PITTSBURGH – A federal judge has ordered an expedient hearing for a complaint brought by 17 plaintiffs, including four Pennsylvania counties and four members of the state House of Representatives, seeking declaratory judgments that their constitutional rights were violated by Gov. Tom Wolf’s business shutdown orders in the wake of the coronavirus pandemic.
In his May 28 order, U.S. District Court Judge William S. Stickman provided all parties until this past Monday to submit reports on mutually agreed-upon territory for discovery and otherwise, in addition to whether an evidentiary hearing was necessary or the parties wanted to proceed to oral argument.
On May 7, the litigation was filed in the U.S. District Court for the Western District of Pennsylvania against Wolf and state Secretary of the Department of Health Rachel Levine.
Besides citizens and businesses, the plaintiffs include Butler County, Fayette County, Greene County and Washington County, plus four members of the Pennsylvania House of Representatives: Mike Kelly, Marci Mustello, Daryl Metcalfe and Tim Bonner. However, the litigation states each lawmaker is involved in the action only as a private citizen and not in their official government capacity.
Much like a similar lawsuit that originated in Pennsylvania and was recently rejected by the U.S. Supreme Court, the suit takes Wolf, Levine and the shutdown orders instituted as a result of the coronavirus pandemic to task, claiming they violated the constitutional rights of each of the plaintiffs.
“Defendants’ orders have so deprived these plaintiffs of the economic benefits and use of their property that the resulting financial impact will adversely impact these plaintiffs’ business for an indefinite period and, unless immediately rescinded, threaten the future viability and sustainability of the businesses,” the suit stated.
The suit further stated the process by which businesses were deemed either “life sustaining” or “non-life sustaining” and the subsequent waiver process were both “capricious and arbitrary," that the shutdown order represented an unlawful taking of property, violated due process.
Despite the plaintiff counties being moved through different phases of re-opening, currently from “red” to “yellow” and planned to move to “green” on June 4, and since more than one of the plaintiffs’ claims were connected to continuing circumstances, declaratory judgment and a speedy hearing on those issues were solutions which Stickman found were appropriate.
“After carefully reviewing the allegations in the complaint, the Court holds that merely moving from one phase to another, less restrictive phase, will not automatically render moot plaintiffs’ claims relating to the business shutdown or re-opening requirements, nor will it moot their First Amendment claims. To the extent that plaintiffs can plausibly assert that the continuing restrictions infringe upon protected liberties, they may continue to pursue declaratory action,” Stickman said.
However, Stickman also ruled that declaratory action was not appropriate to examine claims of the plaintiffs related to 5th Amendment or claims challenging the waiver process.
“Here, the declaratory relief sought by plaintiffs – that the governor’s business shutdown orders effectuated an unconstitutional taking – would be the functional equivalent injunctive relief. Plaintiff may have a remedy for the takings that they allege, but declaratory relief is not the appropriate avenue to pursue it,” Stickman stated.
In the process, Stickman referred to a U.S. Supreme Court case Knick v. Township of Scott, Pennsylvania which stated injunctive relief on takings would be foreclosed as long as “just compensation remedies are available.”
As to waivers, Stickman added: “Those violations are in the past, even if the damages incurred from the denial of a waiver may be ongoing. Plaintiffs are not without remedy to challenge certain aspects of the waiver process. But, a declaratory judgment is not the procedural framework to seek that remedy.”
For violation of the taking clause of the 5th Amendment, violation of substantive and procedural due process of the 14th Amendment, violation of the equal protection clause of the 14th Amendment and violation of the 1st Amendment under 42 U.S.C. Section 1983, the plaintiffs are seeking the following joint and several relief:
• A declaratory judgment that issuance and enforcement of the business shutdown orders is unconstitutional for the reasons stated herein, and that the actions of the defendants are unlawful and unconstitutional;
• A permanent injunction to prohibit defendants from enforcing the business shutdown order in the manner and fashion engaged by defendants, the elimination of the arbitrary and capricious “waiver” system;
• A declaration that the 1st Amendment rights of the plaintiffs and the citizens of the Commonwealth have been violated by the various actions of the defendants and the said defendants are enjoined from engaging in such violations and declaring them to be null and void;
• Costs and expenses (including reasonable attorneys’ fees); and
• Such other relief as the Court deems appropriate.
The plaintiffs are represented by Thomas W. King III, Jordan P. Shuber, Ronald T. Elliott and Thomas P. Breth of Dillon McCandless King Coulter & Graham, in Butler.
The defendants are represented by Karen Mascio Romano of the Pennsylvania Attorney General’s Office, in Harrisburg.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00677
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com