On October 6, 2020, the State of Wisconsin issued Emergency Order #3 limiting public gatherings. Emergency Order #3 was designed to limit the size of crowds at indoor locations such as restaurants and bars. Emergency Order #3 limited such public gatherings to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality. If the indoor space does not have an occupancy limit, then the limit was no more than 10 people.

The Tavern League of Wisconsin challenged the State of Wisconsin’s order on the grounds that it failed to go through the required administrative rule-making process under state law.  This is the same basis that the Wisconsin Supreme Court used to strike down the “Safer at Home” Order.

In response to the Tavern League’s lawsuit, the Sawyer County Circuit Court issued an Ex Parte Temporary Restraining Order and Preliminary Injunction. This means that the Court issued it on a temporary basis until it can hear arguments from the State of Wisconsin in response to the Tavern League’s lawsuit. The Court’s order prohibits the state from enforcing Emergency Order #3 until further order from the Court. The Court will hold a hearing on October 19, 2020 to hear arguments from the State of Wisconsin to determine whether to extend the Preliminary Injunction throughout the pendency of the lawsuit.

Executive Order #3 was not adopted under the same statute as the Safer At Home Order.  Instead, the State relied on powers that permit the Department of Health Services (DHS) Secretary to “forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” This is a new legal strategy not tested when the Wisconsin Supreme Court struck down the Safer at Home Order on May 13th. In the previous ruling, four justices voted to strike down the Safer at Home Order, and three justices voted to uphold it. Since that decision, Justice Jill Karofsky replaced Justice Daniel Kelly, who was one of the four justices that voted in the majority.  It is not clear how this change may impact the Court’s review of this new Order.

The court’s granting of the Temporary Restraining Order and Preliminary Injunction is the first step in this lawsuit.

Axley will provide updates on this issue as they arise. If you have questions about how this Order could impact your business, please contact an attorney for further guidance.