Appeals Court Blocks Gov. Evers’ Capacity Limits Indefinitely

The coronavirus safeguard is back off less than a week after a judge upheld it.

The Wisconsin Court of Appeals 3rd District on Friday put on hold Gov. Tony Evers’ statewide order that limited indoor gatherings to 25% of a building’s capacity limit, just four days after a judge in Barron County upheld the order.

The appeals court’s decision, first reported by Wisconsin Health News Friday evening, sides with Pro-Life Wisconsin and The Mix Up, an Amery bar. The tavern and anti-abortion group appealed Barron County Circuit Court Judge James Babler’s decision earlier this week.

The order is not permanently dead, but a 2-1 appeals court majority decided to suspend it until further notice. The court gave The Mix Up and Pro-Life Wisconsin a deadline of 4 p.m. Tuesday to file a brief, and Evers’ team will have until 4 p.m. Thursday to file one of its own. The Mix Up and Pro-Life Wisconsin will then be able to respond to Evers’ brief by 4 p.m. Oct. 30.

The judges did not indicate when they may make a final ruling on the order.

The Tavern League of Wisconsin, Sawyer County Tavern League, and another local bar were involved in the original lawsuit but did not appeal Babler’s ruling. Pro-Life Wisconsin and The Mix Up joined the suit when the case went before Babler; Pro-life Wisconsin argued the order prevented it from fundraising.

Evers’ order limiting capacities came amid a massive coronavirus spike in Wisconsin. As of Friday, the virus has killed 1,745 Wisconsinites and infected 190,478, according to the Department of Health Services.

Babler initially upheld the order in part because the two local bars could not prove the capacity limit was affecting business in any way. The bars admitted they were not following the order, and the Sawyer County Health Department is not enforcing it, so Babler called the bars’ concerns “theoretical.”

The two judges who voted to block the order cited the likelihood that the bar and the political group have “shown a sufficient likelihood of success on the merits of an appeal to warrant granting a stay pending appeal.”

Judges Thomas Hruz, a Scott Walker appointee, and Mark Seidl voted to block the order. Judge Lisa Stark, a Walker appointee, dissented.