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Wisconsin Spotlight | Oct. 26, 2020

MADISON — Friday saw two key challenges to the Evers administration’s broad health orders, with an appeals court temporarily stopping the government’s “25 percent” edict. 

A 3rd district Court of Appeals panel issued a temporary injunction barring enforcement against state Department of Health Services Secretary-designee Andrea Palm’s latest health order, which limits capacity at public gatherings to 25 percent. 

It’s been a roller-coaster ride over the last week. After a Sawyer County Circuit Court judge initially issued a temporary restraining order against the edict, a Barron County judge ruled Palm had the authority under law and rejected the Tavern League of Wisconsin’s argument that the order needed to go through the legislative rule-making process. 

Attorneys for The Mix Up, a bar in Amery, and Pro-Life Wisconsin then appealed to the 3rd District. 

“… (W)e conclude The Mix Up has shown a sufficient likelihood of success on the merits of an appeal to warrant granting a stay pending appeal,” the court wrote in its 2-1 ruling. 

Gov. Tony Evers has said the health order, which was to remain in effect until Nov. 6, is critical to checking the spread of COVID-19 in Wisconsin. Bars, restaurants and others impacted say the strict limits are forcing their businesses to the brink of extinction. 

Meanwhile, the Wisconsin Institute for Law & Liberty (WILL) is asking a St. Croix  County Judge who rejected a request for an injunction against Gov. Tony Evers’ sweeping health orders to quickly rule on the merits of WILL’s claims.   

Judge R. Michael Waterman earlier this month denied the motion seeking a restraining order against the Democrat’s Order #90, which includes the extension of his statewide mask mandate. 

But Waterman didn’t address the key arguments in the lawsuit, filed by WILL on behalf of three Wisconsin residents in Polk County.  

The Milwaukee-based public interest law firm argues that state law is clear, that it restricts the governor from issuing emergency orders for no longer than 60 days. In May, the Wisconsin Supreme Court struck down the Evers administration’s extended statewide lockdown order, finding the governor’s health chief broke state law by not seeking the approval of the Legislature in extending the emergency order. 

Evers and his unelected health chief continue to issue public health orders limiting individual liberty in the name of public health.  

Waterman sided with Assistant Attorney General Colin Hector, serving as legal counsel for the Evers administration. Hector argued the administration has issued new orders as needed to deal with a changing health emergency. 

“Nothing in the statute prohibits the governor from declaring successive states of emergency,” Waterman wrote in his ruling.

In its ruling, the Supreme Court majority opinion declared, “in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.” 

WILL wants the judge to rule on the merits so that, if need be, it can appeal the decision. 

Unless Waterman issues an expedited timetable, a summary judgment hearing on the merits of the lawsuit may not occur until December or later, the law firm stated in a press release. 

“The questions before the court are very serious. Governor Evers’s use of multiple emergency declarations to address COVID-19 pose critical challenges to the rule of law and the separation of powers in Wisconsin,” Rick Esenberg, WILL’s president and general counsel said in the release. 

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