PHILADELPHIA – Counsel for the Borough of West Chester have countered a lawsuit filed against the municipality and its mayor which challenges the constitutionality of their emergency declaration orders issued during the coronavirus pandemic, as one which would “compromise” relief efforts against COVID-19.
Donald Urbanic and Beth Ann Rosica first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 9 versus The Borough of West Chester and Mayor Dianne Herrin. All parties are of West Chester.
“On Oct. 2, 2020, defendant Herrin issued an emergency declaration limiting the number of individuals who could gather in private residences to 10 in number, and requiring that face coverings be worn in the Borough, both inside and outside,” the suit stated.
“The emergency declaration further provided that, ‘When the number of members living in a household exceeds 10, no additional persons shall gather at the property, either indoors or outdoors.’ The emergency declaration further mandates that Borough residents wear a face covering when ‘Coming into contact with any person who is not that person’s family or household member, whether indoors or outdoors, including, but not limited to, contact during gatherings.”
Additionally, the emergency declaration “does not provide an exception from the mask order for residents on private property, or within residential dwellings.”
Herrin’s stated reason for the declarations was that the rate of viral infection in West Chester is particularly high in the 18- to 22-year-old age group, and infections in the Borough are concentrated in the rental residence community.
However, the plaintiffs said this was done without first providing them “prior notice, an opportunity to be heard, or just compensation.”
“On Oct. 11, 2020, defendant Herrin, who was, at the time, a candidate for Pennsylvania State House District 156 Representative, held an outdoor fundraiser for her campaign in the Borough, the attendees of which greatly exceeded the gathering limitations imposed by the emergency declaration,” the suit said.
“Following public criticism of her campaign event, on Oct. 13, 2020, defendant Herrin amended the emergency declaration to permit gatherings of up to 25 individuals at a private residence upon submission of a ‘social gathering special event request’ for her exclusive approval.”
For violation of the emergency declaration, each ‘household’ member and any other individual in attendance at a gathering was subject to a maximum fine of $300.
“Plaintiffs reside within the Borough. The emergency declaration and ordinance, under the color of state law, restrict plaintiffs’ freedom of association and assembly, right to privacy, and right to control their private property, including all other constitutionally protected rights adherent thereto,” according to the suit.
The plaintiffs argue that there is “no reasonable basis upon which the ordinance permits gatherings of greater than 15 individuals upon non-residential properties, while prohibiting a similar gathering on private, residential property” – and “no reasonable bases for capping the maximum number of individuals permitted in a household at 15, insofar as the ordinance makes no distinction between various types of dwellings based upon square footage, or properties based upon acreage.”
“Defendants, through the emergency declaration and the ordinance, have deprived plaintiffs of their constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, and have done so without requisite due process,” per the suit.
“Defendants, through the emergency declaration and the ordinance, have taken plaintiffs’ private property rights for a purportedly public interest, without the payment of just compensation mandated by the Fifth Amendment of the U.S. Constitution.”
Herrin responded to the allegations, calling them both untrue and a political attack.
“My orders (and the emergency ordinance subsequently adopted by Borough Council) were intentionally narrowly tailored to address residences in the Borough, where COVID-19 cases were spiking. All other spaces (commercial, public, etc.) were already subject to safety restrictions by the Governor’s declarations. So, yes, I held an outdoor fundraiser on a large non-residential property in West Chester during which all guidelines and safety measures were practiced to the letter – including temperature checks, masking, and social distancing. In fact, this event was a model of how to conduct ourselves safely during these difficult times,” Herrin said.
“I believe it is important for your readers to understand this accusation was borne out of a political attack championed by my opponent in the race for the PA House. Additionally, COVID-19 case rates in the Borough are currently holding steady; this compares with a tripling of case rates in the broader community of Chester County over the past 30 days. We have also seen a quieting of private, crowded unmasked parties and an increase in mask-wearing, which was also part of this emergency order.”
UPDATE
On Dec. 9, counsel for the Borough and Herrin filed a motion to dismiss the plaintiffs’ request for a preliminary injunction enjoining enforcement of the emergency declarations, arguing the plaintiffs failed to satisfy two essential gateway elements for granting injunctive relief: Prevailing on the merits and suffering irreparable harm.
“Plaintiffs claim without explanation or analysis that, pursuant to the Emergency Ordinance, the Borough violated ‘plaintiffs’ right enshrined under the United States Constitution, [such as the freedoms of assembly and association, rights to privacy and property and guarantees of due process and equal protection],” per the motion.
“Such bald assertions, without more, cannot serve as the basis for the extraordinary remedy of a preliminary injunction. That conclusion is even more evident when the cost of imposing that injunction would very likely be measured in numbers of infected individuals, occupied hospital beds and deaths within the community.”
As for suffering irreparable harm, the defendants argue the plaintiffs failed to show the required “chilling effect” on free expression that would be necessary for such a requested injunction to be granted.
Rather, the defendants conversely claimed that the Court granting such injunctive relief would be detrimental to the Borough’s being able to fight the ongoing COVID-19 pandemic.
“In this moment of maximum public health danger, such injunctive relief (especially relief as amorphous and open-ended as that which plaintiffs seek) would compromise defendants’ ability to respond to the COVID-19 crisis which continues to ravage the Borough, the Commonwealth of Pennsylvania and the entire country,” the motion stated.
For violations of the First, Fourth and Fourteen Amendments to the U.S. Constitution plus the Sunshine Act, the plaintiffs are seeking various reliefs:
• A declaratory judgment that issuance and enforcement of the emergency declaration and amended emergency declaration were unconstitutional for all of the reasons provided, and that the actions of defendant Herrin were unlawful and unconstitutional;
• A declaratory judgment that issuance and enforcement of the ordinance is unconstitutional for all of the reasons provided, and that the actions of the Borough are unlawful and unconstitutional;
• A permanent injunction prohibiting defendants from enforcing the ordinance in the manner and fashion set forth in the ordinance;
• A declaration that the rights of the plaintiffs and the residents of the Borough have been violated by the various actions of the defendants, that defendants are enjoined from engaging in such future violations, and that the emergency declaration, amended emergency declaration, and ordinance were void;
• An award of plaintiffs’ costs and expenses, including reasonable attorneys’ fees under 42 U.S.C. Sections 1983 and 1988, and such other relief as the Court may deem just and necessary under the circumstances.
The plaintiffs are represented by Lindsay A. Dunn of MacElree Harvey, in West Chester.
The defendants are represented by Kristin S. Camp and Michael S. Gill of Buckley Brion McGuire Morris & Sommer, also in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05588
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com