State-imposed shutdown orders that required people to stay home and placed limits on public gatherings aimed at halting the spread of COVID-19 in Pennsylvania were “well-intentioned” but unconstitutional, a federal court in Pittsburgh ruled Monday.
“Good intentions toward a laudable end are not enough to uphold governmental action against a constitutional challenge,” U.S. District Judge William S. Stickman IV wrote in a 66-page ruling that said Gov. Tom Wolf’s actions violated constitutional guarantees of the rights to free assembly, due process and equal protection.
As the pandemic hit Pennsylvania in March, Wolf and Health Secretary Dr. Rachel Levine ordered nonessential businesses to close, imposed stay-at-home orders and limited public gatherings in a bid to disrupt transmission of the deadly airborne virus that has killed more than 7,800 residents and sickened more than 145,000.
Wolf, a Democrat, has since lifted many of the restrictions, allowing businesses to reopen and canceling a statewide stay-at-home order.
The ruling means that current restrictions, including ones that limit the size of indoor gatherings to 25 people and outdoor gatherings to 250 people, can’t be enforced, according to attorney Thomas W. King III, who represented the plaintiffs.
“It’s really 100% in our favor. The court found in all respects that the orders issued by the governor and the secretary of health were unconstitutional. What it means is they can’t do it again, and they should not have done it in the past,” King said.
The ruling was praised by state Republican leaders and small-business associations. The National Federation of Independent Business, which represents 13,000 small businesses in Pennsylvania, issued a statement reflecting on what the association deemed contradictory state directives that allowed big-box stores to stay open while small businesses had to remain closed early in the pandemic.
In his opinion, Stickman wrote that the case was about weighing the government’s power to infringe on people’s rights in order to protect the public. He noted that the greatest threats to constitutional liberties can arise when the intent is good, especially in emergencies.
“In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situation — may persist long after immediate danger has passed,” wrote Stickman, an appointee of President Donald Trump.
Wolf to appeal
Wolf spokesperson Lyndsay Kensinger said the administration is disappointed with the decision and will ask Stickman to allow restrictions to remain in place while it appeals.
Courts had consistently rejected challenges to Wolf’s power to order businesses to close during the pandemic, and many other governors, Republican and Democrat, undertook similar measures as the virus spread across the country.
“The actions taken by the administration were mirrored by governors across the country and saved, and continue to save lives in the absence of federal action,” Kensinger said.
She added that the decision is especially worrying as Pennsylvania and other states face the possible resurgence of COVID-19 and the flu in the fall and winter.
The ruling applies only to limits on the number of people at indoor and outdoor gatherings as well as the stay-at-home and business-closure orders that were lifted this summer. It does not affect any other mitigation orders announced in July, including mandatory telework, mask-wearing, worker safety and building safety orders.
Allentown liquor law attorney Ted Zeller said the ruling keeps intact most of the restrictions on Pennsylvania’s bars and restaurants. That includes the upcoming change allowing restaurants that self-certify coronavirus safety efforts to operate at 50% indoor capacity, up from the current 25%. Those changes, which go into effect Sept. 21, also stop alcohol sales at 10 p.m.
What the ruling does change, however, is in regards to gatherings, such as a wedding at a restaurant or hotel with a liquor license. Those venues will now be able to have indoor gatherings that exceed 25 people, a restriction that had stifled an important revenue stream for many hospitality businesses.
Challenges from businesses
The federal case was filed by four counties — Washington, Greene, Fayette and Butler — and plaintiffs included hair salons, drive-in movie theaters, a farmers market vendor, a horse trainer and several Republican officeholders who sued as individuals.
“No one diminished the fact that there is a disease. We didn’t get into an argument about the science,” King said. “We did challenge the things that the business community and the people in our counties found most offensive.”
King said the Wolf administration and Health Department had the opportunity to present evidence but did not call any medical professionals as witnesses. The state’s primary witnesses were deputy chiefs of staff from the governor’s office and the Department of Community and Economic Development, which oversaw the process for businesses to apply for waivers to the closure order, King said.
King said the plaintiffs’ case also highlighted what he called a double standard in Wolf’s attendance of a protest and Health Secretary Dr. Rachel Levine’s secret agreement to allow a central Pennsylvania car show with tens of thousands of attendees to go on.
“The issue is how do you tell a church group they can’t have more than 250 people, how can you tell President Trump he can’t have more than 250 people?” King said.
He added that nothing in the order requires people to do things they believe are unsafe.
“It’s all about the American way of life and people being individually responsible for their actions,” King said.
Under the “red phase” of Wolf’s three-phase plan, stay-at-home orders were imposed, only “life-sustaining” businesses such as grocery stores were allowed to be open, and schools and child care facilities were closed. Large gatherings were prohibited, restaurants and bars were limited to carry-out and delivery, and travel was discouraged except for life-sustaining purposes.
Stickman wrote that decisions as to which businesses were “life-sustaining” and which were not was an “arbitrary, ad hoc process.”
The stay-at-home and business closure orders were eased in the yellow and green phases, but the outdoor gathering limit of 250 people prompted large events, such as Musikfest and the Allentown Fair, to cancel their events.
Some counties, like Allegheny and Philadelphia, have their own pandemic restrictions. King said Monday he thinks the judge’s ruling invalidates those, as well.
Pennsylvania Speaker of the House Bryan Cutler of Lancaster County and House Majority Leader Kerry Benninghoff of Centre County, both Republicans, issued a joint statement praising the ruling.
“For the millions of unemployed Pennsylvanians, the thousands of small business owners that have seen their livelihoods permanently ended, and all those looking for some relief from these unilaterally imposed, inconsistent and contradictory shutdown orders, this opinion offers some form of hope that a return to normalcy might be on the horizon,” they wrote.
In the statement, the lawmakers said the ruling confirmed their argument that Wolf’s use of emergency authority is unconstitutional, and urged the governor to work with the General Assembly to develop a plan that keeps Pennsylvanians safe but does not penalize them.
The Associated Press contributed to this story.
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