HARRISBURG – An attorney for plaintiffs who recently lost their challenge of Gov. Tom Wolf’s executive order which mandated “non-life sustaining” businesses shut down during the coronavirus quarantine says the state Supreme Court erred in its decision-making and further legal action to the U.S. Supreme Court is in the works.
Citing a rare use of its King’s Bench jurisdiction, the Supreme Court of Pennsylvania recently took up and then rejected an extraordinary relief petition that looked to nullify the governor’s executive order.
In the case of Friends of Danny DeVito Et.Al v. Wolf Et.Al., plaintiffs including 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., 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.
On April 13, the Court arrived at the 4-3 majority ruling, which upheld Wolf’s order and denied the plaintiffs’ claims. The dissenting trio of justices, led by Supreme Court of Pennsylvania Chief Justice Thomas G. Saylor, felt that valid issues were raised in the case that may be best set before another court instead.
Counsel for the plaintiffs, Marc A. Scaringi of Scaringi Law in Harrisburg, agrees.
“We made challenges to the Supreme Court of Pennsylvania that the executive order deprives our clients, and all Pennsylvania businesses on the non-life-sustaining list, including those who filed for waivers and were denied, of their rights to due process guaranteed by the 5th Amendment and the 14th Amendment,” Scaringi said.
“The executive order [also] constitutes a taking of private property for public interest without just compensation to the property owners, as guaranteed by the 5th Amendment to the United States Constitution.”
Scaringi continued that the waiver process in the listing of two classifications, life-sustaining and non-life sustaining, was challenged as “arbitrary and capricious” and violative of the due process clause of the 5th and 14th Amendments, in addition to the equal protection clause of the 14th Amendment – while the executive order deprived the plaintiffs and similarly-situated businesses of their rights to free speech and assembly under the 1st Amendment.
In order to appeal these issues, Scaringi is in the process of filing for review by the U.S. Supreme Court.
“We are now going to be filing an application in the Supreme Court of Pennsylvania asking it to stay the enforcement of Gov. Wolf’s executive order, pending our filing and disposition by the United States Supreme Court of a petition for writ of certiorari – that we intend to file very soon in that court – asking it to reverse the Supreme Court of Pennsylvania and strike down the executive order,” Scaringi said.
Outside of the constitutional challenges necessitating the exclusive recourse of the U.S. Supreme Court, Scaringi indicated that pursuing further action in the Commonwealth Court of Pennsylvania, as Saylor suggested in his concurring and dissenting opinion, was not an option due to the state’s highest court already dismissing their claims in their entirety.
“I like the concurring and dissenting opinion, because we have the Chief Justice of the Supreme Court of Pennsylvania and two justices who signed onto it, showing their real concern for the arbitrariness and capriciousness of the waiver denials and the list,” Scaringi said.
Scaringi agreed with Saylor’s view that the “temporary” nature of overtaking private property by a public entity like the state government may not be so temporary for businesses unable to sustain revenue losses for the duration of such a closure order.
“That was good language and reasoning that we have already cited in our petition for writ of certiorari and will present to the U.S. Supreme Court,” Scaringi stated.
As to its effects on businesses and workers throughout Pennsylvania, Scaringi termed the governor’s executive order as “catastrophic” and the state Supreme Court not permitting judicial review of a waiver denial as “anathema.”
“The most troubling part or component of the Supreme Court of Pennsylvania’s majority opinion is its denial of judicial review. In effect, there is no judicial review in a time of an emergency disaster declaration. That is unprecedented, that has never been ruled before. That’s the first time that the Supreme Court has so opined. That is very troubling to me, and it should be to all Pennsylvanians,” Scaringi said.
“If the governor of this commonwealth declares a disaster emergency, there is therefore no right to judicial review during the disaster emergency. To me, that is patently unconstitutional. But nevertheless, that’s where we are.”
According to Scaringi, more than 18,000 businesses which were deemed “non-life-sustaining” applied for waivers to Pennsylvania’s Department of Community and Economic Development to reopen and were collectively denied.
“The denial is an email, which is boilerplate. It just says, ‘We have determined that your business is not life-sustaining.’ That’s it. Now, the state Supreme Court says if you get that denial, you have no right to appeal that denial to a court. You’re out! You are out of business with no judicial review, for as long as the governor wants you to stay out of business. That is anathema to me, that’s the antithesis of due process, judicial review and constitutional rights,” Scaringi said.
Supreme Court of Pennsylvania case 68 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com