On September 22, Governor Evers signed an order, Executive Order #90, declaring a public health emergency across the state, along with a mandatory mask order. Our analysis regarding the statewide mask order is in this KEW Tips article, Governor Evers Extends Statewide Mask Order. On October 6, Andrea Palm of the Wisconsin Department of Health Services, issue Emergency Order #3, limiting indoor public gatherings to 25% of maximum capacity, saving for specific exempt activities. You can see KEW’s write up of Emergency Order #3 in KEW Tips: Wisconsin Department of Health Services Places Statewide Limits Upon Public Gatherings. The issuance of this order has led to litigation in multiple counties seeking to have the orders overturned.
On October 12, a judge in Polk County denied a motion seeking a temporary injunction overturning Executive Order #90. The lawsuit claimed that Governor Evers could not declare a second state of emergency under Wis. Stat. § 323.10, after the expiration of the emergency state declared this spring, without legislative approval. The court disagreed, saying that nothing in the plain language of the statute prohibits a governor from declaring successive, 60-day states of emergency. The court noted that the statutory language clearly enables the state legislature to end a declared state of emergency at any time, but the legislature had declined to do so as of yet.
On October 19, a judge in Barron County heard argument on keeping in place a temporary injunction that would prevent enforcement of Emergency Order #3. The Tavern League of Wisconsin filed the lawsuit on behalf of its members, arguing that enforcement of the order would harm businesses. The court denied the request for an injunction, stating that the Tavern League could not show a significant likelihood of success, a prerequisite for granting an injunction. The Tavern League’s attorney argued that Secretary Palm’s actions were clearly barred by the Wisconsin Supreme Court’s ruling in Legislature v. Palm, 2020 WI 42, in which the Supreme Court overturned the statewide Safer-at-Home order this past Spring (more about that order at KEW Tips: Wisconsin Supreme Court Finds State’s Safter at Home Order Invalid).
The Barron County court stated it needed more clarity from the Supreme Court with regards to the reach of Wis. Stat. § 252.02(3). A footnote in Palm (footnote 21) allowed the provision in the Safer-at-Home order closing schools pursuant to Wis. Stat. § 252.02(3) to stand despite overturning the rest of the order. To Barron County court, that footnote in Palm implied that Secretary Palm may be able to “close schools and forbid public gatherings” without following administrative rulemaking procedures as allowed by § 252.02(3). The Barron County court referred to Justice Rebecca Dallet’s dissent in Palm, which notes that § 252.02(3) may have allowed similar provisions of the Safer-at-Home order to stand, and that the majority opinion in Palm did not really address the § 252.02(3) argument or make any firm conclusions on it.
The Barron County court could not find that plaintiffs stood a reasonable chance of success on the merits, a key finding necessary to order an injunction. The court further found that plaintiffs had not shown they would suffer irreparable harm or that issuing an injunction was necessary to maintain the status quo, other elements required to grant injunctive relief, as the facts in the affidavits the court was basing its decision on did not support such findings.
Currently: Executive Order #90 stands
As of the writing of this blog, there are no injunctions or other orders blocking the application of Executive Order #90 declaring a state of emergency, Governor Evers’ mandatory mask order, or Emergency Order # 3, placing limits on public gatherings.
Plaintiffs in both cases have indicated they may appeal, so it is likely that both of these issues will be addressed by higher courts in the near future.
As always, with questions regarding how to operate your business during the pandemic, amidst the various of legislation and challenges, contact Kramer, Elkins & Watt, LLC.
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