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Wisconsin Spotlight  | Nov. 9, 2020

MADISON — Gov. Tony Evers has lost another battle in the war of big government vs. individual liberty. 

A three-judge panel of Wisconsin’s 3rd District Court of Appeals on Friday ruled (2-1) that a lower court erred in denying a temporary injunction against the Evers administration’s health order capping public gatherings to 25 percent capacity. Further, the court agreed with the owners of The Mix Up, an Amery, Wis. bar, that the edict was “invalid and unenforceable” in the wake of an earlier state Supreme Court decision. 

“Accordingly, The Mix Up has demonstrated more than a reasonable probability of success on the merits,” the ruling states. “In addition, The Mix Up has shown that it is likely to suffer irreparable harm if a temporary injunction is not issued.” 

The decision points to tavern owner Liz Sieben’s affidavit claiming the business saw a 50 percent reduction in sales after the order, issued by Department of Health Services Secretary-designee Andrea Palm, went into effect. 

It’s the latest setback for Evers and his overreaching public health chief in their attempt to restrict movement and business amid rising COVID-19 numbers. 

Late last month, the Wisconsin Supreme Court agreed to hear a lawsuit challenging the emergency powers Evers used in issuing and extending his statewide mask mandate. The conservative majority agreed to take original jurisdiction, bypassing lower courts. 

That lawsuit’s arguments are similar to the tavern’s charges: That the Evers administration cannot issue extended health orders without the Legislature’s consent. The Supreme Court said as much in a May ruling in which it invalidated Palm’s lockdown extension. Palm went around the Republican-controlled Legislature in continuing the governor’s stay-at-home order in defiance of state law, the Supreme Court ruled. State statute requires the administration to go through the legislative rule-making process if it intends to extend a public health order beyond 60 days. 

The appeals court said that fact hasn’t changed, despite the Evers administration’s argument that the “crisis” has changed, necessitating new restrictions. 

“Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin,” the court’s majority opinion states in quoting the Supreme Court ruling.

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