Wolf’s COVID-19 business closures, limit on gatherings unconstitutional, federal court rules

Spotlight PA is an independent, non-partisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media. Sign up for our free weekly newsletter.

HARRISBURG — Delivering a blow to Gov. Tom Wolf’s strategy for responding to the coronavirus pandemic, a federal judge on Monday ruled that key components of the governor’s mitigation strategy are unconstitutional, including decisions to temporarily shut down businesses and limit how many Pennsylvanians can gather in one place.

“The court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus,” U.S. District Judge William S. Stickman IV wrote in the 66-page ruling. “But 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.”

Stickman found that the Wolf administration’s policy limiting indoor and outdoor gatherings and events to 25 and 250 people, respectively, violates “the right of assembly enshrined in the First Amendment.”

The Pittsburgh-based judge also found Wolf and Health Secretary Rachel Levine’s stay-at-home and business closure orders to be unconstitutional. The ruling came two weeks after a federal judge in Philadelphia took the opposite stance in a case focused solely on business closure orders, setting the stage for the battle to continue at the U.S. Court of Appeals for the Third Circuit.

Health experts widely considered temporary shutdowns and limits on business operations to be necessary in order to slow the spread of COVID-19 and keep hospitals from becoming overwhelmed. Over the summer, Pennsylvania’s highest court rejected a lawsuit by GOP lawmakers seeking to end the disaster emergency declaration that greatly expanded Wolf’s powers.

The Wolf administration will file an appeal and seek a stay to temporarily block the decision, the Democratic governor’s spokesperson, Lyndsay Kensinger, said. The ruling “is limited to the business closure order and the stay-at-home orders issued in March ... as well as the indoor and outdoor gathering limitations.” The decision does not apply to other mitigation orders currently in place, including the mandate to wear masks in public, Kensinger added.

It comes as states across the country are girding for a potential resurgence of the virus in the fall and winter months. A moderate uptick in cases has already arrived as students have returned to college towns.

It also comes as federal unemployment benefits have dried up, Wolf’s moratorium on evictions and foreclosures has expired, and going back to school adds a challenge for many families.

A federal moratorium on evictions took effect this month, but it doesn’t cover as many renters as the state’s ban did, leaving some at risk. But households struggling to make rent or mortgage payments may get relief: Pennsylvania will receive nearly $2 billion in new funding to help people at high risk of eviction who need temporary financial assistance, Sen. Bob Casey (D., Pa.) announced Monday.

» READ MORE: As officials urge flu shots, here's how to decipher symptoms of COVID-19, flu, common cold, and allergies

Pennsylvania reported 1,258 new cases of the virus from the last two days, a total that didn’t include cases in Philadelphia due to reporting delays, the state said. Philadelphia reported 271 new cases on Monday, accounting for all new test results since Friday. New Jersey reported 346 new cases.

Several New Jersey school districts have already been forced to modify plans for in-person classes due to coronavirus cases among staff members, though the state has not linked any outbreaks to in-school transmission, officials said Monday. State health officials said that while some cases are to be expected, the contact tracing and surveillance systems in place for schools are working.

College students are driving up case counts in Pennsylvania, and Health Secretary Rachel Levine asked them to help “change the course of the spread of this virus” by taking precautions seriously.

“One of the biggest lessons that we have learned from this pandemic is that we are all interconnected and interdependent on each other really in every way,” Levine said Monday. “We must stand united in our efforts to stop this virus from doing more damage to our communities, our families and our friends.”

Levine, speaking at an afternoon news conference, declined to comment on the federal judge’s decision about the state’s pandemic orders or its implications.

Wolf has insisted that every action he and his administration have taken followed recommendations by the nation’s top health experts and contributed to preventing the virus' spread. Republicans who control both legislative chambers have accused him of acting unilaterally and overstepping the bounds of his authority.

But despite that pushback, Wolf’s policies had survived court scrutiny up until Monday. Last month, Philadelphia-based U.S. District Judge R. Barclay Surrick dismissed a challenge to the business closure orders, saying the restrictions were temporary and, therefore, did not infringe in any permanent way on business owners' constitutional rights.

“We are skeptical of claims seeking to challenge emergency government action taken to combat a once-in-a-lifetime global health crisis,” wrote Surrick, an appointee of President Bill Clinton. Stickman was nominated to the federal bench in 2019 by President Donald Trump

The lawsuit that led to Stickman’s decision was filed in May against Wolf and Levine by four Western Pennsylvania counties — Butler, Fayette, Green, and Washington — as well as individual businesses and lawmakers.

It targeted, in part, an order Wolf and Levine issued in March shuttering all but “life-sustaining” businesses. Exactly what was deemed life-sustaining and how that decision was made was the center of controversy, and led the administration to create a waiver program that allowed businesses to appeal closures.

But that program itself became controversial after lawmakers and business owners reported it was unevenly applied within industries.

The state has since lifted the stay-at-home orders and allowed businesses to reopen, although some — including restaurants, bars, and salons — are still operating under capacity restrictions. The decision does not apply to limits on how many patrons bars and restaurants can serve indoors.

Republicans in the legislature applauded the ruling, including three members of the state House who helped bring the lawsuit. Rep. Tim Bonner (R., Butler) said the decision “would basically undermine the governor’s ability to continue to rule by edict.”

Washington County Commissioner Nick Sherman, a Republican, called the decision “a huge step in the right direction.” But he cautioned that people should still wear a mask, practice social distancing, and follow Centers for Disease Control and Prevention guidance.

“This is not opening the floodgates and saying, ‘Let’s flood Heinz Field this Sunday for a Steeler game,’” he said. “There are still precautions that need to take place.”

Mayor Jim Kenney’s office noted the court’s decision only applied to the state’s orders, not the city’s.

“Within Philadelphia, all of the orders and regulations that the city put in place are still in force,” said spokesperson Mike Dunn. “Today’s ruling has absolutely no bearing on any of the orders which have been effective in lowering the number of new cases of COVID-19 in Philadelphia to levels not seen since March.”

In ruling against the Wolf administration’s order closing nonessential businesses, Stickman held that its application had been arbitrary and followed no coherent definition of which businesses were “life-sustaining.”

What’s more, the judge ruled, the administration’s waiver program allowed some companies to resume operations even while their competitors in the same industry were denied the same relief.

While the Wolf administration has argued that the situation is moot as almost all businesses have been allowed to reopen, Stickman noted that the order issued in March had no end date and that state health officials have warned it could be reinstated as necessary at any time.

“The court recognizes that defendants were acting in haste to address a public health situation,” wrote Stickman. “But to the extent the defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the commonwealth at least deserved an objective plan.”

Contributing to this article were staff writers Rob Tornoe, Allison Steele, Ellie Silverman, Laura McCrystal, and Sean Collins Walsh, and Cynthia Fernandez and Jamie Martines of Spotlight PA.

100% ESSENTIAL: Spotlight PA relies on funding from foundations and readers like you who are committed to accountability journalism that gets results. If you value this reporting, please give a gift today at spotlightpa.org/donate.