A Butler attorney, on behalf of Butler, Fayette and Washington counties, recommended the U.S. Supreme Court agree to consider the constitutionality of Gov. Tom Wolf's business closure orders in the wake of the coronavirus pandemic.
In an amicus curiae brief filed Tuesday, Tom King urged the court to grant the petition brought by the Friends of Danny DeVito for certiorari to “address the constitutional limitations on the use of executive orders to deprive the citizens of the Commonwealth of Pennsylvania of the free exercise of their constitutional rights.”
A writ of certiorari orders a lower court to deliver its record in a case, so that the higher court may review it. The U.S. Supreme Court uses certiorari to select most of the cases it hears.
The request for certiorari came after the state supreme court, in a 4-3 ruling April 13, upheld Wolf's order of March 19 that adopted an exemption system for “life-sustaining” business to stay open during the COVID-19 outbreak.
The court, in its order, rejected the claim by DeVito, a Republican state House candidate in Allegheny County, and a group of business owners that the order violated both the U.S. Constitution and state law.
In part, the court ruled that the governor's powers in the midst of a state of emergency superseded the concerns of the temporary shutdown. DeVito and his fellow petitioners argued that the exemption system, in effect, unfairly targeted businesses without judicial review.
The lack of review, the filing asserted, “constitutes a serious denial of the constitutional rights of petitioners and tens of thousands of Pennsylvania businesses that are similarly situated.”
At the same time they filed their appeal, the group's attorney, Marc Scaringi of Perry County, filed a separate request to the U.S. Supreme Court asking for an immediate stay of the governor's orders. If granted, the stay would have at once reversed Wolf's orders and reopened businesses. But on May 6, Justice Samuel Alito denied the group's application for a stay.
Arguing Wolf's orders went too far
King, in his amicus brief, argues that Wolf's order violates substantive and procedural due process provisions under the 14th Amendment in its business closure order.
“The governor decided by fiat what was life-sustaining and what was not life-sustaining,” the brief said. “The governor offered no guidance relative to the proclamation, and did not see fit to submit such classification to the General Assembly for guidance and approval.”
The order and Wolf's subsequent three-phrase, color-coded reopening plan “constitute arbitrary, capricious, irrational and abusive conduct,” the brief said, “that interferes with petitioners' liberty and property interests” guaranteed by the 14th Amendment.
The brief takes to task the governor's waiver process by which designated “non-life sustaining” businesses could apply for waivers that would allow them to reopen.
“There was no guidance provided as to how the waiver requests were going to be evaluated; no in-person hearing; no neutral arbitrator; and no means to cross examine witnesses because the process did not even contemplate the witness testimony,” the brief said.
The governor's action also violates the takings clause under the Fifth Amendment, King wrote in the brief, by, in essence, denying business owners the use of their physical property while the closure order was in effect.
That clause mandates that private property cannot be taken for public use without “just compensation.”
But the Wolf administration countered that extraordinary action was taken to protect public health and safety, not as a taking of property.
In defense of that action, the administration cited Supreme Court cases, including one that ruled compensation was not required when state law mandated the destruction of diseased cedar trees to protect other trees in the area.
Safeguarding the public from the spread of COVID-19, the administration claimed, is even more warranted of an action than protecting trees.
King, however, dismissed that argument, noting that it does not distinguish between diseased trees and healthy trees.
“... unlike the cedar trees at issue ... there is no evidence that the petitioners or petitioners' employees are infected with the COVID-19 virus,” he wrote.
Also unlike the cited case, which required evidence that the trees targeted for destruction were or could be the source of the communicable disease, Wolf's order “prohibits petitioners' business operations with no evidence that the business operations are or might be the source of past or future COVID-19 infections.”
Additionally, the brief noted that the “activities of petitioners' business operations are no more likely to result in the further transmission of the COVID-19 virus than the business activities of businesses designated as 'life-sustaining' businesses by the governor.”
To be or not to be... life-sustaining?
The brief also argues that the governor's business closure and stay-at-home orders violate the equal protection clause under the 14th Amendment.
The classification of “life sustaining” and “non-life sustaining” businesses, for example, “literally puts some people out of business because of the random classification,” the brief said. King, in the brief, also claimed Wolf's reopening plan infringed on the equal protection provision, claiming the designation of counties as “red” and “yellow” were “based upon an arbitrary county line demarcation.”
He wrote, “The individual, with the same type of business, with the same number of employees, with the same number of would-be customers, with the same health considerations in place, and with all other factors being equal, is left feeling that he is not being treated the same as his business competitor. And, he is not because of the governor's arbitrary and irrational designations.”
Amicus briefs, like King's, are filed by third parties who have a special interest or expertise in a case, and seek to urge the court to hear a case.
The agreement of four U.S. Supreme Court justices would be needed to grant certiorari to DeVito and his fellow petitioners, which would allow the full court to hear the case.
King's legal action Tuesday followed a lawsuit he filed May 8 in U.S. District Court on behalf of the same counties named in the amicus brief as well as four Republican lawmakers and several businesses against Wolf and state Secretary of Health Dr. Rachel Levine. The suit is waging its own constitutional challenge of the governor and Levine over the state's business closure orders and reopening plan.