WI Supreme Court says governor's administration cannot issue capacity limits

MADISON, Wis. - The Wisconsin Supreme Court ruled on Wednesday, April 14 against the Evers' administration capacity limits. The court decided the order had to go through the state's rule-making process which includes legislative overnight.

The Wisconsin Supreme Court decision was all about the state limits -- and will not impact the current capacity limits in Milwaukee. Still, business owners in Brew City are watching the pandemic and hoping to open up more soon.

At Milwaukee's Black Husky Brewing, the fight against the pandemic is not yet in the can. Co-owner Tim Eichinger has talked COVID-19 relief with President Biden and spoke of city limits with Milwaukee's Commissioner of Health, Kirsten Johnson.

"I think we’d love to have all restrictions lifted, but I don’t think that any of us at this point feel that this is quite the right time. we’re going to follow what we are supposed to do from the City of Milwaukee. We have a COVID safety plan. We are going to follow that," Eichinger said.

The state supreme court ruling does not apply to local health orders, but to a statewide order. 

Former Wisconsin Health Services Secretary Designee Andrea Palm in October limited public gatherings, bars and restaurants to 25% capacity. It included a number of exemptions, like churches and political rallies. 

A lower court blocked the order, which expired in November, but Palm wanted to issue a new order. 

The Wisconsin Supreme Court heard oral arguments in December.

"It’s no blank check. There's no unfettered discretion here. The law says precisely what the agency can do: forbid public gatherings," argued Colin Hector, assistant attorney general, during the oral arguments.

Wisconsin law says, "The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics."

Wisconsin Supreme Court

However, the Wisconsin Supreme Court's 4-3 ruling determines the occupancy order "was not validly enacted and was unenforceable." The majority says the administration needed to go through the formal ruling-making process.

It's a win for ProLife Wisconsin, which challenged the order, saying it stopped its ability to host events.

"We’re pleased because we kind of view it as a David and Goliath story. And we’re very grateful to the Wisconsin Supreme Court for their rejection of this abuse of power. We see it as a win for all Wisconsinites," said Anna DeMeuse, communications director of ProLife Wisconsin.

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For now, Black Husky is trying to do its part to crush COVID.

"We need to get that as high a percentage of people vaccinated as possible, to get to a point where restrictions are eased or even lifted," Eichinger said.

So they are offering a free beer if you get vaccinated. So far, they have handed out more than 400 pints. 

The city will remove capacity limits at Phase 7 -- when vaccinations in the city reach 80%. Right now, 13% of city adults are fully vaccinated. Milwaukee had considered backtracking back to Phase 5, but it looks like they are going to stay at Phase 6, which includes capacity limits, for a couple more weeks.