The Wisconsin Court of Appeals on Friday blocked Governor Tony Evers’ third emergency order to limit public gatherings and business occupancy during the COVID-19 pandemic.
The court blocked the order after a lower court declined to grant an injunction. The court reasoned that the emergency order was unenforceable in light of a recent Wisconsin Supreme Court decision that held that such orders must follow the state’s rulemaking process:
Here, we conclude the circuit court erroneously exercised its discretion by denying The Mix Up’s motion for a temporary injunction. First and foremost, we agree with [the plaintiff, The Mix Up] that under our supreme court’s holding in Palm, Emergency Order #3 is invalid and unenforceable, as a matter of law. Accordingly, The Mix Up has demonstrated that it has a reasonable probability—indeed, an apparent certainty—of success on the merits. To explain, in Palm, our supreme court considered whether a previous emergency order addressing the COVID-19 pandemic—Emergency Order #28—qualified as a “rule” under WIS. STAT. § 227.01(13), such that Palm was required to comply with the rulemaking procedures in WIS. STAT. ch. 227 when issuing that order. Palm, 391 Wis. 2d 497, ¶¶3-4. Among other things, Emergency Order #28 closed “non-essential businesses,” while allowing “essential businesses” to remain open. See Emergency Order #28 at 3-5 (capitalization altered). For those essential businesses and other exempt organizations that were allowed to remain open, Emergency Order #28 imposed certain statewide capacity limitations—such as 25% of the maximum occupancy for some businesses, and four people per 1,000 square feet of customer floor space for others. Emergency Order #28 at 5. Palm asserted she had statutory authority to issue Emergency Order #28 under WIS. STAT. § 252.02(3), (4) and (6).
The decision follows after Evers issued an executive order limiting gatherings to 25 people effective October 8. The order was to expire at the end of Friday regardless of the outcome of the ruling.
Evers released a statement declaring that he plans to challenge the decision:
Today’s decision comes as we reported more than 6,000 new COVID-19 cases—the most ever in a single day. This is another blow to our state’s response to this pandemic and our efforts to keep Wisconsinites safe. We will continue challenging this decision, but the bottom line is that we can’t wait for the courts to figure this out—we need Wisconsinites to stay home and mask up, and it has to start today. It’s the only way we will get this virus under control and ensure our economy can recover.
