PHILADELPHIA – A federal appeals court has overturned a lower court ruling which eliminated Gov. Tom Wolf’s unprecedented COVID-19 emergency restrictions, finding the issue to be moot because not only have those restrictions expired in the interim, but voters statewide have also since amended the state constitution to roll back a governor’s range of emergency powers.
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.
Meanwhile, 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.
Third Circuit Finds Constitutionality Issues Moot, Overturns Lower Court
In the wake of statewide stay-at-home orders, limits on in-person gatherings and business closures expiring – not to mention the recent decision of Pennsylvania voters to limit a governor’s emergency powers – the Third Circuit ruled there was no relief it could grant in this matter and the case was deemed moot.
Shwartz authored the Court’s order.
“A plaintiff bears the burden to show that the ‘capable of repetition yet evading review’ exception applies. Plaintiffs have not carried that burden. Plaintiffs have pointed only to the fact that the Secretary of Health still claims the power to issue orders of the sort before us now. That observation, however, does not satisfy both elements of the test,” Shwartz said.
“The executive orders before us were the subject of a full evidentiary record developed and considered on an expedited basis. Hence, they were not of too short a life to be reviewed. Nor can we say that there is a reasonable expectation that the same complaining parties will be subject to the same orders again. Defendants have represented that the public health landscape has so fundamentally changed that ‘what we were facing in this case is not what you would be facing going forward,’ and, though public health authorities continue to provide new guidance, Plaintiffs here have given us little reason to disbelieve that representation. Thus, no exception to mootness applies, and we will dismiss the appeal.”
In a separate, concurring ruling, Jordan remarked that the question of mootness is “not a simple or easy one.”
“The Governor’s emergency powers have been reduced and the immediate sense of emergency has abated to a large degree, but both in reported public statements and in argument before us, ‘The Wolf administration maintains that dissolving the disaster emergency does not affect a health secretary’s disease-prevention authority to issue mask-wearing and stay-at-home orders or shut down schools and nonessential businesses. Whether that position is legally sound is not before us and I make no comment on it,” Jordan said.
“The point is that the defendants-appellants in this case – Gov. Wolf and the Commonwealth’s Secretary of Health – have taken that position, so the possibility of future executive orders of the type challenged here is not fanciful. But such orders would have to be just that – in the future – because it is undisputed that the challenged orders have all expired, and a legal remedy aimed at those particular orders is, by definition, impossible. The case is thus moot, unless one of the two well-known exceptions to mootness applies.”
The first exception, voluntary cessation, did not apply, Jordan said, as the plaintiffs conceded during oral argument that it was not applicable. The other exception, “behavior that is capable of repetition yet evading review”, also did not apply, according to Jordan.
“The plaintiffs insist that this case is not moot because the orders at issue are indeed capable of repetition yet evading review, but we have only their speculation that the same kind of heavily restrictive orders will be issued once more. Given the recent, wide-spread reporting that the Delta variant of the COVID-19 virus is causing increased concern among many public health authorities, the plaintiffs’ position ought not be rejected out of hand, and it has not been,” Jordan said.
“Nevertheless, as noted in our opinion today, we have been given little reason to doubt the representations by the governor and secretary that the public health circumstances have changed so dramatically since the time the challenged orders were entered that there is no reasonable expectation that they will be re-imposed. So the case is over,” Jordan said.
Jordan concluded that the Third Circuit’s decision “should not be read as reflecting a lack of appreciation for the feelings generated by this case, nor as indicating a failure to understand that there are real-world consequences flowing from governmental responses to the unprecedented (at least in our lifetime) pandemic we are yet working our way through.”
“We are not through with COVID, and the unexpected may yet occur, but, under the rules governing our jurisdiction, considering the merits of this appeal or leaving the District Court’s decision extant would be a mistake. I therefore concur in the opinion and judgment of the Court,” Jordan stated.
As referenced by the plaintiffs, 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.
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