Bartender James Martine talks with longtime patrons Mamie and Steve Detert of Waterloo at  Pedro's Mexican Restaurant in Madison at the end of September. Dane County announced Tuesday it is restricting all indoor gatherings. This new ordinance will not apply to restaurants, which will still be allowed to operate at 25% capacity. (Photo © Andy Manis)
Bartender James Martine talks with longtime patrons Mamie and Steve Detert of Waterloo at Pedro's Mexican Restaurant in Madison at the end of September. Dane County announced Tuesday it is restricting all indoor gatherings. This new ordinance will not apply to restaurants, which will still be allowed to operate at 25% capacity. (Photo © Andy Manis)

Plaintiffs weren’t following the order, so a judge finds they have no claim to harm. Appeal to state Supreme Court expected.

Barron County Circuit Court Judge James Babler on Monday declined to strike down the statewide order issued Oct. 7 that limits public gatherings and restricts capacities to 25% of an establishment’s maximum occupancy to slow the spread of the coronavirus.

The ruling—a rare judicial victory for Gov. Tony Evers as he tries to control the coronavirus pandemic in the complete absence of the Republican-led state Legislature, which has not passed a bill in over six months—comes five days after a judge in Sawyer County temporarily blocked the capacity limit until the court could hold a hearing; the case was then handed over to Babler in Barron County for unclear reasons. 

Babler, an appointee of former Gov. Jim Doyle, was unconvinced by arguments from attorneys representing the plaintiffs, which included the Tavern League of Wisconsin, Sawyer County Tavern League, two local bars, and two local anti-abortion groups. The attorneys unsuccessfully argued the order needed to be struck down because it could cause businesses to permanently close and is at odds with the Wisconsin Supreme Court’s May decision to end Evers’ stay-home order

Much of Babler’s decision came down to the fact that the plaintiffs admitted they were not following the order and had not been threatened with any legal action or fines for not doing so because the Sawyer County Health Department is not enforcing the order. By those admissions, Babler said, the plaintiffs couldn’t prove the order had caused them any real harm.

“I don’t see anything to say that they’ve changed what they have done since this order has been issued,” Babler said. “They’re not even claiming anyone’s trying to enforce it. This is all theoretical.”

Assistant Attorney General Colin Hector, who presented arguments for DHS, acknowledged there could be economic harm if businesses can only operate at a quarter capacity, but he said the limit was necessary to protect Wisconsinites’ health and economic well-being.

“I don’t mean to minimize the economic harm this pandemic has caused small businesses that have been shell-shocked during this pandemic,” Hector said. “But the only way to bring Wisconsin’s economy back is to get this virus under control.”

Josh Johanningmeier, the lead attorney for the plaintiffs, then changed his strategy and argued it was irrelevant whether businesses were actually affected by the order.

“If no bar or restaurant or supper club in Wisconsin complied with this order, it would still be an unlawful order,” Johanningmeier said.

Babler appeared to agree with Hector, telling Johanningmeier any reduction in business they see may not be from the capacity limit, but from people staying home due to the unprecedented spread of the virus. Wisconsin has become one of the nation’s most severe hot spots since September, with confirmed coronavirus cases more than doubling from 76,584 on Sept. 1 to 166,186 on Friday and deaths growing from 1,130 to 1,574 in that timeframe, according to DHS data.

Another central issue in the lawsuit was the state law that dictates what unilateral power the Department of Health Services has to control outbreaks. The law says DHS “may close schools and forbid public gatherings in schools, churches, and other places.” 

Johanningmeier said the state Supreme Court’s decision in May, which crippled DHS’ ability to respond to pandemics, applied to the law in question. However, Babler expressed frustration that the conservative-controlled Supreme Court did not, in fact, directly address that section of the law, leaving lower courts without clear guidance.

“I’m a believer in following Supreme Court decisions,” Babler said. “I’m not here to make new law. That is not a trial judge’s job.”

Evers lauded Babler’s decision in a statement released shortly after the ruling.

“This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings,” Evers said. “This crisis is urgent. Wisconsinites, stay home. Limit travel and going to gatherings, and please wear a face covering whenever you have to go out.”

The decision will almost certainly be appealed. Attorney Misha Tseytlin, a second lawyer for the plaintiffs and the state’s solicitor general under former Attorney General Brad Schimel, asked Babler for a temporary stay on the decision to uphold the order to allow time for the plaintiffs to appeal. Babler denied the request.