Appeals court blocks 1/4 occupancy rule

Posted at 2:15 p.m. on Friday, November 6, 2020

The Brillion News

WAUSAU - The District III state Court of Appeals, in a 2-1 decision, reversed a decision by a Barron County Circuit Court Judge that denied the Tavern League of Wisconsin's request for a temporary injunction to block state Department of Health Services (DHS) Secretary Andrea Palm's order that many businesses operate at 25 percent of capacity due to COVID-19 transmission concerns.

The decision was handed down on Friday, November 6. Appeals court judges Thomas Hruz and Mark Seidl were in the majority, with Judge Lisa Stark dissenting.

The appeals court ruled that Barron County Judge James Babler erred when he refused to grant an injunction blocking Palm's order.

"It is ordered that the order [of Judge Babler] is summarily reversed and is remanded with directions that the circuit court grant [the] motion for a temporary injunction and conduct further proceedings consistent with this order.

Key parts of the November 6 ruling included:

• Emergency Order No. 3, issued on October 6 by Palm, was invalid because it did not follow state law that requires rulemaking procedures that involve legislative consent. "First and foremost, we agree with The Mix Up [a tavern that was party to the lawsuit] that under our supreme court's holding [in an earlier case] Emergency Order #3 is invalid and unenforceable, as a matter of law," the Appeals Court said.

• The precedent set by a decision earlier this year, in Wisconsin Legislature v. Palm, applies to the Order #3. That precedent said that "agency orders like Emergency Order #3 are 'rules' within the meaning [of state law], and so must follow Chapter 227's required rulemaking procedures." The appeals court said: "We conclude our supreme court's decision in [Wisconsin Legislature v. Palm] controls the outcome in this case."

• The Mix Up tavern has shown that it will sufferer irreparable harm to its business if a temporary injunction against Palm was not issued.

• The tavern has shown that a temporary injunction blocking Palm's order is the only legal remedy the business has available.

Here is the appeals case information:

Appeal Number 2020AP001742

Court of Appeals District 3 Tavern League of Wisconsin, Inc., Sawyer County Tavern League, Inc. and Flambeau Forest Inn LLC,      Plaintiffs, v. Andrea Palm, Julia Lyons and Wisconsin Department of Health Services,      Defendants-Respondents, THE MIX UP, INC (D/B/A, MIKI JO'S MIX UP), Liz Sieben, Pro-Life Wisconsin Education Task Force, Inc., Pro-Life Wisconsin, Inc. and Dan Miller,      Intervenors-Plaintiffs-Appellants.