On September 22, 2020, federal judge, William S. Stickman, IV denied Governor Tom Wolf’s motion requesting a stay of the judge’s ruling declaring certain coronavirus mandates unconstitutional until after an appeal is heard. Judge Stickman declared that Governor Wolf and the defendants, including Pennsylvania Secretary of Health, Rachel Levine, failed to meet the threshold requirement of showing that “imminent and irreparable harm will occur” if the ruling is not stayed until an appeal is heard. The Court was not convinced that more restrictive means were necessary to curb the spread of coronavirus than the moderate restrictions already in place such as mask wearing, social distancing, and telework options while the appeal is adjudicated.
This order comes on the heels of a monumental decision by Judge Stickman who was appointed to the U.S. District Court for the Western District of Pennsylvania in 2019. On September 14, 2020, the Judge declared the Governor’s orders regarding capacity limits on indoor and outdoor gatherings, the closure of non-life sustaining businesses, and stay-at-home orders unconstitutional. Earlier this year, several Pennsylvania State Representatives, businesses, individuals, and the counties of Butler, Greene, Washington, and Fayette filed a lawsuit against Governor Wolf and his administration, Secretary Levine, and others arguing that such far-reaching restrictions were unconstitutional in County of Butler, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-677.
Ultimately, the Court concluded: “(1) that the congregate gathering limits imposed by Defendants’ mitigation orders violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of Defendants’ orders violate the Due Process Clause of the Fourteenth Amendment; and (3) that the business closure components of Defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.” Id. at *3.
In particular, the Court held the imposed limitations on events and gatherings of 25 persons indoors and 250 persons outdoors are unconstitutional in violation of the rights of assembly and free speech in the First Amendment. The Court found the mandates failed the intermediate scrutiny test for content-neutral restrictions because they are not narrowly tailored so as to not burden substantially more speech than is necessary to further the government’s interest of protecting Pennsylvanians from the spread of the novel coronavirus. Governor Wolf failed to establish sufficient evidence supporting his position that specific congregate limits were necessary to achieve the stated goal of limiting the impact of the virus. The Court found the Governor’s “one-size-fits-all” approach to all counties (despite major demographic, population density, resource, and affected area differences) to be too broad.
Further, the Court opined the Governor’s orders closing non-life sustaining businesses and stay-at-home orders violated the Plaintiffs’ substantive due process rights to intrastate travel, the freedom of movement, the right to work and earn a living, and the right of association, as being overbroad and far exceeding government necessity and authority. The restriction of freedom of movement of individuals was unprecedented and unsupported by any legal jurisprudence the Court reviewed. The Court also found the Governor’s determination as to which businesses were life-sustaining and non-life sustaining was not based on reliable data or any previously ascertained definitions in any statutes or regulations. The Court found Governor Wolf’s administration simply used their “common sense judgment” to classify businesses as life-sustaining or non-life sustaining, which was highly arbitrary. These orders failed the strict scrutiny standard as arbitrary and not narrowly tailored and were struck down as unconstitutional.
Finally, the Court held the orders closing non-life sustaining businesses violated the Equal Protection Clause of the Fourteenth Amendment because the small business Plaintiffs are similarly situated to the larger retail stores, such as Walmart and Lowes, who were permitted to remain open during the pandemic. They are all retailers selling essentially the same goods and yet, the Court found paradoxically that the larger retailers were the ones permitted to remain open, despite having the highest occupancy limits. The Court held the arbitrary classification of similarly situated businesses into the categories of life-sustaining and non-life sustaining failed to pass the rational basis standard by not being rationally related to the Governor’s stated purpose of protecting Pennsylvanians from the spread of the virus.
The Court closed with the following powerful remarks:
The Court closes this Opinion as it began, by recognizing that Defendants’ actions at issue here were undertaken with the good intention of addressing a public health emergency. 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. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.
Id. at *65-66.
Importantly, what does all of this mean to businesses and individuals in Pennsylvania? Many may think the impact of this decision is minimized or moot since Governor Wolf has eased restrictions over the last few months. However, it is worth reiterating that Governor Wolf’s orders are open-ended with no definitive termination date, and these orders are merely suspended, not rescinded. This decision seems intended to preclude Governor Wolf from reinstating these particular restrictions on gatherings, business closures, and lockdown orders, or issuing similar orders in the future, whether in subsequent phases of this pandemic or in future pandemic situations. In addition, the court opines that there should no longer be classifications of businesses as life-sustaining or non-life sustaining, or different treatment of businesses based on such classifications, unless and until finite definitions are more formally vetted and adopted by the Legislature.
Notably, other mandates by Governor Wolf were not challenged and remain in place, particularly the less burdensome restrictions such as mask wearing, social distancing, and telework requirements. Businesses and individuals are encouraged to continue following CDC guidelines and the orders issued by Governor Wolf and the Pennsylvania Department of Health that remain in tact related to safe business practices, work safety orders, building safety orders, and proper sanitization and cleaning practices. Further, the decision does not impact the current occupancy restrictions in place depending on the type of business (75% / 50% / 25%), so businesses should continue to operate with those restrictions until further notice.
Governor Wolf’s office recently confirmed the filing of an appeal of the Western District’s decision to the U.S. Court of Appeals for the Third Circuit. It remains to be seen whether the Third Circuit will issue a stay of the Western District’s ruling until after the appeal is adjudicated, but unless and until that happens, businesses and individuals should consult with legal counsel to seek guidance on how to operate under the guidance set forth in the Western District’s decision in conjunction with recommendations and guidance from state and federal authorities.
For questions or legal assistance regarding how this court decision and the Governor’s mandates affect you or your business, please contact the author of this article, Catherine Loeffler, at [email protected] or a member of Houston Harbaugh’s COVID-19 Law Response Group.
 The Court dismissed the Counties as parties for lack of standing, as they are creatures of the State and cannot assert constitutional violations against the State from which they are created for violating rights they do not possess.