Tavern League sues to end statewide limits on mass gatherings

MADISON, Wis. (WMTV) - The Evers Administration is facing another lawsuit challenging the emergency orders health officials have issued in response to the coronavirus pandemic.

On Tuesday, the Tavern League of Wisconsin took aim at last week’s order limiting the number of people allowed to gather in public locations. It filed a lawsuit in Sawyer Co., asking the court to issue an injunction blocking the order.

The trade association stated the industry cannot afford greater restrictions on its businesses, which it argues have not proven effective.

“Restaurants, taverns, bars, and supper clubs did not cause this pandemic, but they are systematically facing bankruptcy, closure, and economic ruin,” a statement provided by TLW President Chris Marsicano stated.

In its statement, TLW noted it encourages members to follow the guidelines of the Wisconsin Economic Development Corporation for preventing the spread of coronavirus.

However, it contends the Dept. of Health Services' decree was enacted improperly. Citing the Wisconsin Supreme Court’s decision ending the extension to the Safer at Home emergency order, the League argues DHS and Secretary-designee Andrea Palm would have needed to go through the process of creating an administrative rule to issue such a mandate.

“As the Supreme Court noted in Palm, the Secretary-designee is not without any power to act in the face of this pandemic, but she must follow the law that is applicable to state-wide emergencies,” the TLW wrote.

Its assertion mirrors the argument put forth by Republican legislative leaders last week. Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos described the new order as “unenforceable” for the same reason and produced a memorandum from the Wisconsin Legislative Bureau that indicated the DHS order would be bound by the Safer at Home precedent if were adjudicated.

The next day a follow-up memorandum, based on a question from the Democratic Minority Leader Sen. Janet Bewley, pointed out that the order is enforceable until it expires, Palm ended it early, or a court determines otherwise.

A spokesperson for Gov. Evers' Office, Britt Cudabek, told NBC15 the Administration believes the order stays within the parameters of the earlier Supreme Court decision.

In a separate case, which challenged the statewide mask mandate not this order, the state’s Assistant Attorney General Colin Hector argued the massive surge of new cases since the beginning of September falls within the definitions of a public emergency. Using the example of a river flood, he argued that if it flooded, receded, then rampaged again, the governor would not be allowed to declare that second instance a disaster.

The recent spike constitutes a new basis for an emergency, he told that court. The pandemic is not one overarching disaster; instead, it contains reasons for disaster declarations in it. The state has not indicated if it believed that line of reasoning would hold in this case as well.

In her response, Cudabek also referred to the record-breaking number of COVID-19-related deaths, hospitalizations, and new cases reported in Wisconsin on Tuesday, adding “we continue to ask everyone to do their part to prevent the spread of this virus by staying home, limiting travel and gatherings, and wearing face coverings whenever in public.”

TLW noted that the legislature’s Joint Committee for Review of Administrative Rules directed the health agency to begin the rule making procedure for the indoor gathering order.

“The Tavern League of Wisconsin is committed to fighting the spread of COVID-19, but will not stand by and watch its members be forced out of business by unlawful orders,” the TLW statement added.

To create an administrative rule, as opposed to an emergency order, DHS would have to submit a scope statement to the Dept. of Administration and begin the rule-making process. The scope statement puts forth that, barring legislative action, any DHS rule will require affording the agency the power to regulate social distancing. It states that with no vaccine or treatment “there is no viable alternative.”

Following the ten-day public comment period, DHS officials would take the feedback provided and draft its proposed rule.

Once that 10-day period is over, DHS can publish the rule, going into effect immediately. However, the legislature’s Joint Committee for Review of Administrative Rules does have authority to meet and make changes to it if they deem it necessary.

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