Wolf's coronavirus orders ruled unconstitutional

Judge says decision is check on executive power

September 15, 2020 Cranberry Local News

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A federal judge has ruled that Gov. Tom Wolf's coronavirus mitigation orders were unconstitutional in a Butler County-led lawsuit challenging the governor's business shutdown and stay-at-home orders.

In a 66-page opinion Monday, U.S. District Judge William Stickman IV wrote that Wolf and state Secretary of Health Dr. Rachel Levine violated the First Amendment right to freedom of assembly and the 14th Amendment right to due process and equal protection.

Stickman wrote that he believes Wolf and Levine “undertook their actions in a well-intentioned effort to protect Pennsylvania from the virus. However, good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.”

Stickman wrote that the government engaged in a dangerous strategy in which rights were taken away.

On March 6, Wolf signed a proclamation of disaster emergency, citing the spread of the coronavirus as an “imminent disaster.”

The order gave Wolf extraordinary authority to do things such as limit the number of people at gatherings, invoke a stay-at-home order, and order the closing of non-life-sustaining businesses.

Stickman found that Wolf's restrictions on crowd sizes violated the right of assembly protected by the First Amendment. Stickman also found that Wolf's stay-at-home order and business closure mandate violated the due process clause in the 14th Amendment.

And finally, he found that the business closure mandate violated the equal protection clause in the 14th Amendment.

“It's a great victory for Butler County and their constitutional rights were upheld,” said Butler attorney Tom King, the lead attorney for the plaintiffs.

“The Constitution provides for individual rights. That's what this case is about. No one should tell them they have to open, but if you have to stay open to survive, no one should tell you otherwise.”

Wolf to seek stay, appeal

A spokesman for the governor said the administration was disappointed with the ruling, and it would seek a stay of the decision and file an appeal.

For now, the state's response to the virus will not change.

When Levine gave her weekly coronavirus update Monday, reporters asked how the ruling will affect the orders, guidance and rules put into place, and whether she or Wolf have considered altering them.

“Anything that limits our ability and the number of tools we have is a challenge to public health,” she said. “We have not made any decisions at this time.”

Levine said the orders have accomplished their goals to contain, mitigate and manage the pandemic to keep as many people healthy as possible. She said the state's work has been applauded by professionals in the public health sector.

Levine urged Pennsylvanians to stay the course in the COVID-19 fight.

Ruling a check on Wolf's power

In his decision, Stickman noted that his ruling was meant to act as a check on Wolf's executive power.

“There is no question that a global pandemic poses serious challenges for governments and for all Americans,” Stickman wrote. “But the response to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties.”

While acknowledging the dangers of the virus, Stickman cautioned against the use of executive power to try to stop the virus.

“There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment.”

Stickman noted that even though the governor's orders closing non-life-sustaining businesses weren't in effect, they could be reinstated at his “will.”

Stickman wrote that courts often are willing to give extra authority to the government when responding to a specific crisis. But in this case, he said, the end date kept getting pushed back.

“It is no longer March. It is now September and the record makes clear that defendants have no anticipated end-date to their emergency interventions. Courts surely may be willing to give in a fleeting crisis,” Stickman wrote. “But here, the duration of the crisis — in which days have turned into weeks and weeks into months — already exceeds natural disasters or other episodic emergencies and its lengths remain uncertain.”

Stickman returned to earlier testimony given by Wolf's staff about how decisions were made inside the administration. Stickman notes the group's full membership is unknown and that meeting minutes were never kept of the group's gatherings.

Counties dismissed as plaintiffs

The plaintiffs include Butler, Fayette, Greene and Washington counties, four Republican lawmakers and several small businesses in those counties.

Stickman also agreed with Wolf's lawyers, saying that the four counties are not an appropriate entity to be entered as plaintiffs in the case because counties are part of the state and do not possess rights under the Constitution. For those reasons, Stickman dismissed the counties from the suit and, therefore, they cannot obtain relief from the case.

King, of the firm Dillon McCandless King Coulter & Graham in Butler, said the decision to dismiss the counties doesn't affect the outcome in any way.

King, who worked on the case with Tom Breth and Ronald Elliot, credited county Commissioners Leslie Osche and Kim Geyer with bringing the case to them.

“They had the guts to stand up to the governor. They had courage to stand up. I was fortunate enough to get the call from them,” King said.

Who pays legal fees?

With the counties dismissed from the case, some questioned who would fund the legal fees of King and the others.

King noted they haven't charged the county for their representation, but he didn't rule out the possibility. He said he and the plaintiffs' other attorneys would request that the state instead pay for their bills for the countless hours they spent on the case.

“Hopefully, the county won't have to pay us a penny,” King said.

Eagle staff writer Nathan Bottiger contributed to this report.

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