Justices Appear To Signal Interest In Pa. Virus Closure Fight

By Matt Fair
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Law360 (April 29, 2020, 4:26 PM EDT) -- The U.S. Supreme Court on Tuesday gave Pennsylvania until May 4 to reply to a petition accusing the commonwealth of trampling on constitutional rights as it ordered certain nonessential businesses to close their doors as a result of the coronavirus pandemic.

The challenge landed before the justices earlier this week after the Pennsylvania Supreme Court shot down arguments that Gov. Tom Wolf's emergency order, which allowed businesses to seek waivers from the state to avoid the shutdown mandate, ran afoul of due process protections under the U.S. Constitution.

Just a day after the petition was filed in the U.S. Supreme Court on Monday, Justice Samuel Alito on Tuesday ordered that Wolf's administration provide its response by midday on May 4.

Marc Scaringi, an attorney representing the challengers, told Law360 on Wednesday that Justice Alito's order for a prompt response had left him "cautiously optimistic" about the court's interest in the issue.

"That's the $64,000 question, right?" he said in an interview. "He could've dismissed our petition out of hand, but he chose not to. So we're hopeful it's a good sign, but it's still a difficult challenge to have the Supreme Court step in and stay or stop the enforcement of a governor's executive order."

Wolf ordered the closure of certain enumerated "non-life-sustaining" businesses in a March 19 executive order as COVID-19 began to spread steadily across Pennsylvania.

As the order went into effect, the governor provided a system for certain businesses to apply for waivers that would allow them to potentially continue operating throughout the duration of the emergency.

Less than a week later, the justices were presented with a petition asking that the order be struck down as an improper application of the governor's powers under the state's emergency code and as an infringement on certain constitutional rights.

The challengers in the case include the campaign of Republican state legislative candidate Danny DeVito, the Warren County-based Blueberry Hill Public Golf Course, and licensed realtor Kathy Gregory of Northampton County.

In particular, the challengers argued that the waiver process implemented by the governor under which businesses could seek exemptions from the closure order did not pass constitutional muster under the due process clause, and that the order constituted an improper restriction on the rights of free speech and freedom of assembly.

The Pennsylvania Supreme Court, however, ruled 4-3 earlier this month that the governor's powers during a state of emergency and the temporary nature of the closure order overrode the concerns raised by the challengers.

But in a partial dissent, Chief Justice Thomas Saylor and two of his colleagues raised concerns about the lack of judicial review associated with the waiver process.

"I am less confident … in the majority's conclusion that 'summary administrative action' by the executive branch to close many businesses throughout the commonwealth must evade judicial review as a check against arbitrariness," Justice Saylor wrote. "While the majority repeatedly stresses that such closure is temporary, this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast."

In their application for stay of Wolf's order with the U.S. Supreme Court on Monday, the challengers said that the lack of judicial review was "unprecedented and constitutes a serious denial of the constitutional rights of petitioners and tens of thousands of Pennsylvania businesses that are similarly situated."

"Never before in the history of Pennsylvania has a governor ordered the closure of every single business and entity that he deemed to be 'non-life-sustaining,' which itself it a term that does not appear in any statute or rule cited by the governor," the challengers said.

A spokesperson for Wolf's office did not immediately return a message seeking comment on Wednesday.

The challengers are represented by Marc Scaringi of Scaringi Law.

The commonwealth is represented by J. Bart Delone of the Office of Attorney General.

The case is Friends of Danny DeVito et al. v. Tom Wolf et al., case number 19A1032, before the U.S. Supreme Court.

--Editing by Alanna Weissman.

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

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