HARRISBURG – Pennsylvania Gov. Tom Wolf says his executive order to close down non-life-sustaining businesses was lawful and that a wave of new coronavirus infections among the public may be in the cards, if the U.S. Supreme Court decides to support a challenge to his order.
That challenge was made to the nation’s high court by plaintiff counsel in the Friends of Danny DeVito Et.Al v. Wolf Et.Al case, which resulted in a narrow defeat for the plaintiffs in the Supreme Court of Pennsylvania in mid-April.
Citing its King’s Bench powers in that instance, Pennsylvania’s top court threw out an extraordinary relief petition that looked to nullify Wolf’s executive order which shut down “non-life sustaining” businesses from operating during quarantine from the coronavirus, and objected to the process by which businesses were designated.
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.
In 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.
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.
On April 13, the Court arrived at a 4-3 ruling, which upheld Wolf’s order.
The Supreme Court of Pennsylvania’s majority opinion stated that Wolf’s order did not violate any separation of powers regulations – though its Chief Justice, Thomas G. Saylor, authored a concurring and dissenting opinion which believed the plaintiffs had raised areas of disputable fact.
That view was seconded by counsel for plaintiffs, Marc A. Scaringi.
“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 further 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.
Scaringi then filed a writ of certiorari to the U.S. Supreme Court, asking it to consider the challenge his clients made to Wolf’s executive order.
In a brief filed Monday, counsel for Wolf responded the order had been a lawful use of police powers due to the seriousness of the pandemic, and there would be a serious health risk to the public in the form of a new spread of coronavirus infections if his order were overturned by the highest court in the land.
“The Supreme Court of Pennsylvania unanimously agreed that the governor, under Pennsylvania law, had authority to enter the executive order, that the order was a lawful exercise of Pennsylvania’s police power, and that the order did not violate applicants’ constitutional rights. Because of the governor’s order enforcing social distancing, Pennsylvania slowed the spread of the virus and reduced its death toll,” brief read in part.
“Despite this, applicants seek to upend the status quo and force Pennsylvania to prematurely reopen all business locations, regardless of public health data and contrary to the phased reopening currently underway based on that data. Such a premature precipitous action, according to experts, will cost lives.”
As to the conflict over the process by which Pennsylvania businesses were deemed “life sustaining” or “non-life sustaining”, the governor explained a system employed by the U.S. Office of Management and Budget was used to make those decisions, and time was of the essence in responding to the pandemic.
“Applicants’ argument is nothing more than a public policy disagreement with the governor’s determination as to which physical locations would remain open and which would be temporarily closed. Applicants essentially argue that if they had been empowered by law to make these life and death decisions, they would have responded to this global crisis differently,” counsel for Wolf stated.
The brief stated Wolf’s order was issued to strike a balance between the state economy and protecting the lives of millions of Pennsylvania citizens.
“During an unprecedented and rapidly evolving global health disaster, deference to the public policy decisions of the Commonwealth is most appropriate. The governor’s order balances the economic interests of the Commonwealth against the health and lives of 12.8 million Pennsylvanians. Temporarily closing certain physical locations in order to protect lives is certainly not invidious or wholly arbitrary. The health and survival of those citizens is the most compelling of state interests, let alone a legitimate one.”
The petitioners are represented by Marc A. Scaringi of Scaringi Law, in Harrisburg.
The respondent is represented by J. Bart Delone of the Pennsylvania Attorney General’s Office, also in Harrisburg.
U.S. Supreme Court case 19-A-1032
Supreme Court of Pennsylvania case 68 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com