Pennsylvania Supreme Court Rejects Constitutional and Statutory Challenges to Business Shutdown Order

 

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The campaign of a political candidate and several small businesses jointly challenged COVID-19-related governmental measures, asserting that the Governor of Pennsylvania exceeded his statutory powers, and violated various provisions of the US and Pennsylvania Constitutions, by issuing an emergency order shutting down “non-life-sustaining” businesses in the state. On April 13, 2020, in a 4-3 decision, the Pennsylvania Supreme Court rejected the specific arguments raised by the challengers and upheld the governor’s order.[1]

The statutory challenge

As alleged in the case, the governor’s statutory authority to issue the emergency order was based upon the Pennsylvania Emergency Code, which allows the governor to issue emergency orders relating to, among other things, “natural disasters.” The challengers first argued that the definition of “natural disasters” did not include a viral pandemic because the statute listed hurricanes, tornadoes, storms, floods, earthquakes, fires, explosions, etc., and the definition’s catch-all for “other catastrophe[s]” was limited by the preceding examples.[2]

The Pennsylvania Supreme Court rejected this argument, finding that although the statutory examples lacked causal commonality—some were weather-related (e.g., hurricane) and others were not (e.g., earthquake)—there was a common thread in that they all involve substantial damage, hardship, suffering, and potential loss of life, which the court found applied to the COVID-19 pandemic as well.[3] The Court also held that the catch-all for “other catastrophe[s]” evidenced the legislature’s intent to expand, rather than limit, the definition of “natural disaster.”[4]

The challengers also argued that the governor exceeded his powers by closing only “non-life-sustaining businesses.” The Court noted that while there may be strong arguments that keeping businesses open would benefit the public by maintaining “the free flow of business,” such policy decisions are not for the courts to make.[5] The Court also recognized “the serious and significant economic impact” of the order, but held that it was not “unduly oppressive” given the need to “protect[] the health and lives of 12.8 million Pennsylvania citizens,” which is “the sine qua non of a proper exercise of police power.”[6]

The constitutional challenges

The challengers also raised five constitutional arguments, asserting violations of separation of powers, the Takings Clause, procedural due process, equal protection, and the First Amendment. The Court ruled against the challengers’ specific arguments.

Separation of powers

The challengers’ separation of powers argument was simply that executive orders are limited to ceremonial proclamations, directives to executive branch officials, and interpretation of statutory or other law.[7] The Court rejected this argument, noting that the Emergency Code discussed above expressly empowers the governor to promulgate the type of order at-issue here.[8] Indeed, the challengers’ own statutory challenge was aimed at a misuse of this authority.

Takings Clause

With respect to the Takings Clause, the challengers argued that the shutdown of their businesses effectively was a taking of private property for public use without just compensation because the order deprived them of all economically beneficial or productive use of their property.[9] The Court held that if a governmental action has only “a temporary impact ... no categorical taking ha[s] occurred.”[10] The Court reasoned that, although “the duration of COVID-19 as a natural disaster is currently unknown,” the governor’s order was limited under the terms of the Emergency Code to 90 days, absent renewal by the Pennsylvania legislature, which can terminate the governor’s order at any time.[11] Based on this, the court found that the governor’s order did not presently constitute a taking.

Procedural due process

The challengers next argued that the governor’s order violated their rights to procedural due process because the governor listed which businesses were “non-life-sustaining” without giving the challengers notice and an opportunity to be heard before the order went into effect. The challengers further contended that, although the governor’s order provides a process by which businesses can obtain a waiver from the shutdown, that waiver process was insufficient because the governor did not outline the applicable standards of review, did not provide an opportunity to present or cross-examine witnesses, and did not provide for an appeal from a denial of a waiver.[12]

The Court held that given the “rapid spread of COVID-19 and the urgent need to act quickly to protect the citizens of the Commonwealth from sickness and death,” the governor was not able to provide notice prior to issuing the order, as doing so would have caused an “untenable” delay under the circumstances.[13] The Court then held that the challengers were entitled to post-order due process rights, but that the governor’s waiver procedure complied with due process.[14] Again, the Court found it “significant” that the impacts on the challengers were only “temporary,” meaning that the challengers’ interests, although seriously impacted, did not outweigh the public interest in mitigating the pandemic quickly while minimizing administrative burdens in connection with that effort.[15] Importantly, however, the Court recognized the challengers’ argument regarding the order’s lack of transparency with respect to why some businesses were granted waivers and others were not, but ultimately held that “a lack of transparency, while perhaps a sign of lack of good government practices, does not constitute a violation of procedural due process.”[16]

Equal Protection

The political campaign asserted that the governor’s order violated the Equal Protection Clause because it forced the campaign to close its offices, while allowing the incumbents to continue to use their government offices and staff. The Court held that political candidates and elected officials are not similarly situated, and that the elected officials are not permitted to use their government offices for campaign purposes.[17] Indeed, the governor’s order closed all campaign offices, including those operated by incumbents.[18]

The campaign also asserted that it was being treated differently than social advocacy organizations, some of which were permitted to remain open, even though both the campaign and advocacy organizations “advocate for social and political causes.”[19] The Court rejected this argument, however, noting that the advocacy groups remaining open were those groups that “advocate for vulnerable individuals.” The campaign, by contrast, was formed primarily to “administer a political campaign”, and the court, based on that, found it was not similarly situated and there was thus no equal protection violation.[20]

First Amendment

Finally, the political campaign argued that the governor’s order violated the First Amendment by restricting the campaign’s ability to peacefully assemble and engage in speech and advocacy.[21] The Court held that the state is entitled to “place content neutral time, place, and manner regulations on speech and assembly so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.”[22] The Court found that “containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest.” The Court also found that other avenues of communication were not foreclosed: the order did not restrict telephone, videoconference, or Internet-based campaigning.[23] The Court then held that the governor’s order does not “regulate speech at all, let alone based on content,” and, as a result, was a neutral time, place, and manner restriction on speech.[24]

The concurrence and dissent

The Chief Justice of the Pennsylvania Supreme Court, joined by two other justices, filed a separate opinion concurring in part and dissenting in part.[25] The Chief Justice agreed with the majority’s conclusion that the COVID-19 pandemic qualified as the sort of disaster that triggers the governor’s emergency powers under the Emergency Code. But the Chief Justice contended that the governor’s “waiver” decisions may be arbitrary, which “cannot be tolerated” given the serious economic consequences, which would be significant and, in some cases, permanent, to the extent the shutdown forces entities out of business.[26] The Chief Justice argued that the Court should have deferred decision on that issue until the lower courts had engaged in further fact-finding.[27]

Implications for future cases

The Pennsylvania Supreme Court’s decision may have impacts in other jurisdictions and contexts. First, the Court’s holding that COVID-19 is a “natural disaster” could have an impact in other contexts—for example, in courts deciding whether the pandemic is a natural disaster or “act of nature” for purposes of insurance contracts or force majeure provisions of other contracts. 

Second, because the Court’s decision is the first decision from an appellate court regarding the constitutionality of emergency, COVID-19-related governmental acts, it may be influential to courts in other jurisdictions considering similar issues. The Court’s decision underscores the fact that, as we have previously written, the severity of the current emergency and the length of time governmental restrictions are in effect will be the crucial factors in other, similar constitutional challenges. Even so, the Pennsylvania decision was driven by its specific facts and circumstances, and may not be followed by other courts addressing pandemic-related measures of different scopes and durations. 

Finally, the Chief Justice’s dissent raises the issue that similar challenges should require an examination of potentially arbitrary portions of such orders. The Chief Justice was also skeptical of the majority’s reliance on the “temporary” nature of the orders, given that the orders could have permanent effects on those entities driven out of business by the shutdown. Other courts could seize on these points in challenges to similar governmental restrictions in other states.

 

[1] Available at http://www.pacourts.us/assets/opinions/Supreme/out/68MM2020mo%20-%2010439399799476700.pdf?cb=1.

[2] Id. at 21-23.

[3] Id. at 24.

[4] Id. at 24-25.

[5] Id. at 29-30.

[6] Id. at 30.

[7] Id. at 30-31.

[8] Id. at 31.

[9] Id. at 32-33.

[10] Id. at 35-36.

[11] Id. at 37.

[12] Id. at 38-39.

[13] Id. at 40.

[14] Id. at 40-41.

[15] Id. at 44.

[16] Id. at 45 n.18. The Court also held that the challengers were not entitled to judicial review of the governor’s waiver decisions because the Pennsylvania Constitution only provides for judicial review of “administrative adjudications,” and the governor’s waiver decisions do not qualify. Id. at 45-46.

[17] Id. at 47.

[18] Id.

[19] Id. at 47-48. 

[20] Id.  One of the other challengers, the operator golf course, argued that the governor’s order violated equal protection because the order allowed municipal golf courses to remain open. Id. at 48.  In fact, the governor’s order did not distinguish between public and municipal golf courses. Id.

[21] Id. at 48-49.

[22] Id. at 49 (internal quotations omitted). 

[23] Id. at 49-50. 

[24] Id.

[25] Available at http://www.pacourts.us/assets/opinions/Supreme/out/68MM2020cdo%20-%2010439399799476708.pdf?cb=1.

[26] Concurrence and Dissent at 2. 

[27] Id. at 3-4.