Barron County Judge Reimposes 25% Capacity Limit

The judge denied a request by the Tavern League of Wisconsin to block the order. A lobbyist from the group tells the Milwaukee Journal Sentinel they will not appeal the judge's ruling.

By Will Kenneally

October 19, 2020

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Barron County Courthouse

Barron County courthouse. (Courtesy: Barron County)

A judge in Barron County reimposed the state’s 25% capacity limit on indoor public gatherings in a narrowly-tailored ruling on a temporary injunction.

The ruling Monday comes after a Sawyer County judge issued a temporary restraining order last week that prevented the 25% capacity limit from being enforced.

The Barron County judge Monday denied a push by plaintiffs, including the Tavern League of Wisconsin, for a temporary injunction on the capacity limit.

In his ruling from the bench, Judge James Babler said it was not clear-cut that the plaintiffs would win the case as a whole, and questioned what effect an injunction from his court would have.

“There is nothing in the affidavits to show that any of the plaintiffs have complied with the order, [or] that complying with the order has somehow harmed them,” Babler said.

He said it was unclear whether a downtick in business the plaintiffs attested to was due to the capacity limit order, or just a product of the pandemic itself.

Plaintiffs argued that the threat of enforcement of the order should have been enough to show injury to the bar owners.

Lawyers for the plaintiffs said that the capacity limit order issued by health secretary Andrea Palm is similar to the stay-at-home order the Wisconsin Supreme Court struck down in May.

In the May ruling, the Supreme Court carved out an exception in a footnote: the health secretary can issue a blanket rule to close schools, but would otherwise need to seek approval from the Legislature to issue stay-at-home orders.

Lawyers for the Evers administration said the statute that allows the health secretary to close schools also gives her the power to limit public gatherings.

Babler said Monday the scope of the secretary’s powers should be decided by a higher court.

To bury it in a footnote, gives this court absolutely no clarity,” he said. “And I beg the Supreme Court for clarity, because should this issue be decided by them, trial judges need to know how they need to rule.”

Gov. Tony Evers lauded the ruling, saying “this critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings.”

A lobbyist for the Tavern League of Wisconsin told the Milwaukee Journal Sentinel in the wake of the ruling that the group did not have plans to appeal the decision.

“We’re disappointed but we’re going to suck it up, tell our members this is what it means, and hope the hell we can get through it,” he told the Journal Sentinel.

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