PHILADELPHIA – An attorney representing Butler County, a county which contested the legality of Gov. Tom Wolf’s COVID-19 emergency measures before the U.S. Court of Appeals for the Third Circuit, agrees with a federal judge that state officials should never again enact policies which violate the constitutional rights of Pennsylvanians.
Last year, Butler County, Greene County and Washington County joined four members of the Pennsylvania House of Representatives and others in filing suit against Gov. Tom Wolf and now-former Secretary of Health Dr. Rachel Levine, arguing those officials had exceeded their governmental authority in authorizing stay-at-home and business closure orders during the COVID-19 pandemic.
The orders proved controversial to say the least: The U.S. Supreme Court ruled it would not take up the battle over Pennsylvania’s business closure orders in May 2020, and later that summer, the Supreme Court of Pennsylvania threw out a case from Republican lawmakers who wanted to end Wolf’s emergency declaration.
Last September, U.S. District Court for the Western District of Pennsylvania Judge William S. Stickman IV 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 former 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 First Amendment.”
Stickman further concluded that the stay-at-home and business closure orders enacted by Wolf and Levine were also unconstitutional, and 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 Wolf administration 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.
In May’s primary election, Pennsylvania voters opted to amend the state constitution and limit emergency declaration powers for Wolf and all future state governors.
Now, the language of the Pennsylvania Constitution limits emergency declarations to 21 days without legislative approval and permits the state legislature to end any emergency with a simple majority vote.
The move was seen by some as a referendum from voters on Wolf’s broad and unprecedented use of executive emergency declaration powers to combat the COVID-19 pandemic.
Third Circuit judges Michael A. Chagares, Kent A. Jordan and Patty Shwartz heard arguments in Butler County Et.Al v. Wolf Et.Al on July 22.
Attorney for Butler County Agrees That Shutdown Orders Infringed on Pennsylvanians’ Rights
Thomas W. King III of Dillon McCandless King Coulter & Graham, which represented Butler County in the suit, defended the substance of Stickman’s opinion during those arguments before the Third Circuit court last week.
“Much of the case at this point centers on whether or not a case is moot, because of the constitutional amendments in Pennsylvania that have reined in the powers of the governor. But, we made the point to the [Third Circuit] Court that the powers of the secretary of health have not been reined in, and that the secretary of health could in fact try to impose orders similar to those which we found offensive here from the governor,” King said.
“In the meantime, last Friday, the U.S. Court of Appeals for the Ninth Circuit, after our argument on Thursday, entered an order against Gov. [Gavin] Newsom in California. A large part of the discussion of mootness in that case is relevant to the argument we just had in Pennsylvania.”
In the Ninth Circuit, that court found Newsom’s orders regarding the closure of private schools and prohibition of in-person teaching in the state of California to be unconstitutional.
King added that he and his co-counsel would be filing for additional authority in the matter at hand, based on the recent decision from the Ninth Circuit.
“Both the Ninth Circuit [decision] and our argument on behalf of the plaintiffs in the Third Circuit relate back to a case called Roman Catholic Diocese v. Cuomo, which is a recent U.S. Supreme Court case. In that case, the same argument was made that because [New York Gov. Andrew] Cuomo’s orders were about to expire, the Court should not hear the case because it’s moot,” King stated.
“The U.S. Supreme Court, and in particular, Justice [Neil] Gorsuch said, ‘No, we’re not going to do that, because these orders are capable of being repeated again. We’re going to decide now whether you can repeat them, no matter whether they’re just about to run out or whether they have run out. We know that they could be repeated again in the future, so we’re going to decide whether they’re constitutional or not.”
King said that his clients never want the emergency COVID-19 orders instituted by Wolf and former secretary Levine to be repeated in Pennsylvania, and never want to see citizens locked down in their homes again.
“In particular, these people [affected by the orders] were healthy people. These aren’t necessarily people who have even been exposed to COVID, we were all locked down, regardless. We never want to see that happen,” King said.
“We never want to see businesses indiscriminately shut down, we never want to see the terrible methods that were used by the governor and his cabinet officials in picking winners and losers in Pennsylvania, we never want to see political people prevented from having meetings with their constituents. Which in this case, even went so far as to prevent President Trump from coming to Gettysburg to accept the nomination of the Republican Party in 2020. Those are things that are fundamental rights of Americans.”
King concluded that the case remains of key import, as Wolf has stated publicly that despite Pennsylvania voters’ recent choice to roll back his emergency powers, his Acting Secretary of Health Alison Beam retains the power to reinstitute such orders if COVID-19 cases were to rise once again.
“I take him at his word, and for that reason, I’m hopeful that the Third Circuit Court would not order that this case is moot and will actually uphold Judge Stickman’s findings in Pittsburgh. The record in this case is quite clear that the way this was done, and what was done, in Harrisburg violated the Constitution of the United States in a number of respects,” King said.
U.S. Court of Appeals for the Third Circuit case 20-2936
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