Pa. Virus Shutdown Order Faces New Constitutional Challenge

By Mike LaSusa
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Law360 (May 7, 2020, 10:41 PM EDT) -- A handful of Pennsylvania counties, elected officials and businesses mounted a legal challenge Thursday against the Keystone State's COVID-19 shutdown order, the day after the U.S. Supreme Court refused to press pause on the order in a separate but similar case.

The counties of Butler, Fayette, Greene and Washington were joined in the federal lawsuit by Republican U.S. Rep. Mike Kelly, several Republican Pennsylvania state house members, a hair salon, a drive-in movie theater, and other businesses and individuals.

The challengers say their First, Fifth and Fourteenth Amendment rights were violated by Pennsylvania Gov. Tom Wolf's March 19 executive order shuttering "non-life sustaining" businesses across the state.

"There is no reasonable or substantial basis between defendants' orders permitting one business to operate in a county while prohibiting a similar business from operating in an adjacent county (or even within the same county) when both businesses are capable of implementing the same safety precautions, policies and procedures," the challengers said.

They also argued that the order went too far in prohibiting constitutionally protected political activities.

"Defendants' business shutdown order limiting the number of individuals at public gatherings violates the freedom of association clause inasmuch as expressive advocacy cannot take place because of the business shutdown order, and it affects persons who pose no danger whatsoever to others," the challengers said.

The suit, which names Wolf as well as Pennsylvania Department of Health Secretary Rachel Levine, is seeking an injunction blocking enforcement of the order. It comes one day after the U.S. Supreme Court rejected arguments by a Pittsburgh-area state legislative candidate and a Lehigh Valley real estate agent that they were suffering irreparable harm from the shutdown order requiring an immediate stay.

The high court did not comment on the case in issuing its order denying the stay, and a petition asking the justices to weigh the merits of the challenge remains pending.

That case ended up at the high court after the Pennsylvania Supreme Court ruled that the governor's powers during a state of emergency, coupled with the temporary nature of the closure order, overrode constitutional concerns similar to those at issue in the newly filed suit.

Thomas W. King III of Dillon McCandless King Coulter & Graham LLP, who represents the plaintiffs in the new suit, told Law360 that the virus shutdown order had "really trampled on people's rights."

"This is the home of the Whiskey Rebellion," King said, referring to the late 18th century uprising spurred by the federal government's attempts to collect a liquor tax. "We don't take kindly to people trampling our constitutional rights."

The governor's office and state health department didn't respond on Thursday to requests for comment.

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. Greene County Solicitor Robert Eugene Grimm is also listed as counsel in the case.

Counsel information for the governor and health secretary wasn't immediately available on Thursday.

The case is County of Butler et al. v. Thomas W. Wolf et al., case number 2:20-cv-00677, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Matt Fair. Editing by Emily Kokoll.

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

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Case Information

Case Title

COUNTY OF BUTLER et al v. THOMAS W. WOLF et al


Case Number

2:20-cv-00677

Court

Pennsylvania Western

Nature of Suit

Civil Rights: Other

Judge

William S. Stickman

Date Filed

May 07, 2020


Case Title

PLAINTIFF v. DEFENDANT


Case Number

2:05-mc-02025

Court

Pennsylvania Western

Nature of Suit

Date Filed

May 07, 2020

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