HARRISBURG – The U.S. Court of Appeals for the Third Circuit has stayed a lower court’s ruling declaring Gov. Tom Wolf’s coronavirus emergency measures unconstitutional while the appeal process continues, thereby keeping restrictions on crowd sizes relating to the pandemic in place.
In a first-ever repudiation of policies taken by top state officials to protect the public during the coronavirus pandemic, a federal judge last month had declared parts of Gov. Tom Wolf’s virus prevention strategies to be unconstitutional.
“The Court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms, in place when times are good but able to be cast aside in times of trouble,” U.S. District Court for the Western District of Pennsylvania Judge William S. Stickman IV said in his Sept. 14 ruling.
Stickman, appointed to the federal bench by President Donald Trump, opined that the Commonwealth of Pennsylvania’s official policy of keeping outdoor gatherings to first only 25, then 250, people as outright violating “the right of assembly enshrined in the 1st Amendment.”
Stickman further concluded that the stay-at-home and business closure orders enacted by Wolf and state Health Department Secretary Dr. Rachel Levine were also unconstitutional. Such orders followed the recommended guidance of health experts, in order to protect the public from COVID-19 and further transmission of the virus.
Since the lawsuit’s filing, the Commonwealth has lifted the stay-at-home orders and permitted most businesses to re-open, although others like restaurants, bars and salons continue to operate under strict occupancy restrictions.
The litigation was first filed in the U.S. District Court for the Western District of Pennsylvania on May 7 against Wolf and Levine, arguing those officials had exceeded the boundaries of their governmental authority.
Besides citizens and businesses, the plaintiffs included 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 stated each lawmaker is involved in the action only as a private citizen and not in their official government capacity – and the individual counties were dismissed from the case as Stickman issued his ruling on Monday.
Stickman also labeled the waiver process set up by the Commonwealth as arbitrary, in determining which businesses were determined to be “life-sustaining” and which were not.
“The court recognizes that defendants were acting in haste to address a public health situation. But to the extent the defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the commonwealth at least deserved an objective plan,” Stickman said.
The Wolf administration immediately appealed Stickman’s ruling to the U.S. Court of Appeals for the Third Circuit since it only applied to the business closure and stay-at-home orders, plus the indoor and outdoor limitations on gatherings and not the one still requiring masks to be worn in public.
“I will continue to do what is necessary to keep people safe and contain the virus. That’s the key. Containing the virus is the only way to protect our health and keep our economy going. We will appeal, and we will take that appeal as far as necessary to ensure we can do that. I want to reassure people that may be nervous or worried about what’s ahead this fall: No matter what, we will find a way to keep Pennsylvanians safe. And I’m going to keep urging the federal government and Republicans in the legislature to take steps to help workers, families and small businesses,” Wolf said in a statement after the original ruling.
Further, a stay of Stickman’s order was requested.
“Suddenly abandoning the large gathering limitations will allow the virus to freely spread throughout the Commonwealth. This risk of harm to the public outweighs any harm to plaintiffs. A stay will allow life-saving mitigation tools to remain in place while the Third Circuit reviews this matter,” counsel for the defendants said in the stay request.
UPDATE
Judge D. Brooks Smith of the U.S. Court of Appeals for the Third Circuit said in an order released Thursday that a stay of Stickman’s ruling, sought by Wolf and Levine as part of their appeal, was granted by the appellate court. Other motions at play in the case were also granted.
“The motion by appellants for stay of the District Court’s order pending appeal is granted and the unopposed motion by appellants to file a stay motion in excess of the word limit is granted. The motions by leaders of the Pennsylvania House of Representatives and Eagle Forum Education & Legal Defense Fund for leave to file briefs as amici curiae in support of appellees’ opposition to the motion for a stay are granted,” Smith said.
Smith authored the order on behalf of himself and colleagues Michael A. Chagares and Patty Shwartz.
The U.S. Supreme Court ruled it would not take up the battle over Pennsylvania’s business closure orders this past May, and during the summer, the Supreme Court of Pennsylvania threw out a case from Republican lawmakers who wanted to end Wolf’s emergency declaration.
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