislative leaders to strike down Evers’ mask mandate, which is to remain effect until Jan. 19.

COVID-19 cases in Wisconsin spiked in mid-November and have been trending downward since then. By Wednesday, nearly 445,000 people in Wisconsin had tested positive for COVID-19 and 4,196 people had died of the disease since the start of the pandemic, according to the state Department of Health Services.

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