HARRISBURG – Citing its King’s Bench jurisdiction, the Supreme Court of Pennsylvania recently threw out an extraordinary relief petition that looked to nullify Gov. Tom Wolf’s executive order that shut down “non-life sustaining” businesses from operating during quarantine from the coronavirus.
On April 13, the Court arrived at the 4-3 ruling, which upheld Wolf’s order.
In the case of Friends of Danny DeVito Et.Al v. Wolf Et.Al, plaintiffs attempted to persuade the Court that Wolf’s executive order was in violation of the separation of powers doctrine; was equivalent to a regulatory taking; violated equal protection laws; violated the campaign committee’s rights to free speech and assembly; and violated their due process in the criteria creation for “life-sustaining” and “non-life sustaining” businesses.
The Supreme Court of Pennsylvania has the power to consider any case pending in a lower court and even some matters not pending in the courts when it sees the need to address an issue of “immediate public importance.” When it does so, the Supreme Court exercises its “King’s Bench power” or its power of “extraordinary jurisdiction," as provided by the Pennsylvania Constitution and Pennsylvania law.
Supreme Court Justice Christine Donohue authored the majority opinion, writing on behalf of herself and fellow justices Max Baer, Debra Todd and David Wecht. The quartet of justices agreed that Wolf’s order did not violate any separation of powers regulations.
“The Emergency Code specifically recognizes that under its auspices, the Governor has the authority to issue executive orders and proclamations which shall have the full force of law,” Donohue said.
“Moreover, as previously explained, the General Assembly, by and through its enactment of the Emergency Code, specifically and expressly authorizes the Governor to declare a disaster emergency and thereafter to control the ‘ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein.”
Plaintiffs in the case are a campaign committee for state congressional candidate Danny DeVito, real estate agent Kathy Gregory, B&J Laundry, Blueberry Hill Public Golf Course & Lounge and Caledonia Land Co.,
Donohue added any restrictions as to the use of the plaintiffs’ properties as a result of the order were only “temporary” and a “stop-gap measure” to address the virus.
“The Executive Order results in only a temporary loss of the use of the petitioners’ business premises, and the governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to ‘protect the lives, health, morals, comfort, and general welfare of the people. We note that the Emergency Code temporarily limits the Executive Order to 90 days unless renewed and provides the General Assembly with the ability to terminate the order at any time,” according to Donohue.
“Moreover, the public health rationale for imposing the restrictions in the Executive Order, to suppress the spread of the virus throughout the Commonwealth, is a stop-gap measure and, by definition, temporary. While the duration of COVID-19 as a natural disaster is currently unknown, the development of a vaccine to prevent future outbreaks, the development of an immunity in individuals previously infected and the availability of widespread testing and contact tracing are all viewed as the basis for ending the COVID-19 disaster.”
Donohue continued that the plaintiffs seeking review of the decision denying them waivers as to being grouped as “non-life sustaining businesses” is not appealable or practical – and further, social distancing guidelines immediately disqualify the necessary scope, scale and gathering necessary to conduct the appeal process.
“The decision to grant the waiver(s) was that of Gov. Wolf and Secretary Levine and was not an administrative adjudication of the Department Community and Economic Development,” Donohue stated.
“The grant letter does not even reference the DCED’s participation in the review process. Neither the Governor nor the Secretary is an ‘administrative agency.’ Because Article V, Section 9 does not confer a right of appeal from an executive decision of the Governor or the Secretary, no right of appeal lies in this instance.”
According to the Court majority, the plaintiffs’ equal protection claims also failed, as the campaign committee in their view was not similar to any legislative offices which remain open during the pandemic, nor is Blueberry Hill Golf Course any different than many other municipal golf courses that have closed in an effort to halt the spread of the coronavirus.
In addition, the First Amendment rights of the campaign committee were not abridged by Wolf’s order, per the Court, since they are still able to freely communicate and only prohibited from gathering at their offices due to social distancing guidelines.
The Supreme Court’s Chief Justice, Thomas G. Saylor, authored a concurring and dissenting opinion that stated the Court should not have exercised its King’s Bench power in this case – an opinion joined by fellow justices Kevin M. Dougherty and Sallie Updyke Mundy.
“Respectfully, I would refrain from exercising discretion to grant King’s Bench jurisdiction, albeit I agree with the majority that the circumstances are extraordinary and matters of great public importance are involved,” Saylor said.
“I find, however, that several material aspects of the petitioners’ claims may involve issues of disputed fact. And it also appears to me that some of the majority’s conclusions have mixed legal and factual overtones.”
Saylor further outlined both his agreement with and divergence from the majority opinion.
“I lend my support to the majority’s conclusion that the present public-health crisis may properly be regarded as a ‘disaster emergency,’ triggering the governor’s special powers to respond...I am less confident, however, in the majority’s conclusion that ‘summary administrative action’ by the executive branch to close many businesses throughout the Commonwealth must evade judicial review as a check against arbitrariness,” Saylor stated.
Saylor also advocated that the Commonwealth Court should examine the issues raised by the plaintiffs, with the Supreme Court available to review that court’s decision, if necessary.
“In my considered judgment, the matters raised in the emergency application for extraordinary relief – especially those related to alleged inconsistency and arbitrariness in the waiver process – should be left to the Commonwealth Court, in the first instance, as the court of original jurisdiction invested with fact-finding capabilities,” Saylor said.
Supreme Court of Pennsylvania case 68 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com