The Wisconsin Supreme Court issued an opinion Wednesday stating Gov. Evers cannot restrict the capacity of restaurants and bars through executive order during the pandemic, and instead needs legislative approval to do so. 

The court said Emergency Order #3, which restricts the capacity of bars and restaurants to 25% to account for social distancing, falls under the definition of a rule. Evers and Department of Health Services Secretary-Designee Andrea Palm will need legislative approval to issue an emergency order of this nature again. 

Evers and Palm issued the order in October, and it was later blocked by state appeals courts after a lawsuit from the Tavern League of Wisconsin. The Wisconsin Supreme Court ruling upholds this decision. 

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This decision comes after the court also struck down Evers’ statewide mask mandate, another order aimed at slowing the spread of the COVID-19 pandemic in Wisconsin. Many counties currently have their own social distancing mandates in place, including Dane County which still has a mask mandate and some restrictions on gathering capacities under Emergency Order 15. 

Overall, COVID-19 case numbers have dropped since the end of 2020, but throughout Wisconsin, weekly averages have started to trend upward again even as vaccination increases, according to the Wisconsin Department of Health Services’ COVID-19 dashboard.