On September 14, 2020, a federal court in Pennsylvania ruled that Governor Tom Wolf's emergency orders relating to the COVID-19 pandemic are unconstitutional under the First and Fourteenth Amendments.1 Plaintiffs-a group of counties, elected public officials and businesses-challenged several of the governor's COVID-19 orders requiring numeric limitations on gatherings of individuals, closures of nonlife-sustaining businesses and directing Pennsylvanians to stay at home. Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania ruled in the plaintiffs' favor, declaring that portions of the challenged orders violate the United States Constitution.
On July 15, 2020, Governor Wolf had ordered several restrictions on nonlife-sustaining businesses, such as restaurants, bars, nightclubs, private catered events and other outdoor events.2 The restrictions provided for a numeric limitation of 25 people for indoor gatherings and 250 people for outdoor gatherings.3 Certain businesses, such as nightclubs, were ordered to cease operations while others, such as restaurants, had capacity limits placed on them should they continue to operate.4 The governor also continued to place in effect a stay-at-home order.
Judge Stickman struck down significant portions of the governor's orders on the grounds that they violated the United States Constitution. In so doing, he first implicitly admonished the United States Supreme Court by explicitly rejecting its longstanding precedent that states are afforded deference in promulgating regulations during public health emergencies. The Supreme Court has never disrupted this deferential standard, outright or by implication. He then determined that a heightened level of review of these regulations is required.5 He parted ways with another federal Pennsylvania district court, as well as the Pennsylvania Supreme Court, applying that longstanding deferential standard to COVID-19 emergency orders.6
The court then concluded that the numerical limitations on gatherings violated the First Amendment rights to assembly and free speech.7 As to the stay-at-home and nonlife-sustaining business closure orders, the court determined that they were unconstitutional by violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Impact of Court Decision
There are several implications of the court's decision:
First, at issues were only state, and not local, orders. Accordingly, Judge Stickman's decision has no bearing on counties or cities that have or continue to implement their own public health policies and regulations given their inherent police power. Accordingly, those regulations, including but not limited to Philadelphia's, should be unaffected.
Second, only three aspects of the state orders-the stay-at-home mandate, the closure and restrictions of certain nonlife-sustaining businesses and the gathering capacity limitation-were deemed unconstitutional. Other than these aspects, the governor's orders, including those specific to employers and schools, remain, at least for now, in full force and effect. More specifically, employers still must comply with the orders' other safety precautions, such as the wearing of masks, engaging in social distancing, the cleaning of hands and workplaces and working remotely except when not possible. Accordingly, businesses should seek counsel before implementing any changes to their protocols as to how this ruling specifically affects them.
Third, as previously referenced in a general way, the United States Court for the Middle District of Pennsylvania in May 2020 refused to grant a temporary restraining order to block the implementation of the governor's COVID-19 emergency orders.8 Although that court did not rule as to the merits of the plaintiff's constitutional challenges to the orders, in denying the request for a temporary restraining order, the court determined that the plaintiffs were unlikely to succeed on the merits of their claims. Accordingly, possible tension might arise should the Middle District disagree with Judge Stickman's ruling, and thus the impact of his ruling would call into question its applicability throughout the commonwealth. Governor Wolf plans to appeal Judge Stickman's decision to the United States Court of Appeals for the Third Circuit.
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Footnotes
1 County of Butler, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-677 (W.D. Pa. Sept. 14, 2020).
2 Orders of the Governor of the Commonwealth of Pennsylvania Directing Mitigation Measures, July 15, 2020.
3 Id.
4 Id.
5 County of Butler, No. 2:20-cv-677, at 21 (rejecting Jacobson v. Massachusetts, 197 U.S. 11 (1905))
6 Id. at 21 n.13 (distinguishing William Benner, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-775 (M.D. Pa. May 21, 2020) and Friends of Danny DeVito, et al. v. Tom Wolf, et al., 227 A.3d 872 (Pa. 2020)).
7 Id. at 32.
8 William Benner, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-775 (M.D. Pa. May 21, 2020).
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