Analysis

Pa.'s Biz Closure Fight Signals Gathering Storm Of Litigation

By Matt Fair
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Law360 (March 23, 2020, 10:06 PM EDT) -- While the Pennsylvania Supreme Court on Sunday junked a challenge to portions of Gov. Tom Wolf's emergency order shuttering nonessential businesses during the COVID-19 outbreak, experts say the case is a likely harbinger of legal fights across the country as the coronavirus crisis drags on.

As state and local governments impose increasingly strict measures to prevent the spread of the virus, including orders requiring businesses to close their doors or for residents to remain in their homes, legal experts say that questions over the enforceability of the mandates are only going to mount.

Currently, the bulk of those questions are being raised in squabbles between executive and legislative officials, but Arizona State University law professor James Hodge said it was only a matter of time before the issues ended up in the courts.

"We're starting to see challenges to these orders much in line with what happened in Pennsylvania," Hodge said. "To the extent we see actual lawsuits filed — I think they're out there."

Indeed, similar suits have already cropped up in other states, and the dispute in Pennsylvania may give insight into the types of arguments that will be in play across the country and whether such cases are likely to succeed, at least in the short term.

"You're going to see these types of claims brought early on and courts are going to say, 'Forget it, we're in a very significant public health emergency, the governor has ordered this, and it's within his or her authority to do it,'" Hodge said.

The legal challenge filed in Pennsylvania on Friday came a day after the state's governor issued an order requiring all "non-life-sustaining" businesses to close their physical locations in order to help stop the spread of the novel coronavirus.

A similar measure was put in place in California last week, while the governors of New York and New Jersey issued their own shutdown orders over the weekend.

Wolf's order in Pennsylvania prompted criticism from Republican legislators who called the measure "an economic blow to every worker in the state."

"These actions will shut down many small, family-owned shops and businesses, not only for the duration of this event, but possibly, and probably, forever," the leaders of the GOP caucus in the state's House of Representatives said in a joint statement.

The subsequent legal challenge — which was brought by two law firms, a gun shop and a prospective gun owner — specifically targeted the governor's decision to lump law offices and gun shops into the category of nonessential businesses.

In addition to arguing that the order unjustly restricted the firms from practicing law, the petition argued that Wolf's order violated both the Second Amendment and analogous provisions of the Pennsylvania Constitution.

"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 two-page order issued Sunday evening, however, the justices declined to take jurisdiction over the case.

The court noted that Wolf amended his order to allow attorneys to access their offices "to participate in court functions deemed essential" by judges on either the state or federal level.

While the court didn't specifically address arguments over restrictions on gun sales, a dissenting opinion from Justice David Wecht — who is self-quarantining after one of his children tested positive for COVID-19 last week — said the governor's order created a "clear tension" with both the federal and state constitutions.

"This amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this commonwealth," Justice Wecht said in an opinion joined by two of his colleagues. "In my view, it is incumbent upon the governor to make some manner of allowance for our citizens to continue to exercise this constitutional right."

By simply declining to assume jurisdiction over the challenge to Wolf's restrictions on gun sales, the court left open the possibility of the issue being brought again before a lower court, Duquesne University School of Law professor Bruce Ledewitz told Law360 on Monday.

"They haven't decided anything on the merits," Ledewitz said. "You cannot preclude anybody from suing again based on this order."

Joshua Prince, an attorney with Civil Rights Defense Firm PC who helped bring Friday's lawsuit, said in an email to Law360 on Monday that he was evaluating his options for potential future legal action against the order.

In a post to his firm's blog on Sunday, Prince called the high court's disposition "a major blow to constitutional rights of Pennsylvanians."

"I am truly sorry to all Pennsylvanians that our Supreme Court has chosen to sit idly by, while the governor, through executive fiat, eviscerates our constitutional rights," he said.

He noted in the post, however, that anyone cited for violating the order could challenge any action taken against them on statutory and constitutional grounds in court.

As the case in Pennsylvania was thrown out on Sunday, a new one arose in New Jersey on Monday as both a Second Amendment advocacy group and a Middlesex County gun shop filed suit in federal court challenging a portion of Gov. Phil Murphy's shutdown order deeming firearm dealers nonessential businesses.

In New Hampshire, meanwhile, a trio of citizens unsuccessfully filed suit last week claiming that the state and federal constitutions barred Gov. Chris Sununu from issuing an emergency order barring gatherings of 50 or more people.

In denying an injunction bid in the New Hampshire case, state Judge John Kissinger said that the coronavirus crisis gave Sununu clear grounds to declare a state of emergency and to impose required restrictions on public gatherings.

"The court cannot imagine a more critical and important public objective in protecting the citizens of this state and this country from becoming sick and dying from this pandemic," the judge said as he denied the injunction bid from the bench on Friday.

Given the nature of the coronavirus emergency and the ongoing efforts to stop the rising rate of infection, Hodge said it was unsurprising that courts have, so far, given short shrift to lawsuits challenging closure orders and other restrictions.

But the longer the restrictions drag on, he said, the thornier the legal issues become.

"Two or three weeks from now, or even months from now, you're going to see stronger and more vociferous claims on how far we can go in issuing these closure orders," he said. "The sophistication of the arguments will become more profound, particularly given the decimating impacts on the economy."

--Additional reporting by Dave Simpson. Editing by Aaron Pelc and Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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