The Sawyer County Circuit Court has reinstated Emergency Order #3, after briefly blocking it last week. This means that Emergency Order #3 is back in effect, and all public gatherings must comply with its limits.
Emergency Order #3 limits the size of crowds at indoor locations such as restaurants and bars. Emergency Order #3 limits 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 is no more than 10 people. Emergency Order #3 expires on November 6, 2020.
The Tavern League of Wisconsin and other parties 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. 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. This morning the Court heard arguments from the State of Wisconsin, the Tavern League, and other parties that intervened in the lawsuit.
Under Wisconsin law, a preliminary injunction is not to be issued unless the movant (the Tavern League) has shown a reasonable probability of ultimate success on the merits, is necessary to preserve the status quo, and there is a showing of a lack of adequate remedy at law and irreparable harm. The Court lifted the restraining order because the movant (Tavern League) had not met its burden for granting a temporary injunction by failing to show that it was necessary to preserve the status quo or that there was irreparable harm. The Court found that the evidence presented was theoretical – it only argued if a business complied with the order it would suffer irreparable harm. The Court found there was no evidence that businesses would actually suffer irreparable harm.
The Tavern League has sent out a release stating that it will not appeal the Circuit Court’s decision denying its request for a preliminary injunction to the Court of Appeals. We do not know if any of the other parties to the lawsuit will appeal the ruling. Winning on such an appeal may be difficult. The denial of a temporary injunction is generally considered within the “discretion” of the trial court. The Court of Appeals and ultimately the Supreme Court show deference to such decisions. The Court of Appeals and the Supreme Court will only review the order to see if the trial court abused its discretion. The Court of Appeals and the Supreme Court will not substitute their own judgment for the judgment of the trail court when reviewing the evidence as to the trial court’s determinations.
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.