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On September 14, 2020, a Pennsylvania federal judge struck down some of Governor Tom Wolf’s COVID-19 mitigation orders that: (1) required Pennsylvania residents to stay at home; (2) limited “events and gatherings” to 25 persons for indoor gatherings and 250 persons for outdoor gatherings; and (3) shuttered all non-life-sustaining businesses as unconstitutional in the case of County of Butler, et al. v. Thomas W. Wolf, et al., No. 2:20-cv-667 (W.D. Pa.). These Orders were previously upheld by the Pennsylvania Supreme Court after the Pennsylvania Legislature attempted to terminate the emergency orders via resolution.

The Constitutional Challenge

On May 7, 2020, three groups of plaintiffs, comprised of: (1) Butler, Fayette, Greene, and Washington Counties of Pennsylvania; (2) Mike Kelly of the United States House of Representatives; and Daryl Metcalfe, Marci Mustello, and Tim Bonner of the Pennsylvania House of Representatives; and (3) Pennsylvania business owners operating hair salons, horse training and racing facilities, retail stores, and drive-in theaters, filed suit seeking to have certain COVID-19 related orders instituted by Governor Wolf declared unconstitutional. Plaintiffs also sought a permanent injunction to prevent enforcement of the Wolf administration’s COVID-19 mitigation orders related to gatherings, residential stay-at-home requirements, and non-life-sustaining businesses. Preliminarily, the Honorable William S. Stickman IV ruled that the county plaintiffs were not proper parties to the action, since as creatures of the state, counties “do not possess rights under the Constitution.”

Following an evidentiary hearing in which documentary and testimonial evidence was introduced, Judge Stickman ruled that the restrictions placed on indoor and outdoor gatherings violated the Freedom of Assembly Clause of the First Amendment, and also found that Governor Wolf’s stay-at-home and shutdown of non-life-sustaining business orders violated the Fourteenth Amendment. The Court stated that it was struck by the arbitrariness of the determination of what was and was not a life-sustaining business (and noted that the Wolf administration never provided a definition of “life-sustaining business”).

In striking down these orders, the Court noted that “[t]he court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. But even in an emergency, the authority is not unfettered.”

The Court acknowledged that the stay-at-home order and the order shuttering non-life-sustaining businesses were currently suspended, since no counties are in the “red phase” of the Governor’s reopening process. However, since these orders could be reinstated at any time, the Court decided to constitutionally scrutinize them, ultimately finding that these orders were unconstitutional. Notably, Judge Stickman specifically did not address any of the subsequent restrictions placed upon restaurants, bars, gyms, or retail centers once permitted to open that limited their occupancy or operating time.

What the Federal Ruling Means

Current restrictions on indoor gatherings of more than 25 people and outdoor gatherings of more than 250 people cannot be enforced, and Governor Wolf will be unable to enact another business shutdown under the terms and authority of his original order. Outdoor venue hosting and event planning businesses are likely to celebrate this decision, as the removal of restrictions on outdoor gatherings means these businesses may choose to resume or increase operations. Specifically, provisions of the order that were struck down applied to “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” However, this ruling does not prevent Governor Wolf from enacting another, more narrowly tailored shutdown in the future. Further, the Court’s opinion did not rule on any of Governor Wolf’s other mitigation orders, including those mandating masks. Provisions of the order mandating telework, and those that place limitations on restaurant, bar, salon, theater, gym, and mall occupancy, were unaffected as well. Accordingly, these types of businesses are still subject to various occupancy limits and Governor Wolf’s Business and Building Safety Requirements.

The Wolf administration announced on September 14, 2020 that it will appeal Judge Stickman’s rulings and seek a stay of the decision. On September 16, 2020, the Pennsylvania Office of Attorney General, representing the Wolf Administration, requested that Judge Stickman delay enforcement of his ruling with respect to indoor and outdoor gatherings. Governor Wolf has 30 days to seek a stay and file his appeal, but it is unknown how long it will take for the Third Circuit to grant a stay or issue an opinion. Absent a stay, there are no current restrictions in Pennsylvania on indoor and outdoor gatherings, except for the aforementioned business occupancy limits. Venue and event planning businesses will likely take a “wait and see” approach before ramping up operations that would ultimately be cancelled in the coming weeks or months if the Third Circuit grants a stay. Assuming a stay is granted, Governor Wolf’s COVID-19 mitigation orders will all remain in effect until the appeals court has an opportunity to address these orders. This includes a reinstatement of the mitigation order limiting indoor and outdoor gatherings, as well as the potential for Governor Wolf to re-order residents to stay-at-home and the shuttering of the same non-life-sustaining businesses that was done in March through June of 2020.

Finally, Judge Stickman’s ruling is likely to reverberate beyond Pennsylvania’s borders. It will surely be used in other states as persuasive authority to support the striking down of similar restrictions, unless and until the Third Circuit issues its opinion on appeal.