By Dave Simpson

Law360 (March 20, 2020, 11:49 PM EDT) -- The Pennsylvania Supreme Court denied as moot late Sunday a criminal defense attorney's push to declare unconstitutional Thursday's executive order to shutter all nonessential businesses amid the coronavirus outbreak after Gov. Tom Wolf added a provision over the weekend allowing lawyers to prepare for court hearings that are still going ahead.

In the brief two-page order, the state Supreme Court noted that while Wolf's March 19 order did force law firms to "cease physical operations," the governor subsequently added a provision making an exception, "to allow attorneys to participate in court functions deemed essential by a president judge...lawyers may access their offices to effectuate such functions and directives."

On Friday, William Costopoulos of Costopoulos Foster & Fields filed a complaint before the state Supreme Court, arguing that by forcing attorneys to close their law offices, Wolf is depriving Pennsylvania citizens of their constitutional right to counsel and due process.

"Consider wills [and] estates trusts," he said. "A senior citizen suffers from the [coronavirus] and is admitted to ICU in a hospital. A living will and power of attorney have to be drafted. Is the family prevented from meeting their attorney at their law office to prepare these documents?"

Costopoulos went on to argue that the Keystone State's high court alone has the authority to regulate the practice of law. Neither the executive branch nor the legislative branch are allowed to dictate the legal sphere, he said.

The attorney had asked for a temporary restraining order on the governor's shutdown, as it pertains to law firms, while the high court ponders its final decision on the matter.

On March 16, Wolf urged nonessential businesses statewide to close for two weeks, among which were included "retail facilities, including shopping malls — except for pharmacy or other health care facilities within retail operations." By Thursday, the urging became an official order, with local and state agencies getting the greenlight to enforce the declaration.

In another petition filed with the state's supreme court Friday, two law firms, along with a gun shop and prospective gun owner, took aim at the order in its entirety, arguing that Wolf exceeded his authority. The state Supreme Court's order Sunday denied the application in a split decision.

In addition to unjustly restricting the firms' ability to practice law, the petition argues that Wolf's order, and its vague classification of gun shops, violates Second Amendment rights.

"Against the backdrop of growing uncertainty, the right of law-abiding commonwealth residents to keep and bear arms, as guaranteed by both the Pennsylvania and U.S. constitutions, is the epitome of life-sustaining," the petitioners said.

In a brief dissenting opinion to the state Supreme Court's order, Justice David N. Wecht wrote he was "troubled by the uncertainty" caused by the governor's order and said the state should "make some manner of allowance for our citizens to continue to exercise this constitutional right."

Pennsylvania is one of many states that's ordered or urged some form of restricted brick-and-mortar commerce in an effort to stem the spread of the COVID-19 disease, which first appeared late last year in Wuhan, China.

Costopoulos is representing himself.

The petitioners in the other case are represented by Joshua Prince of Civil Rights Defense Firm PC.

Counsel for the state was not immediately known Friday.

The cases are In re: Governor Tom Wolf's Order Of March 19, 2020, case number 64 MM 2020, and Civil Rights Defense Firm PC et al. v Wolf, case number 63 MM 2020, both in the Supreme Court of Pennsylvania.

--Editing by Jay Jackson Jr.

Update: This story was updated March 22 to include information about the Pennsylvania Supreme Court's order.

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