HARRISBURG – A few weeks after throwing out the statewide school mask mandate issued by now-former Secretary of Health Alison Beam in September, the Supreme Court of Pennsylvania released its rationale for doing so.
On Dec. 10, the state’s high court had issued a brief per curiam order aligning with a similar ruling from the Commonwealth Court of Pennsylvania in November, and dealing a legal blow to the administration of Gov. Tom Wolf by dismissing the mask mandate.
The state Supreme Court explained that a related opinion on the matter would follow, which was then issued on Dec. 23 and authored by Justice David N. Wecht. It was also noted that Justice Thomas G. Saylor did not participate in the decision.
Republican gubernatorial candidate and Senate President pro tempore 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 in September against the Wolf Administration, including Beam.
The plaintiffs argued that her mask mandate 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.
The Commonwealth Court had ruled on Nov. 10 that an order issued by Beam, which took effect in September 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, five justices from the state Supreme Court had issued a per curiam order on Nov. 30 that the mask mandate would instead be continued until the state’s high court heard oral arguments in the case. Supreme Court of Pennsylvania Justice Sallie Updyke Mundy dissented from that Nov. 30 order, while Saylor again did not participate.
During oral arguments, while Senior Deputy Attorney General Sean A. Kirkpatrick opined that Beam possessed authority to impose the school mask mandate through a regulation which seeks to manage infectious diseases, as a form of “modified quarantine” – plaintiff counsel Thomas Breth countered that the Wolf Administration had relied upon language calling for “any other disease control measure” to justify Beam’s order, and not the argument of “modified quarantine.”
Breth said their issue was caused by the state going outside the regulatory process.
The state Supreme Court’s view coincided with that of Breth and his co-counsel.
“Absent a gubernatorial disaster emergency declaration suspending the framework of laws governing agency rulemaking in Pennsylvania, the Department was obligated to follow the procedures set forth in the Regulatory Review Act, the Commonwealth Documents Law and the Commonwealth Attorneys Act before promulgating a new disease control measure with the force of law. Because the Secretary circumvented that process, her order was void ab initio,” Wecht said.
“It is not our prerogative to substitute our views for those of the policy-making branches of our Commonwealth’s government, especially on an issue as fraught with uncertainty as how best to respond to an evolving public health emergency. We leave that solemn duty to the people’s elected representatives and their lawful designees. Our role in this case is limited to deciding whether it was within the Acting Secretary of Health’s authority under existing laws and regulations to issue a statewide school mask mandate. Respectfully, we conclude that it was not.”
A spokesperson for Wolf recently issued a statement on the state Supreme Court ruling.
“The administration’s top priority from the beginning of this pandemic has been and remains protecting public health and safety, including students and staff, to ensure in-person learning continues. The outcome is extremely disappointing. That said, the administration recognizes that many school districts want to ensure a safe and healthy learning environment for students and staff, and we are hopeful they will make appropriate mitigation decisions moving forward,” Wolf Administration Press Secretary Elizabeth Rementer said.
“The administration urges school districts to prioritize the health and safety of their students and staff when making mitigation decisions. Masking is a proven and simple way to keep kids in school without interruption and participate in sports and other extra-curricular activities. Universal masking in schools, which the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics recommend, reduces the risk that entire classrooms will need to quarantine due to a positive COVID-19 case.”
The Wolf Administration urged all eligible Pennsylvanians to receive a COVID-19 vaccine and booster shot, and to vaccinate children ages 5 and older.
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.
Wolf announced in November that he would return authority over mask mandates to local school districts this month, and it remains to be seen whether they have the power to enforce mask mandates or not.
Supreme Court of Pennsylvania case 83 MAP 2021
Commonwealth Court of Pennsylvania case 294 M.D. 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com