Gov. Tom Wolf's crowd-size limitation order will remain in place — at least for now.
A three-judge panel Thursday stayed the ruling by U.S. District Judge William S. Stickman IV that declared that order — along with the now-suspended business closure and stay-at-home orders — unconstitutional, temporarily halting its effects until the U.S. Court of Appeals for the Third Circuit could hear the appeal filed by the governor and state Secretary of Health Dr. Rachel Levine.
Stickman determined that the orders by Wolf and Levine violated the due process and equal protection rights of Pennsylvanians and granted a declaratory judgment for four local Republican elected officials and several area businesses that were plaintiffs in the case. Butler, Fayette, Greene and Washington counties were dismissed from the case, with the judge finding they don't have standing to sue.
In the application for a stay, the state Attorney General's office, representing Wolf and Levine, argued that the jurisprudence upon which Stickman relied was unsound, calling the order “nonsensical” and “fatally flawed.”
In return, attorney Tom King, representing the plaintiffs, said in the response that the state's request for a stay should be stricken as it included more than two dozen sources not in the original court record.
While those arguments will have to play out in the federal appellate court, the orders return to their original states: No more than 25 people — with some limited exceptions — can congregate indoors, while no more than 250 people can be together outside. The stay-at-home and business closure edicts will continue to not be enforced, however, as they are still suspended.
Unlike Stickman's denial of a stay in September, the panel of judges did not issue an opinion Thursday, meaning neither the state nor the plaintiffs received specific elucidation as to why the stay was granted.
King said he was “disappointed” about the stay, but noted that the stay does not keep the measures in effect permanently.
“We are fully prepared to argue the appeal on its merits before the Third Circuit and, if necessary, before the U.S. Supreme Court,” King said.
Wolf's office said it was “pleased” the stay was granted.
One criterion the federal court uses in deciding whether to issue a stay is gauging the likelihood of success of an appeal. While not universally granted in such a case, stays are more likely in a case where there is a “better than negligible,” but not necessarily a “more likely than not” chance of success.
While the three-judge panel — which included Chief Judge D. Brooks Smith and Circuit Judges Michael Chagares and Patty Shwartz — determined there was at least some chance of success, they may not be the same jurists to hear the full appeal.
One activity affected by the crowd size limitations — and destined to be affected by the stay — is spectating at sporting events, especially as high school football and soccer seasons heat up and particularly after Wolf's veto of House Bill 2787, which would have granted schools the sole ability to set limitations on spectators at events.
In places like Moniteau School District, plans had been made to admit spectators pursuant to Stickman's Sept. 14 ruling.
Moniteau Superintendent Thomas Samosky said that while the district had retained some measures to maintain social distancing, they must change their current plans to comply with the reinstated orders.
“We will be compliant with the governor's previous orders,” he said. “We're just trying to ensure our spectators are safe as well as our staff, and obviously we want to ensure that everyone remains healthy.”
Mars Area athletic director and football coach Scott Heinauer said the district is waiting for more guidance from the governor's office.
“We will have to follow the governor's 25/250 limits he has set for schools,” Heinauer said.
Butler Area athletic director Bill Mylan said the administration was still discussing what to do ahead of Friday night's home football game against Cathedral Prep.
Brian White, superintendent of the Butler Area School District, said the complications from the stay extend past athletics in the school setting.
While the congregate gathering limits don't apply in many instructional environments — more than 25 students are allowed in cafeterias at once, for example — other types of extracurricular activities may have to be canceled or altered to comply with the state's orders.
“Ultimately, we're starting to get deeper into the fall now, into the school year, things like the school play, musical, it's impossible to do a congregate group limit of 25 or less,” he said. “Right now, this stuff has only been impacting athletics primarily, but it's going to start impacting more events.”
Outside of the school setting, other events will also be affected.
The Butler Home Show, set to start Friday afternoon, had planned on permitting 300 people inside the event at one time. How that would be affected with a state-mandated capacity of one-twelfth its expected number is yet to be seen, and a phone call seeking comment was not immediately returned.