Appeal Filed Challenging Governor’s Restrictions At Bars, Restaurants

Case Was Filed By A Western Wisconsin Bar And An Anti-Abortion Group

cars are parked outside of a bar at nighttime. neon signs light up the windows.
Patrons drink inside of a bar in Elkhorn, Wis., on Wednesday, Oct. 14, 2020. Angela Major/WPR

A group of plaintiffs that includes a western Wisconsin bar and an anti-abortion group has appealed a ruling that upheld the Evers administration’s limits on bar and restaurant capacity.

Their challenge, which was filed with a state appeals court Tuesday, argues the limits run afoul of a May state Supreme Court ruling that struck down the state’s “Safer at Home” order.

Barron County Circuit Judge James Babler rejected that argument in the early goings of the case Monday, ruling that the Supreme Court’s decision was unclear on the limits of the state’s power to restrict gatherings. Babler also ruled that plaintiffs in the case had not demonstrated that they were harmed by the restrictions.

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Gov. Tony Evers’ administration issued the restrictions in an effort to slow the spread of the coronavirus through an emergency order issued by state Department of Health Services Secretary Andrea Palm on Oct. 6. It took effect on Oct. 8 and are scheduled to remain in place until Nov. 6.

While the restrictions include a long list of exemptions, they directly affect bars and restaurants, which are limited to 25 percent of their usual capacity.

While the original lawsuit against the restrictions was filed by the Tavern League of Wisconsin, the appeal was filed by a different group of plaintiffs who joined the case later.

They include The Mix Up, Inc., a bar and grill in Amery, northwest of Eau Claire, as well as Liz Sieben, the business’ owner. They also include the group Pro-Life Wisconsin and it’s president, Daniel Miller.

They argue that their appeal is the only way “to protect their legitimate rights, including their rights to earn an honest living, to host fundraisers to support their charitable mission, and as taxpayers.”

According to Sieben, the latest restrictions on gatherings resulted in a 50 percent reduction in sales at her business while Pro-Life Wisconsin argues that the restrictions on gatherings made planning and scheduling for events “next to impossible.”

The attorney for the groups, Misha Tseytlin, is a former Wisconsin solicitor general who served in the state Department of Justice under former Attorney General Brad Schimel. As a private attorney, Tseytlin has worked extensively for GOP lawmakers in a wide array of high-profile cases.

The latest motion was filed with Wisconsin’s District 3 Court of Appeals, which covers 35 counties in the northern half of the state. While judges there can set their own timelines for hearing the case, plaintiffs asked the court for a ruling on the appeal by Friday.

The lawsuit is one of three working their way through the court system challenging a pair of emergency orders issued by the Evers administration.

The other two are both challenging the emergency orders Evers used to declare Wisconsin’s statewide mask mandate.

In one, which was filed with the help of the Wisconsin Institute for Law and Liberty (WILL), a judge sided with Evers, ruling nothing in state law prevented the governor from issuing multiple orders for the same pandemic. WILL has indicated it will appeal that ruling.

The other was filed directly with the Wisconsin Supreme Court as a petition for “original action,” meaning if the court accepts the case, it would bypass the usual appeals process. That case was filed by Jeré Fabick, a board member and policy adviser for the Heartland Institute. The Evers administration has until Thursday to respond to the challenge.

The flurry of lawsuits comes as Wisconsin grapples with its worst surge yet in COVID-19 cases and hospitalizations. The seven-day average for new cases is now at 3,287. One month ago, it was 1,838.