By Matthew Santoni

Law360 (July 10, 2020, 4:22 PM EDT) -- Pennsylvania Gov. Tom Wolf said a federal lawsuit over his orders to close businesses due to the COVID-19 pandemic should be dismissed, in part because he had since loosened or lifted many of the restrictions the suit claimed were unconstitutional.

The suit, brought by Southwestern Pennsylvania counties, businesses and elected officials, had been fast-tracked by a Pittsburgh federal judge, but is unsuitable for declaratory judgment because many restrictions were lifted when the last parts of the state moved into "green" status over the past month, the governor argued in a brief filed with the court Thursday.

"Because a declaratory judgment must be based on a real and immediate injury, and because the harms alleged by plaintiffs have been rendered moot by the transition to the 'green' phase, plaintiffs' request for a declaratory judgment should be denied," the brief said.

In seeking to dismiss the complaint, Wolf argued that the closure orders were an appropriate exercise of his powers to protect public safety and that the plaintiffs could not claim the orders had violated their rights to due process, equal protection or freedom to gather.

Butler, Fayette, Greene and Washington counties; 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 filed the suit May 7 against Gov. Wolf and Pennsylvania Department of Health Secretary Rachel Levine. Both sides submitted their affidavits and evidence for the case Thursday.

Though the Supreme Court of Pennsylvania had ruled in the governor's favor in a similar suit, U.S. District Judge William S. Stickman granted the current case an expedited hearing on some of its claims because, as he said in late May, the alleged deprivations of rights were active and ongoing.

But most of Southwestern Pennsylvania's counties, including the four named among the plaintiffs in the lawsuit, have moved to the "green" phase of the governor's stoplight-coded reopening plan. The current green phase still limits gatherings to fewer than 250 people and requires bars, restaurants, retailers and other businesses to stay below 50% occupancy, but there is no more blanket closure of "non-essential" businesses or waivers for some businesses to stay open.

Cases in some counties were trending upward again, but the governor's brief argued that with the restrictions mostly lifted, a declaratory judgment would be inappropriate for past conduct and inapplicable to future restrictions.

"Currently, all counties are in the 'green' phase and all businesses are permitted to open. Moreover, it is unknown whether the facts as pled will exist again, considering the unprecedented nature of the pandemic and the defendants' response," the brief said. "Thus, a declaratory judgment on this record amounts to nothing more than either an adjudication of past conduct or an advisory opinion on hypothetical future facts."

Even if the case were to go forward, the governor said his declarations were an appropriate use of his emergency powers, adding that the state Supreme Court's earlier decision upheld that they were and that the federal district court should be bound by that.

"In striking the proper balance, police powers can be used whenever reasonably required for the safety of the public under the circumstances," the brief said. "Plaintiffs propose that their physical locations should have remained open while employing unspecified COVID-19 precautions. But even assuming plaintiffs' proposals could be discerned and were reasonable, so was the Governor's response … Nearly every state responded in the same way, ordering all or certain non-essential businesses to close physical locations in order to enforce social distancing."

The counties and businesses had claimed their equal-protection rights were violated because some businesses were allowed waivers and some counties had their restrictions lifted before others. Wolf countered Thursday that when weighing public health and safety, he was not required to treat all entities the same, and he could place more stringent restrictions on counties that had worse outbreaks of the virus.

"Here, plaintiffs make no attempt to allege their businesses are life-sustaining or that they are similarly situated to life-sustaining businesses," the brief said. "Instead, they allege they are similarly situated to either businesses in other counties who entered the 'yellow' or 'green' phases first or businesses in other states. This argument ignores the fact that plaintiffs' businesses were located in counties that did not meet the reopening criteria, thus, differentiating them from businesses located in counties that had met the criteria."

Thomas King of Dillon McCandless King Coulter & Graham LLP, one of the attorneys representing the plaintiffs, said he wasn't surprised by any of the governor's arguments, but was confident he could make his case in court at a hearing scheduled for the following week.

"We believe we have a very legitimate and strong case with regard to the issues currently before the court," he told Law360 Friday.

Representatives of the governor's office did not immediately respond 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, 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.

--Editing by Steven Edelstone.

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