By Matthew Santoni

Law360 (June 17, 2020, 8:20 PM EDT) -- The Supreme Court of Pennsylvania agreed Wednesday to step in and resolve a dispute between Gov. Tom Wolf and Republicans in the state legislature over whether lawmakers can unilaterally make the governor end the state's COVID-19 disaster emergency declaration.

Justices in the Keystone State said they would take up the governor's challenge to a lawsuit that Senate President Joe Scarnati, R-Jefferson, Majority Leader Jake Corman, R-Centre, and the Senate Republican Caucus filed on June 10 in the Commonwealth Court, claiming the governor was illegally refusing to comply with a joint resolution passed by both houses of the General Assembly to end the declaration.

In his petition asking the Supreme Court to exercise its "King's Bench" authority to decide extraordinary, pressing issues of constitutional importance, Wolf countered that it was the legislators who had violated the law by refusing to give him the chance to sign or veto the resolution.

"They maintain that the General Assembly can unilaterally force the governor to end the emergency proclamation through a concurrent resolution that need not be presented to the governor," the governor's petition said. "They also maintain that the Pennsylvania Constitution confers on the General Assembly the power to suspend laws at will, without executive presentment or involvement. These positions represent an enormous expansion of the General Assembly's power and are directly contrary to our Constitution."

The Supreme Court agreed to decide whether the resolution lifting the state of emergency had to be approved by the governor, putting a hold on the lawsuit that state Senate leaders had filed in the lower court.

"The court will decide the issues raised in the petitioner's application based upon the filings submitted to this court and to the Commonwealth Court in Scarnati v. Wolf," the Supreme Court's order said Wednesday. "This court will address the merits of petitioner's application in due course."

Wolf issued a disaster emergency declaration in early March as COVID-19 cases first started to appear in Pennsylvania, later issuing an executive order that all non-life-sustaining businesses close their doors in order to ensure social distancing and to curb the spread of the virus.

The governor has been gradually relaxing the closures and other restrictions on a county-by-county basis as new infections slow down, but he renewed the emergency declaration in early June because the state's Emergency Management Services Code only allows such declarations to last for 90 days at a time. Lifting the disaster declaration early, he said, would jeopardize emergency funding, reinstate suspended regulations and end the ability of the Pennsylvania National Guard to help in hospitals and food banks.

Lawmakers relied on a separate part of the Emergency Management code, which they said gives them the power to end a state of emergency through the adoption of a joint resolution by both chambers of the General Assembly, when they passed House Resolution 836. In their lawsuit with the Commonwealth Court, Scarnati and Corman said the governor was refusing to follow through with any proclamations or executive orders ending the emergency.

Wolf said in his King's Bench petition that even though it was presented as a "resolution," H.R. 836 was still legislation that needed to come across his desk before it could take effect under Article III, Section 9 of the Pennsylvania Constitution, otherwise known as the presentment clause. While he would presumably veto it, the legislature could still override his veto if it had enough votes.

Under the state constitution, the only concurrent resolutions that don't require the governor's approval — or, after a veto, re-passage by a two-thirds majority of both chambers — are resolutions ending a legislative session, the governor argued.

"The Concurrent Resolution at issue, H.R. 836, has nothing to do with adjournment. Thus, it needed to be presented to the governor. It was not," the petition for review said. "Prima facie, then, the General Assembly's failure to comply with the presentment clause renders the Concurrent Resolution a legal nullity."

Both sides pointed to the Supreme Court's earlier decision in Friends of Danny DeVito et al. v. Wolf , where the justices narrowly affirmed the governor's ability to temporarily close businesses in response to a statewide emergency.

The governor said the Friends of Danny DeVito case, brought by plaintiffs including a candidate for the legislature, not the actor of the same name, held that his proclamations and executive orders had the full force and effect of law.

The legislators had looked to a different part of the DeVito decision, which said that "as a counterbalance ... the Emergency Code provides that the General Assembly by concurrent resolution may terminate a state of disaster emergency at any time," but Wolf said they still had to follow the presentment clause of the constitution.

When Wolf sent the Supreme Court his King's Bench petition, the state senators said they would not file an answer to the petition, instead electing to rely on the briefs they submitted to the Commonwealth Court as the justices consider the merits of their claims against the governor.

King's Bench jurisdiction allows pressing legal issues to skip the lower appellate courts and go straight to the Supreme Court justices and is usually reserved for issues of government power, though the coronavirus pandemic led to a proliferation of petitions for the release of detainees from county jails, juvenile detention centers and a facility for holding undocumented immigrant families. Businesses seeking insurance coverage for COVID-19 losses also asked the court to use its special jurisdictional powers but were denied.

"We look forward to a swift decision from the Supreme Court now that they've taken up the important questions raised regarding the legislature's clear authority to terminate the Governor's Emergency Declaration," said Jenn Kocher, a spokesperson for Corman.

Representatives of the governor's office also said he was pleased the court was taking up the "very important matter" quickly. 

Wolf is represented by Pennsylvania Attorney General Josh Shapiro and J. Bart DeLone, Claudia M. Tesoro, Howard G. Hopkirk, Sean A. Kirkpatrick and Daniel B. Mullin of the Office of the Attorney General.

Scarnati and Corman are represented by Matthew Haverstick of Kleinbard LLC.

The case is Gov. Tom Wolf v. Sen. Joseph B. Scarnati et al., case number 104 MM 2020, in the Supreme Court of Pennsylvania.

--Additional reporting by Matt Fair. Editing by Steven Edelstone.

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