PA Western Dist. Court Rules Against Gov. Wolf - Analysis
Sept. 16, 2020
From: Jeff Bukowski <firstname.lastname@example.org>
Sent: Monday, September 14, 2020 4:39 PM
Subject: County of Berks -- Representation
We wanted to alert you to the attached breaking news article and the 66-page legal opinion and declaratory judgment order entered today by United States District Judge William S. Stickman IV in the W.D. Pa. action filed by Butler County and other plaintiffs against Governor Wolf and Secretary Levine (“Defendants”). The Court declared unconstitutional certain aspects of Defendants’ various emergency orders.
A large portion of the opinion is dedicated to determining whether considering the constitutionality of the various orders was moot based on the dormant status of many of Defendants’ orders (the Court ruled it was not); and what level of constitutional scrutiny to apply to the various orders (rational basis test, intermediate scrutiny/balancing test, or strict scrutiny test). The Court rejected the Defendants’ request to apply an extremely lenient and deferential standard arguably applicable to emergency situations relating to health and safety, see Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905) (affirming the government’s right to prosecute individual for refusing to comply with the City of Cambridge’s vaccination mandate). Quoting the closing of the Jacobson opinion, Judge Stickman concluded that, even under the plain language of that case, public health measures may be found to violate the Constitution.
As you will see in the Order and supporting opinion, the Court held and declared (1): the congregate gathering limits imposed by Defendants’ mitigation orders violate the right of assembly enshrined in the First Amendment (applying intermediate scrutiny); (2) the stay-at-home and business closure components of Defendants’ orders violate the Plaintiffs’ substantive due process rights under the Due Process Clause of the Fourteenth Amendment (applying the highest-level strict scrutiny test to the stay-at-home orders and the lowest-level rational basis test to the “non-essential business” shutdown orders); and (3) the business closure components of Defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment (applying the rational basis test).
The applicable standard to be applied was the subject of our prior discussion and analysis, and as we discussed, the decision of what standard to apply was likely to affect the outcome of the case. A significant fact affecting the Court’s decision to engage in constitutional review of Defendants’ orders was the fact that the Governor was capable of extending his emergency declaration beyond the initial 90-day period and could simply veto the legislature’s attempt to declare an end to the emergency, which he did and which was affirmed by the Pa. Supreme Court. Thus, the Court was mindful of exercising constitutional scrutiny over an executive who is capable, under his power to declare and indefinitely extend a disaster emergency, of imposing whatever restrictions he wants absent a veto-proof super-majority of the legislature.
In reaching its conclusion on the business shutdown orders, the Court compared the impact on smaller specialty businesses with big box stores whose product offerings were broader, and found that the same products the small mom & pop businesses were precluded from selling could be purchased as arbitrarily determined “life-sustaining” big box retailers and drug stores.
Finally, the Court held that the county plaintiffs did not have standing to pursue the constitutional claims asserted in the complaint because counties do not possess constitutional rights; therefore, the Order dismissed those plaintiffs from the case. This is consistent with our prior discussion, and Berks County was prudent in not seeking to join the litigation or pursuing its own separate legal claims based on the shutdown orders.
Please let us know if you have any questions or would like to discuss this opinion and Order.
Jeffrey D. Bukowski
Smith | Bukowski