A federal judge in Pittsburgh on Monday found that orders issued by Gov. Tom Wolf restricting the size of gatherings and closing non-essential businesses to protect against the spread of covid-19 were unconstitutional.
In a statement, Wolf said his office will seek an immediate stay to halt the order and file an appeal.
U.S. District Judge William S. Stickman IV wrote in his 66-page opinion that even though the actions taken in the spring by Wolf and Health Secretary Dr. Rachel Levine were laudable, they violated the First Amendment right to freedom of assembly, and the Due Process and Equal Protection clauses of the 14th Amendment.
“It’s a complete and total victory for the counties, the businesses and the representatives,” said attorney Thomas W. King III, who represented the plaintiffs in the case. “You can’t order the entire population of Pennsylvania to stay at home.”
The Pennsylvania Attorney General’s office, which represented the defendants in the case, did not immediately return a request for comment.
Lyndsay Kensinger, a spokeswoman for the governor, said they are disappointed in the decision.
“The actions taken by the administration were mirrored by governors across the country and saved, and continue to save lives in the absence of federal action,” she said. “This decision is especially worrying as Pennsylvania and the rest of the country are likely to face a challenging time with the possible resurgence of covid-19 and the flu in the fall and winter.”
She noted that Monday’s order does not apply to the mandatory mask order or the mandatory work-from-home order previously implemented and still in effect.
The plaintiffs in the case included seven businesses and their owners, U.S. Rep. Mike Kelly, R-Butler, state Reps. Daryl Metcalfe, Marci Mustello and Tim Bonner, as well as Butler, Fayette, Greene and Washington counties. The businesses included three hair salons, an appliance store, a farm and two drive-in theaters.
The complaint was filed May 7, arguing that the governor’s orders — setting numeric limitations on the size of gatherings, the stay-at-home order and the closure of non-life-sustaining businesses — were unconstitutional.
After reviewing the record, Stickman said 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.”
Stickman, who was appointed to the bench in 2019, said that “even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situation — may persist long after immediate danger has passed.”
King said that the judge’s decision finding gathering limits to be unconstitutional now applies to everyone in Pennsylvania.
He said that the finding that the stay-at-home order was unconstitutional means it can never be repeated.
As for the closure of non-essential businesses, King believes that will open the door to business owners filing lawsuits against the state seeking relief, or compensation, for their losses during the closure.
“Our goal in bringing this action was that our county commissioners in Butler believed these orders were unconstitutional and unconstitutionally affected residents of their county.”
Thus far, in Pennsylvania, 7,869 people have died from the virus, with 145,063 testing positive. Nationally, there have been nearly 200,000 deaths.
Bruce Antkowiak, a law professor at Saint Vincent College, said that Stickman’s opinion is not precedent-setting for the other federal courts, but does carry persuasive value and will likely be cited in other jurisdictions where these issues are being argued.
“You could argue to another federal judge this federal judge’s decision is sound and reasonable,” said Antkowiak, who had Stickman as a law student. “It is not a nationwide prohibition.”
He called it an unusual decision for a federal judge to make given that the issue revolves around state regulatory authority.
In testimony for the case, King said, there was no medical evidence presented relative to the spread of covid-19, and Levine did not testify and instead sent a representative to do so.
King said that he posed the question — once the stay-at-home order was lifted in early June — what establishments in Allegheny County were responsible for the increased spread of the virus, and no one could answer.
“You can’t just shut down American society,” King said.
In his opinion, Stickman agreed.
“There is no question that this country has faced, and will face, emergencies of every sort,” Stickman wrote. “But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.”
Stickman wrote that the Constitution “sets certain lines that may not be crossed, even in an emergency.”
“The fact is that the lockdowns imposed across the United States in early 2020 in response to the covid-19 pandemic are unprecedented in the history of our commonwealth and our country,” Stickman wrote. “They have never been used in response to any other disease in our history. They were not recommendations made by the CDC.”
Stickman wrote that the defendants never had a set definition for what constituted a “life-sustaining” business, and instead the definition remained in flux.
Stickman wrote that there was no precedent for the closure of non-essential businesses.
“Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion,” he said.
Stickman wrote that the right of citizens to support themselves in their chosen occupation “is deeply rooted in our nation’s legal and cultural history.”
“A total shutdown of a business with no end-date and the specter of additional, future shutdowns can cause critical damage to a business’s ability to survive, to an employee’s ability to support him/herself, and adds a government-induced cloud of uncertainty to the usual unpredictability of nature and life.”
Dr. Amesh Adalja, a senior scholar at the Johns Hopkins University Center for Health Security who practices in Pittsburgh, said that traditionally, public health interventions are supposed to be the least restrictive and most targeted as possible, based on evidence.
“Some of the blanket orders issued early on were not necessarily targeted,” he said. “They have to be really limited in scope and tied to data that is understandable by everybody.”
The state should have defined the time frame that restrictions would be put in place; explained the metrics that would be used to re-evaluate and explained what would trigger re-evaluation, Adalja said.
For example, he said, if the shutdown order was temporary so the state could scale up testing and hiring contact tracers, while fortifying local health departments and ensuring hospitals were well-prepared, that would have been one thing.
“In Pennsylvania, none of that really happened,” he said. “It was difficult for us to understand what was driving certain restrictions.”
Adalja cited New York state as an example of using data to drive decisions. There, metrics like ICU capacity and the number of contact tracers in place were used to decide when things would reopen.
It wasn’t a mystery, he said.
Now, with the court’s decision declaring Wolf’s orders to be unconstitutional, Adalja said, even restrictions that were justified in the beginning — like those prohibiting mass gatherings — could be swept up.
“A mass gathering can easily overwhelm contact tracing at the county or state level,” Adalja said.
There is data that shows how the virus can spread in those settings.
“I am worried if you have mass gatherings — and people pack Heinz Field, you will get chains of transmission,” he said. “Mass gatherings are one thing that can spiral things out of control.”
Although Monday’s orders apply to state-level action, Adalja said municipalities and counties still have the ability to intervene for public health reasons — which means they can implement their own restrictions on crowd-sizes for gatherings.
Adalja said that in the future, county health departments can no longer be ignored — that they must be fortified with infectious disease doctors; contract tracers, infrastructure and funding.
“Stay-at-home orders were because of a failure to address those things,” he said. “We need to really think about this as we move forward for this pandemic and the next pandemic.”