Federal Judge Rules PA COVID Shutdown Orders Unconstitutional – Governor Plans to Appeal

On Monday, September 14, 2020, a federal judge in the Western District of Pennsylvania held that significant portions of Governor Wolf’s COVID-19 related shutdown orders were unconstitutional.  Importantly, the Court’s ruling struck down orders directed at both “First Amendment” activity, and at restricting the business activities of “non-life-sustaining” businesses. The Court recognized that Governor Wolf’s actions were “undertaken with the good intention of addressing a public health emergency.”  Nevertheless, the Court ruled, “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.” 

The Court’s ruling struck down the following restrictions put in place due to the COVID-19 pandemic:

• Gathering Limits:  Governor Wolf had limited indoor gatherings to 25 people and outdoor gatherings to 250 people.  The Court concluded that these limits violated the First Amendment rights to assembly and free speech, specifically in that the order unconstitutionally limited their right to hold campaign gatherings and fundraisers. 
• Stay-at-Home Order:  Governor Wolf ordered nearly the entire Pennsylvania population to remain home during the early days of the COVID-19 pandemic, permitting residents to leave their homes for narrow and specific purposes.  The Court concluded that these orders violated the 14th Amendment by restricting the right to intrastate travel, right to privacy (i.e., “the right be let alone while otherwise acting a lawful manner”), and the “fundamental right to simply be out and about in public.”  The Court held that “[b]road population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.” 
• Business Limitations:  Governor Wolf’s orders directed businesses deemed “non-life-sustaining” to cease in-person operations.  The Court concluded that these orders violated the 14th Amendment by restricting the right “to pursue a chosen occupation.”  In particular, the Court critiqued Governor Wolf for the “shockingly arbitrary” classification of which businesses were “life-sustaining,” as the Court noted that the administration often changed designations as to which industries were “life-sustaining” and to which businesses it granted waiver requests.  Moreover, the Court found it “paradoxical” that products manufactured by businesses subject to the shutdown order were still available for sale at “big box retailers and drug stores” that were deemed “life-sustaining.”  For these reasons, the Court concluded that Governor Wolf’s arbitrary distinctions between “life-sustaining” and “non-life-sustaining” businesses also violated the Equal Protection Clause because this constitutional right “cannot countenance the exercise of such raw authority to make critical determinations where the government could not, at least, enshrine a definition somewhere.”  The Court also ruled that the business shutdown order did not rationally relate to the government’s stated purpose to keep people home and away from each other because the closure of a small store selling one particular item merely sent the customer to a large retailer that was considered “life-sustaining.”    

It is worth noting that the Governor had already lifted many of the orders implicated by the above decision and this decision more so impacts whether the Governor can choose to reinstate these or similar orders in the future.  The Court’s ruling does not impact various orders still in effect, such as the mandatory mask order, the mandatory work-from-home order, and the worker safety and building safety orders. 

This federal ruling against the Wolf administration followed several state court decisions finding that the governor maintains broad discretion in implementing executive orders during a public health emergency, which you can read more about here and here.

Following the Court’s decision, the Wolf Administration announced its intention to seek a stay of the order and appeal the Court’s ruling. 

Given the possibility that Governor Wolf will obtain a stay of the decision, either from the District Court or the Third Circuit, businesses should be patient and adopt a “wait-and-see” attitude.  It is likely that any decision about a stay will happen quickly.  If a stay is denied, then businesses may want to consider -- subject to other health guidelines -- whether they can further scale back any of Pennsylvania’s current restrictions while the Commonwealth pursues its appeal (a process which could take months or years). 

Seyfarth continues to monitor the impact of COVID-19 to Pennsylvania’s business community and will provide further updates as available.