HARRISBURG – The Republican leader of the Pennsylvania Senate, a Republican state representative and a group of parents have seen their efforts to overturn a statewide school mask mandate issued by the administration of Gov. Tom Wolf, bolstered in the Commonwealth Court of Pennsylvania.
The Commonwealth Court ruled 4-1 on Wednesday that an order issued by Secretary of Health Alison Beam, which took effect on Sept. 7 and mandated that students, teachers and support staff in all Pennsylvania public schools, private schools and child care facilities wear face coverings when inside, regardless of vaccination status, was unenforceable.
However, the ruling does not prevent school districts from imposing their own mask mandates.
State Sen. Jake Corman, Rep. Jesse Topper, Calvary Baptist Church, Hillcrest Christian Academy and 10 parents of schoolchildren in three different school districts statewide (Wyomissing Area, Butler Area and Slippery Rock Area) first filed suit in the Commonwealth Court of Pennsylvania in September against the Wolf Administration, including Beam.
The plaintiffs argued that her order was invalid since it did not proceed through the state’s regulatory review process and due to recently-approved amendments to the Pennsylvania Constitution curtailing Wolf’s emergency powers, and the Commonwealth Court agreed with that rationale.
Commonwealth Court Judge Christine Fizzano Cannon authored the ruling on behalf of the state appellate bench.
“We note that we express herein no opinion regarding the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender. Instead, we decide herein only the narrow legal question of whether the acting secretary acted properly in issuing the masking order in the absence of either legislative oversight or a declaration of disaster emergency by the governor,” Fizzano Cannon said.
Cannon said the state’s Disease Control Law does not provide health secretaries “the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures.”
Commonwealth Court Judge Michael H. Wojcik dissented from the majority ruling, opining that Beam’s order was both legal and necessary to repel the spread of an infectious disease.
“The secretary has acted according to the statutory and regulatory authority conferred upon her to protect the vulnerable student population…by the least restrictive and ‘the most efficient and practical means’ available while the lethal COVID-19 pandemic continues to infect and kill the residents of this Commonwealth,” Wojcik said.
Tom King, lead plaintiff counsel from Dillon McCandless King Coulter & Graham, commented on the Court’s decision.
“Today is a good day in Pennsylvania for the rule of law. The Commonwealth Court has upheld the rule of law and has said that no one, including the governor or his health secretary, are above the law,” King said.
“The governor once again tried to circumvent the rule of law in this case. His powers having been taken away by the people in the constitutional amendments that were passed earlier this year, he tried to do this by using the health secretary to this end. We think the Commonwealth Court got this case exactly right.”
King shared that the Wolf administration immediately appealed the Commonwealth Court’s decision to the state Supreme Court, a move which he and his co-counsel will request the latter body to expedite, though King added it’s too early to say exactly when the matter will come before them.
A spokesperson for Wolf confirmed that an appeal is headed to the Supreme Court of Pennsylvania.
“The Secretary of Health’s authority is clearly outlined in existing law. An appeal has been filed. Filing of the appeal immediately stays the Commonwealth Court’s decision. Schools have been notified,” Wolf Administration Press Secretary Elizabeth Rementer said in a statement.
Wolf had initially expressed the need for a universal, statewide order after many of Pennsylvania’s 500 school districts did not impose their own mask mandates and due to several thousand students having tested positive for COVID-19 since the start of the new school year.
But on Monday, Wolf announced that he would return authority over mask mandates to local school districts in January.
Commonwealth Court of Pennsylvania case 294 M.D. 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com