Pennsylvania’s gathering limitations, business shutdown and stay-at-home orders violate the United States Constitution, according to a federal judge in the Western District of Pennsylvania, who enjoined enforcement of those orders on September 14, 2020.¹ While the court acknowledged that the “defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus…,” the court held that the Pennsylvania governor’s orders violate the First Amendment, the Equal Protection Clause and Due Process Clauses of the Fourteenth Amendment. Essentially, the court held that the governor acted arbitrarily in establishing gathering limitations and classifying businesses in the Commonwealth as “life-sustaining,” and did not apply clear standards in granting waivers under the business closing orders.

The court’s 66-page opinion is noteworthy in several respects that may affect whether it will hold up on appeal: (1) it contains no recitation of the extent of the coronavirus spread in the Commonwealth or the scientific uncertainty at the time the governor issued his orders; (2) it relies heavily on Supreme Court Justice Alito’s recent opinion dissenting from the denial of a writ of certiorari (as well as other dissenting opinions); and (3) it acknowledges that the U.S. District Court for the Middle District of Pennsylvania and the Pennsylvania Supreme Court have come to a contrary conclusion on similar or identical issues.

Governor Wolf’s Limitations on Gatherings Violated the First Amendment Right to Assemble

The court held that Governor Wolf’s limits on gatherings of 25 people indoors and 250 out of doors, as well as commercial gatherings based on a percentage of occupancy, violated the First Amendment right to assemble. The court held that the restrictions “were not narrowly tailored . . . rather they place[d] substantially more burdens on gathering than needed to achieve their own stated purpose.” The record before the court “failed to establish any evidence that the specific numeric congregate limits were necessary to achieve the Governor’s ends, much less that ‘[they] target and eliminate no more than the exact source of the ‘evil’ [they] seek to remedy.” The court was clearly not impressed with the governor’s articulation of the basis for numerical limitations when he issued these orders.

Government Shutdown of all “Non-Life-Sustaining” Businesses Violate the Due Process Clause of the Fourteenth Amendment and Equal Protection Clause

The court found that Governor Wolf’s action in shutting down “non-life-sustaining” businesses was an “arbitrary, ad hoc process” that violated the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The very purpose of the Fourteenth Amendment is to protect citizens from arbitrary government actions. The court held that the defendants’ determination as to which businesses they deemed “life-sustaining” versus “non-life-sustaining” was an “arbitrary, ad hoc process” that was never reduced to an “objective and measurable definition.” Rather, the governor’s advisory team used a “common-sense” approach to determine which businesses were “non-life-sustaining.” This “inherent arbitrariness in the business shutdown components of the Defendant’s orders” is evident in the very nature of those businesses that were allowed to stay open versus those that were shut down, even though both categories of businesses provided the same products or performed similar services.

Judge Stickman held that “the right of citizens to support themselves in a chosen occupation is deeply rooted in our nation’s legal and cultural history and has long been recognized as a component of liberties protected by the Fourteenth Amendment.” While the defendants argued that the shutdown of “non-life-sustaining” businesses was only temporary, the court held that based on the language of the orders there is no finite end date. In other words, the orders leave open the possibility of reclosing businesses should there be an uptick in COVID-19 cases. The court did not offer a hint on what limitations on economic activities it would allow in the event of mass spread of COVID-19 during the coming winter.

Governor Wolf Plans to Seek a Judicial Stay and Appeal the Federal Court’s Order

In a statement issued on September 15, 2020, Governor Wolf responded to Judge Stickman’s ruling: “there’s no sense debating a ruling that will appealed . . . we will take that appeal as far as necessary to ensure we do that.” As Governor Wolf further stated, “I will continue to do what is necessary to keep people safe and contain the virus. That’s the key.”

The defendants have filed a motion to stay the September 14, 2020 order along with a motion to enter final judgment or, in the alternative, to certify issues for appeal. The court has ordered the plaintiffs to file their brief in response to the defendant’s motion by Monday, September 21, 2020.

What Does this Mean for Pennsylvanians and Business Owners?

As long as the district court injunction remains in effect, the governor cannot enforce the orders that were the subject of this lawsuit and business owners can ignore them.  However, business owners should be aware that the governor had withdrawn most of the extreme measures that are the target of this lawsuit before this decision; furthermore, it appears that the infirmities of the gatherings and “life sustaining” classification system could be remedied through more careful and rational decision-making by the Commonwealth agencies responsible for them. The governor could issue new restrictions based on more scientific data and an improved classification system that would pass muster under the balancing test used by the courts when the state’s police powers come up against individual liberties during a health emergency.

Thus, should a new wave of COVID-19 cases arise in Pennsylvania, the governor could order new restrictions that may pass constitutional muster. In essence, the governor could remedy the restrictions that were under scrutiny by the court and require Pennsylvanians to stay home or businesses to reclose following stricter, subjective guidelines on which business are deemed “life-sustaining.”