By Matt Fair

Law360 (July 22, 2020, 10:32 PM EDT) -- Ongoing restrictions placed on Pennsylvania businesses in response to the coronavirus pandemic have left entrepreneurs in a kind of regulatory prison with little hope of escape, an attorney suggested during a federal court hearing Wednesday aimed at striking down Gov. Tom Wolf's remaining rules.

Thomas King III, an attorney with Dillon McCandless King Coulter & Graham LLP representing a group of businesses and Republican politicians challenging the restrictions, hammered a top gubernatorial aide during cross-examination for what he said was the administration's failure to come up with a plan to move beyond the slate of rules that continue to be imposed even as the state has moved into its so-called green, or least restrictive, phase of reopening.

"It's sort of like 'Shawshank Redemption' where we're still crawling around the pipes inside the prison, but no one has figured out how to get us out of there," King said.

But Sam Robinson, who serves as a deputy chief of staff to the Democratic governor, said that conditions on the ground, including a recent uptick in new cases as reported by the state's Department of Health, necessitated a slow and deliberate end to the ongoing restrictions.

"We will eventually have a discussion on how to do that," Robinson said. "I don't think we're quite there yet. When we're led there by the data, those kinds of discussions will begin."

The back-and-forth on Wednesday came as U.S. District Judge William Stickman mulls claims from several salons, two drive-in movie theaters, a furniture and appliance store, and a handful of state and county politicians that the governor's ongoing restrictions on businesses run afoul of constitutional due process, equal protection and free assembly rights.

Wolf ordered the closure of non-life-sustaining businesses in mid-March as the novel coronavirus began spreading in earnest across Pennsylvania. But his administration has slowly eased restrictions on a county-by-county basis over the past weeks and months as the number of new cases has gone down.

The reopening has proceeded in accordance with a three-stage system under which counties moved among red, yellow and green phases depending on multiple factors including overall COVID-19 case rates and the availability of testing and contact tracing.

But even as the entire state has now been downgraded to the green stage, which features the fewest restrictions, the governor last week imposed a new set of rules on bars, restaurants and private catered events following a spike in cases.

King seized on the overall fluidity of the restrictions during Wednesday's hearing as a mark of the overall uncertainty that businesses are facing as a result of the governor's actions.

"None of this is over with at this point," he said.

Robinson conceded that he believed it was within the governor's power to reimpose restrictions in the event of another flareup of virus cases, but he said there were no current plans to do so.

"It's the case that the governor continues to have a disaster declaration in place and, depending on the course of the development of the virus, certain restrictions could be put back in place, but anything beyond that would be speculative," he said.

King pressed Robinson on how exactly the governor's office came up with guidelines to delineate between life-sustaining and non-life-sustaining businesses, and, with regard to the most recent set of restrictions handed down last week, how the state arrived at numbers regarding how many people were allowed inside restaurants at a given time.

Robinson testified that decisions were made by a team within the governor's office in consultation with experts within both the Department of Health and the Department of Community and Economic Development.

While King pushed for details about specific members of the governor's team, whether meeting minutes were taken, and if specific proposals had been put up for votes inside the Wolf administration, Robinson said that the process had been more informal.

He balked at the suggestion that the restrictions should have been subjected to a formalized regulatory process under the state's Regulatory Review Act, saying that it would've taken years to complete.

"All of those procedural steps under the Regulatory Review Act are important for transparency and public participation under normal circumstances, but in this instance when you're going from 16 cases [at the beginning of March] to hundreds and thousands of cases within the space of several weeks, it would have been completely impossible to adhere to while getting rules in place to protect the public," he said.

Judge Stickman ordered both sides to submit post-hearing briefs.

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 Haylee Pearl.

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