Wisconsin Supreme Court rules against restaurant, bar capacity limits

Wisconsin Gov. Tony Evers (D) did not have the authority to impose capacity limits on restaurants, bars or other businesses without the approval of the state legislature, the state Supreme Court ruled Wednesday.

The 5-4 ruling from the conservative-majority court found that Evers exceeded his authority last fall, when he and former Health Secretary Andrea Palm limited the size of indoor, public gatherings to 25 percent of a building’s or room’s capacity, or 10 people in places that don’t have an occupancy limit. 

Evers issued the order as COVID-19 cases in Wisconsin were spiking, previewing the surge throughout the country. Many governors implemented similar restrictions in an attempt to control the spread of COVID-19, though many are being lifted or modified in light of increasing vaccinations.

The Court ruled that Evers should have gone through the legislative rulemaking process, siding in the decision with a bar from the city of Amery as well as the anti-abortion group Pro-Life Wisconsin. 

It is unlikely the Evers would have gotten approval from the Republican-controlled legislature, which has fought all his efforts to implement mitigation measures to control the virus.

The lawsuit was initially filed by the Tavern League of Wisconsin, but the group withdrew after losing in a lower-level court.

The court has ruled against Evers throughout the pandemic, and the ruling on capacity limits is the latest blow to his authority, but there has not been a statewide capacity limit restriction in place since the order was first blocked in October.

The decision comes just two weeks after the same court blocked Evers from issuing multiple emergency orders, including a mask mandate, without engaging with the legislature.

Last spring, the court also struck down the state’s stay-at-home order.

In the dissent, Justice Ann Walsh Bradley said the court was putting public health at risk, and that the state health department had the proper authority without needing to go through rulemaking.

“At a time when public health experts are imploring pandemic-weary Wisconsinites to stay vigilant, a faulty statutory analysis once again leads this court to undermine public health measures,” she wrote.