PHILADELPHIA – The Borough of West Chester has won dismissal of a lawsuit filed against the municipality and its former mayor, which challenged the constitutionality of their emergency declaration orders issued during the coronavirus pandemic.
Donald Urbanic and Beth Ann Rosica first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 9, 2020 versus The Borough of West Chester and now-former Mayor Dianne Herrin. All parties are of West Chester.
(Current Mayor Jordan Norley has since been substituted as a party in the case.)
“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 at the time, 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.”
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.
After a six-month break in proceedings, U.S. District Court for the Eastern District of Pennsylvania Judge Nitza I. Quiñones Alejandro ordered June 8 that the parties were to each file by June 18 a supplemental brief, addressing whether the instant case should be dismissed as moot. Both sides did so on June 21.
“The mayoral emergency declaration and the emergency ordinance expired on their own terms and without any further action by the mayor or borough council. Importantly, neither the mayor nor borough council retracted or repealed the regulations about which plaintiffs here complain,” the Borough’s brief stated, in part.
“There does not appear to be any reasonable likelihood that the mayor of borough council would again implement the regulations about which plaintiffs complain. Quite simply, there is nothing further for this Court to decide in this case, and the Court should dismiss the action as moot. If, against all hopes and prayers and the ongoing success of public vaccination programs, the mayor or borough council in the future see a need to implement COVID-related regulations about which plaintiffs then complain, the doors of this Court will remain open to adjudicate those hypothetical claims.”
However, the plaintiffs feel that the issue is far from resolved.
“Defendants appear to take the position that this case is moot because the emergency ordinance expired on Dec. 20, 2020, and the illegal restrictions embodied therein no longer afflict plaintiffs or the residents of the Borough. In other words, defendants believe that because the unconstitutional mandates have expired, the question of the legality of the emergency ordinance is settled. This position is inconsistent with well settled axioms of law,” the plaintiffs’ brief said.
“Defendants have made no claim, nor have they offered any qualifying proffer, that they will not revert to the unconstitutional policies of the emergency ordinance, or any such similar ordinance with illegal mandates and penalties.”
That same point was the crux of the argument made by Butler County in its litigation against Gov. Tom Wolf, which recently saw arguments before the U.S. Court of Appeals for the Third Circuit.
UPDATE
Quiñones Alejandro granted the Borough’s motion and ordered the case be dismissed on Aug. 4, finding that the issues complained of were indeed moot.
“This Court finds that the circumstances of the expiration of the emergency orders meet this mootness standard because the cessation of the emergency orders occurred by their ‘own terms,’ with expiration dates set by statute. There is nothing to suggest, nor do plaintiffs argue, that defendants ended the emergency orders in response to this litigation,” Quiñones Alejandro ruled.
“Notably, more than six months have passed since the expiration of the emergency ordinance, with no governmental action taken to renew either the emergency declaration or the emergency ordinance. When considering the totality of circumstances, including the expiration of the emergency orders with no further action from defendants, there is no reasonable expectation that the alleged wrongful behavior will reoccur, as plaintiffs contend. Based on these considerations, this Court finds that the issues presented here are moot.”
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