Justices Won't Upend Pa. Gov.'s Virus Closure Order

By Matt Fair
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Law360 (May 6, 2020, 7:20 PM EDT) -- The U.S. Supreme Court on Wednesday refused to hit the pause button on an executive order inked by Pennsylvania's governor in mid-March shuttering nonessential businesses as a means to help curb the spread of COVID-19.

While the challengers, including a Pittsburgh-area state legislative candidate and a Lehigh Valley real estate agent, have said that Gov. Tom Wolf's executive order violated their due process and freedom of assembly rights, the court on Wednesday rejected arguments they were suffering irreparable harm requiring an immediate stay.

The court did not comment on the case in issuing its order denying the stay.

While Wednesday's order may have denied a request to stay Wolf's executive order, a petition asking the court to weigh the merits of the challenge remains pending.

Wolf ordered the closure of "non-life sustaining" businesses across the state on March 19 as part of social distancing initiatives aimed at slowing the coronavirus's spread.

Alongside the closure order, Wolf implemented a system letting shuttered businesses to apply for waivers allowing them to be recategorized as "life sustaining" and to continue operating throughout the duration of the emergency.

Less than a week later, the challengers asked the Pennsylvania Supreme Court to ax the order as an improper use of the governor's emergency powers and as an infringement on constitutional rights.

In particular, the challengers argued that the waiver system violated due process rights, as businesses did not have a sufficient opportunity to challenge decisions on their applications to remain open.

The state high court ultimately ruled that the governor's powers during a state of emergency, coupled with the temporary nature of the closure order, overrode concerns raised by the challengers.

In bringing the case to the U.S. Supreme Court, the challengers asked for an immediate stay of the executive order based on what they argued was "a serious denial of the constitutional rights of petitioners and tens of thousands of Pennsylvania businesses that are similarly situated."

After being ordered to file a response to the stay petition, Wolf argued that his order had been a carefully measured attempt to balance restrictions on private businesses against the need to prevent the health care system from being inundated by COVID-19 cases.

He added that undoing that balance could result in an explosion of new infections.

A spokeswoman for Wolf's office said on Wednesday that they were "pleased" with the court's decision denying the stay.

Marc Scaringi, an attorney with Scaringi Law representing the challengers, said he was hopeful, despite losing his bid for a stay of the order, that the court would nonetheless hear his clients' appeal on the merits of the lockdown.

"The litigation continues," he said in an email on Wednesday night. "My clients and I will continue the fight to restore the constitution to Pennsylvania, to reopen Pennsylvania and to put the people of Pennsylvania back to work. We will not stop until the job is done."

The challengers are represented by Marc Scaringi and Brian Caffrey of Scaringi Law.

The commonwealth is represented by Gregory Schwab of the Office of General Counsel and J. Bart Delone, Daniel Mullen, Keli Neary and Karen Romano 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 Michael Watanabe.

Update: This story has been updated with comments from the parties.

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