Pa. Seeks Stay On Ruling That Tossed Virus Gathering Limits

By Matt Fair
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Law360 (September 17, 2020, 5:51 PM EDT) -- Pennsylvania's governor urged a federal judge late Wednesday to hit the pause button on a decision striking down emergency coronavirus measures that closed businesses and restricted crowd sizes while the administration pursues an appeal to the Third Circuit.

Citing prior decisions affirming the administration's coronavirus response, Gov. Tom Wolf said the order from U.S. District Judge William Stickman earlier this week created divergent precedent and that the decision should be stayed in order for the appeals process to play out.

"The novel coronavirus has raised novel legal issues," the administration said. "The split in authority created by this court's decision alone gives rise to a 'reasonable possibility' that the defendants may prevail on appeal to the Third Circuit, which has not yet had the opportunity to opine on the legality of the orders at issue."

Judge Stickman ruled Monday that the restrictions Wolf enacted in March in response to the ongoing pandemic violated freedom of assembly and due process protections under the First and 14th amendments.

The challenge came on behalf of several salons, two drive-in movie theaters, a furniture and appliance store, and a horse training business that alleged that the governor's approach to handling the pandemic violated their equal protection rights because some counties or businesses were allowed to stay open or reopen sooner than others.

A group of elected officials and political candidates, meanwhile, claimed their First Amendment rights were being violated as a result of crowd size limits that impeded their ability to campaign.

While many of the restrictions involved in the litigation have since been rolled back, the ruling did strike down current limits on crowd sizes.

Unaffected by the ruling, however, are ongoing occupancy limits for businesses, which were not challenged as part of the case.

While the governor's office argued that the danger posed by the virus required that his orders be treated with deference, Judge Stickman said the "ongoing and indefinite nature" of the restrictions weighed against such an approach.

In pushing to stay the decision on Wednesday, the Wolf administration pointed to decisions by federal judges in Philadelphia and Harrisburg and a ruling by the Pennsylvania Supreme Court, all of which rejected constitutional challenges brought against the governor's emergency orders.

Given the split decisions, the administration said it was only fair to stay this week's order and to let the Third Circuit weigh in on the issue.

"There's no sense debating a ruling that will be appealed — two of three federal judges upheld what we did," Wolf said in a statement. "But what's not up for debate is that our early and decisive action saved lives. While the federal government dithered, Pennsylvania took action."

Thomas King III, an attorney with Dillon McCandless King Coulter & Graham LLP representing the challengers, said he intended to "vigorously oppose" the governor's request for a stay.

"Where the civil rights of 13 million Pennsylvanians have been found to have been violated by the governor and the secretary of health, the court should not issue a stay and reinstate those constitutional violations," he said.

The challengers are represented by Thomas W. King III, Ronald T. Elliott, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP and Greene County Solicitor Robert E. Grimm.

The state is represented by Josh Shapiro, Keli M. Neary and Karen M. Romano of the state attorney general's office.

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

--Additional reporting by Matthew Santoni. Editing by Bruce Goldman.

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