By Matthew Santoni

Law360 (August 20, 2020, 3:18 PM EDT) -- A group of Pennsylvania businesses, counties and political candidates suing over Gov. Tom Wolf's COVID-19 closure orders say a confidential settlement with the state, entered into the record Thursday, allowed tens of thousands of people to attend a flea market in Carlisle, Pennsylvania, in June, despite orders otherwise limiting public gatherings.

The plaintiffs claiming the business closures were unconstitutional entered the newly divulged settlement with the operators of the Spring Carlisle flea market into the record in Pittsburgh federal court Wednesday, arguing that it indicates how some businesses and events are getting unequal treatment from the state under orders shutting down "non-essential" businesses to slow the spread of the pandemic.

"The agreement clearly deviates from restrictions imposed upon other counties, businesses and persons in the commonwealth of Pennsylvania, in that it allows a greater indoor occupancy, as well as permitting a greater outdoor occupancy than other individuals, businesses and persons were permitted, and placed a limit of 20,000 individuals on the outdoor occupancy of Spring Carlisle," the plaintiffs' notice of supplemental authority said.

U.S. District Judge William S. Stickman granted the plaintiffs' motion and added the settlement agreement to the record in the case Thursday. State officials had initially objected to making the settlement public, but Judge Stickman said the agreement had been released to the plaintiffs in response to a Right-to-Know request and was presumptively a public record.

Hair salons, two drive-in movie theaters, a furniture and appliance store, and a horse-training business joined county commissioners and Republican politicians running for reelection to sue Gov. Wolf and Secretary of Health Rachel Levine in May, claiming the closure orders, restrictions on the size of gatherings and the process for granting some businesses waivers violated their First, Fifth and 14th amendment rights.

Judge Stickman granted a motion to fast-track the declaratory judgment aspects of the case, though Gov. Wolf responded that the state's easing of closure orders rendered the suit moot.

After initially shutting down almost all "non-essential" businesses in March, the restrictions were gradually lifted on a county-by-county basis until the whole state was in the "green" category by July 3. But there are still statewide occupancy limits in place, and the governor issued new restrictions on bars, restaurants and private catered events amid a spike in cases in July.

The state had sued Carlisle Events, the organizers of the Spring Carlisle car show and flea market, in Commonwealth Court on June 17, seeking to keep the then-imminent event from hosting an anticipated 100,000 attendees. According to the complaint, which had also been cited by the closure opponents in the present case, Carlisle Events asked for a waiver of the 250-person limit on gatherings and was refused. It then didn't respond when the state asked for confirmation that it would adhere to the limits.

The settlement for that case, dated June 19, said the car show would operate solely as a flea market and would limit indoor occupancy to 250 people or half of each building's rated capacity, whichever was less. Total attendance at the 81-acre event site would be limited to 20,000 people, which was 50% of its capacity and would still allow 176 square feet of space per person, the settlement said.

Though the settlement with Carlisle Events was marked confidential, the plaintiffs in the current case asked the federal court to compel the state to turn it over. The state provided it on Wednesday, the notice said.

The plaintiffs said the settlement and the deal it represented for Carlisle Events was relative to their First Amendment and equal protection claims. It also was relative to the testimony of Gov. Wolf's Deputy Chief of Staff Sam Robinson, who had testified during a hearing on the case that he was not familiar with the terms of the settlement.

"The guidance for settings such as outdoor flea markets, where individuals do not congregate for discrete events or shows, has always been different than the guidance offered on large gatherings for an event or show," Maggi Mumma, a representative of the Pennsylvania Department of Health, told Law360 Thursday. "Throughout the pandemic the administration has maintained open communication with any entity with questions on the administration's guidance and will continue to do so as necessary."

Thomas King of Dillon McCandless King Coulter & Graham LLP, representing the plaintiffs, said the crowds allowed by the state's settlement with Carlisle had violated the state's own restrictions on gatherings, even after the health department sued to limit it to 250 people.

"It applies as evidence of disparate treatment of Cumberland County, where the car show took place, and the four counties I represent," King told Law360. "It is also evidence of preferential treatment given to commercial speech over political campaign speech."

Several of the plaintiffs were Republican lawmakers running for reelection who said they had been unable to hold campaign rallies and fundraisers under the 250-person limit.

The plaintiffs are represented by Thomas W. King III, Ronald T. Elliott, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP and Greene County Solicitor Robert E. Grimm.

The state is represented by Josh Shapiro, Keli M. Neary and Karen M. Romano of the Pennsylvania Attorney General's Office.

The case is County of Butler et al. v. Wolf et al., case number 2:20-cv-00677, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Jack Karp.

Update: This article has been updated with comments from the plaintiffs' attorney.

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