In County of Butler et al. v. Thomas W. Wolf et al., Judge William S. Stickman IV, United States District Judge for the Western District of Pennsylvania, issued a lengthy 66-page opinion criticizing Pennsylvania’s stay-at-home orders and restrictions on business activity. The court entered judgment for plaintiffs including several Pennsylvania counties, state legislators, and businesses. The plaintiffs successfully petitioned the court for a declaratory judgment stating the emergency government orders violated their constitutional rights.
The plaintiffs prevailed by arguing that restrictions on gatherings violated the First Amendment, and Pennsylvania’s stay-at-home orders and business closures violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. The court held for plaintiffs on all three issues, setting the stage for the Third Circuit to hear the issue on appeal.
Among other criticisms, the court expressed concern over the lack of transparency and accountability in Pennsylvania’s decision-making process.
Judge Stickman wrote that he “believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good — especially in a time of emergency.”
The court applied “regular” constitutional scrutiny to Pennsylvania’s orders, citing the ongoing and indefinite nature of the government actions. The court reiterated the importance of the judiciary as an independent check on executive power, in particular, when the executive acts in the absence of input for the legislature, in rejecting a more deferential standard of review. The Court also held the county plaintiffs did not have standing to bring Section 1983 claims.
The court applied intermediate scrutiny to congregation limits and rejected the argument that the government orders were rendered moot by the recent relaxation of restrictions. For example, although the stay-at-home orders are “suspended,” they technically remain in place, and can be reinstated in the future.
The court held that the restrictions on business operations are also unconstitutional, noting the Fourteenth Amendment guarantees the right of a citizen to support themselves in their chosen profession. The court characterized the design, implementation and administration of businesses closures as “shockingly arbitrary.” Judge Stickman wrote the definition of “non-essential” businesses was “circuitous” and constantly changing, a problem further compounded when the waiver process closed on April 3, 2020. This closure left shuttered businesses without any meaningful recourse.
The court ultimately found the distinction between “essential” and “non-essential” businesses failed rational basis scrutiny, the lowest level of constitutional review.
According to Judge Stickman, “An economy is not a machine that can be shut down and restarted at will by the government.” The court explained the ability to support oneself is “essential to free people in a free society.” The decision is already making legal headlines for its citation to Lochner v. New York, a case long out of favor with many courts and legal scholars.
Judge Stickman states in his conclusion that, “The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”
This case will be appealed to the Third Circuit and stands at odds with the Supreme Court of Pennsylvania’s decision earlier this year in Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020). The order could be stayed pending appeal.
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Author Patrick McKnight is an associate in the Litigation Department at Klehr Harrison.