Evers’ 25% Public Gatherings Limitation Blocked

October 28, 2020 | COVID | Current Events 


Chalk board with "social distancing" written on it

In a sequel to our most recent KEW Tip (Evers’ 25% Public Gatherings Limitations Stands; Appeals Expected), a Wisconsin Court of Appeals granted interlocutory review, as well as a temporary injunction, to plaintiffs seeking to overturn the 25% capacity limit issued by the Wisconsin Department of Health Services in Emergency Order #3.

As we discussed previously, a judge in Wisconsin in Barron County denied a request for an injunction filed by the Tavern League of Wisconsin and two pro-life groups. The plaintiffs argued that Emergency Order #3 exceeded the powers of the Secretary of the Department of Health Services to act unilaterally, as the Wisconsin Supreme Court reasoned in Legislature v. Palm, 2020 WI 42, the case overturning Wisconsin’s Safer-at-Home order this past spring. The circuit court denied the injunction as, among other reasons, it could not conclude that the plaintiffs had shown a significant likelihood of success on the merits of their claim.

Generally, a party can only appeal case after a final order has been issued. A final order is “a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties” according to Wis. Stat. § 808.03. As examples, a court granting summary judgment, or verdicts at a trial are final orders. In certain circumstances, a party can appeal a nonfinal order, a trial court decision that does not dispose of a case if the appeal would help to terminate the litigation, prevent irreparable injury, or clarify important issues. The Court of Appeals found that this case merited an expedited, interlocutory appeal.

The plaintiffs in the Barron County case sought an interlocutory appeal, and with it a request for a stay of enforcement of the 25% occupancy limits while the appeal is pending. To merit a temporary injunction, a proponent must show: 1) a strong likelihood of success on the merits; 2) that it faces irreparable injury if no stay is granted; 3) that no substantial harm will come to other interested parties; and 4) that a stay will do no harm to the public interest. The Court of Appeals noted this is a balancing test, and that more of one factor may excuse less of another. Without providing any reasoning or analysis, the Court of Appeals found that the plaintiffs had shown sufficient likelihood of success on appeal to grant the plaintiffs’ requested stay pending appeal.


So, as of October 23, the mass gathering limits set in Emergency Order #3 are stayed until the appeal is resolved.

As always, Kramer, Elkins & Watt, LLC can help you and your business make sense of any restrictions or regulations you face. Contact us with any questions today!