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Law360 (April 14, 2021, 9:54 PM EDT ) The Supreme Court of Wisconsin in a split ruling Wednesday said Democratic Gov. Tony Evers did not have the authority to set capacity limits on bars and restaurants to combat the COVID-19 pandemic, saying his emergency order in October is unenforceable because the Legislature didn't approve it.
Evers, along with former Department of Health Services Secretary-designee Andrea Palm, erred when issuing Emergency Order 3, which limited the size of indoor public gatherings to 25% of a facility's permitted capacity or to 10 people in venues without an occupancy limit, according to the 4-3 ruling from the conservative-controlled court.
Chief Justice Patience D. Roggensack wrote the opinion saying that Evers' order — issued when coronavirus cases were spiking around the state — wasn't validly enacted because it meets the definition of a rule and is thus subject to the state Legislature's rulemaking process.
"Emergency Order 3 should have been promulgated according to rulemaking procedures set forth in Wisconsin Statutes Chapter 227," according to the opinion. "Because it was not, Emergency Order 3 was not validly enacted and was unenforceable. Accordingly, we affirm the decision of the court of appeals."
The Democratic governor has attempted to manage the coronavirus crisis with a series of executive orders to get around the Republican-led Legislature, but the Wisconsin Supreme Court has handed down several decisions over the past year saying that Evers must go through the legislative rulemaking process.
The high court on March 31 struck down Evers' statewide mask mandate, and in spring 2020 the court ruled that the governor needed legislative approval before he could issue an emergency stay-at-home order shutting down businesses to slow the spread of the virus. The court pointed to one of those decisions as rationale to deem Executive Order 3 unenforceable.
The court's majority opinion on Wednesday favored arguments brought by anti-abortion group Pro-Life Wisconsin Inc. and Miki Jo's Mix Up, a bar and restaurant in Amery, Wisconsin, which intervened in the suit as appellants.
The case was initiated in Sawyer County circuit court by the Tavern League of Wisconsin Inc., the Sawyer County Tavern League Inc. and Flambeau Forest Inn LLC a week after the Department of Health Services issued the emergency order on Oct. 6, according to the ruling. The Tavern Leagues withdrew after losing a bid for injunctive relief.
In a dissent, Justice Ann Walsh Bradley said Wisconsin law gives the Department of Health Services the right to close schools and to forbid public gatherings in churches and other places to control outbreaks and epidemics. The high court wrongly hews to the legal principle of stare decisis, or respect for precedent, to justify its unsound decisions, Justice Bradley said.
"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," Justice Bradley wrote. "The court attempts to justify its result by relying on stare decisis and statutory interpretation, but both rationales fall flat."
A lawyer for Miki Jo's Mix Up, Misha Tseytlin of Troutman Pepper, told Law360 on Wednesday that Evers failed to adhere to a legitimate rule-making process.
"In a shocking affront to the rule of law, the governor failed to go through the rule-making process," Tseytlin said. "The governor has to follow the rule of law. He can't just have his appointee declare statewide capacity limits."
Andrew Bath, general counsel for conservative group Thomas More Society, which also intervened in the case, claimed as a victory the majority decision that upheld a previous ruling from the state court of appeals that favored Pro-Life Wisconsin and the other organizations and businesses in the suit.
"The Wisconsin Supreme Court has affirmed what we have said all along, that, under our constitutional system of separation of powers, no branch of government is a rule unto itself," Bath said in a statement Wednesday. "The rights of Pro-Life Wisconsin and the other plaintiffs were violated when the Evers administration engaged in dictatorial rule rather than follow the law."
Chief Justice Patience D. Roggensack announced the mandate of the court and delivered the opinion in which Justices Annette Kingsland Ziegler and Rebecca Grassl Bradley joined. Justice Brian Hagedorn filed a concurring opinion. Justice Ann Walsh Bradley filed the dissenting opinion in which Justices Rebecca Frank Dallet and Jill J. Karofsky joined.
Representatives for the state did not immediately respond Wednesday to a request for comment.
The Tavern League of Wisconsin intervenors-plaintiffs-appellants are represented by Misha Tseytlin and Kevin M. LeRoy of Troutman Pepper, Erick Kaardal of Mohrman Kaardal & Erickson PA and Andrew Bath of the Thomas More Society.
The Wisconsin government is represented by state Attorney General Joshua L. Kaul and assistant attorneys general Colin A. Hector, Hannah S. Jurss and Thomas C. Bellavia.
The case is Tavern League of Wisconsin Inc. et al. v. Wisconsin Department of Health Services et al., case number 2020AP1742, in the Supreme Court of Wisconsin.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
