Appeals Court Kills Indoor Capacity Limits on the Day the Order Expires

The order was meant to slow the state’s unprecedented spread of coronavirus.

A three-judge panel of the Wisconsin Court of Appeals on Friday overturned the state order that restricted indoor gatherings to 25% of a building’s occupancy limit as a measure against Wisconsin’s unprecedented spread of COVID-19.

The 2-1 decision—issued on the same day the limit was set to expire and as new daily coronavirus cases in Wisconsin have neared 6,000 for three consecutive days—calls the limits “unquestionably invalid and unenforceable” but also orders Barron County Circuit Court Judge James Babler to hold further hearings and reverse his previous ruling upholding the order. The new development comes about two weeks after the same three-judge appeals court panel suspended the order while it considered the case.

Babler originally declined to issue an injunction against the order because he said The Mix Up, a bar in Polk County, and other groups could not prove the capacity limit had impacted their businesses because they were not following the order and their local health departments were not enforcing it.

However, appeals court judges Thomas Hruz, a Scott Walker appointee, and Mark Seidl wrote Friday that because The Mix Up had a drop in business after the order was instated, the bar would likely be able to prove it was indeed suffering due to the order.

“Accordingly, The Mix Up has demonstrated that it has a reasonable probability—indeed, an apparent certainty—of success on the merits,” Hruz and Seidl wrote.

They also said the limit was at odds with the state Supreme Court’s May decision to strike down Gov. Tony Evers’ stay-home order.

But Judge Lisa Stark, a Walker appointee, dissented, saying the appeals court panel should not have interfered because there “is an extremely deferential standard” that generally leaves issues of injunctions to circuit court judges like Babler. She also said Hruz and Seidl were “misunderstanding” the Supreme Court’s ruling against broad health orders.

“The majority’s discussion fails to give appropriate deference to the circuit court,” Stark wrote. “The majority does not find any erroneous exercise of discretion, but, rather, effectively determines de novo that The Mix Up is likely to suffer irreparable harm, that it has no other remedy at law, and that a temporary injunction is necessary to preserve the status quo. In doing so, it substitutes its judgment for that of the circuit court on a discretionary matter, which we may not do.”