Wolf Business Closure Order Challenged in PA Supreme Court
A political candidate, a licensed real estate agent and the operators of a public golf course and restaurant filed an Emergency Application with the Supreme Court challenging the Governor’s Executive Order which prohibited non-life sustaining businesses from continuing operations at their physical locations during the pandemic. The Court’s Opinion in the case known as Friends of Danny Devito, et al. v. Tom Wolf, Governor, et al. 68 MM 2020 was issued on April 13th and is summarized below.
The cities of Philadelphia and Pittsburgh filed amicus briefs in support of the Governor, the Secretary of Health and the Governor’s Executive Order. The Pennsylvania Association of Realtors filed an amicus brief arguing that it provides vital, life-sustaining services to millions of Pennsylvania residents. Amicus briefs were also filed by the Home Builders Association of Bucks and Montgomery Counties and the Home Builders Association of Chester and Delaware Counties.
The Petitioners challenge the applicability of the Emergency Code to a viral illness like COVID-19 and argue that even if it does apply, the Governor does not have the power to close Petitioners’ businesses. The Emergency Code defines a disaster as “man-made disaster, natural disaster or war-caused disaster.” Natural disaster is further defined as “hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.”
The Petitioners specifically argue that COVID-19 does not meet the definition of a disaster under the Code and the Court must therefore resort to the principles of statutory construction. Although the definition contains the phrase “other catastrophes”, the Petitioners argued that because a viral illness is not included on the list it cannot be a natural disaster because it is not of the same type or kind as other disasters on the list. This doctrine is referred to as the doctrine of ejusdem generis which means “of the same kind or class”.
The Supreme Court rejected this argument saying that the specific disasters in the definition lack commonality as some are weather related and others are not. The only commonality is that they all involve “substantial damage to property, hardship, suffering or possible loss of life.” In that respect, COVID-19 is of the same general nature as those enumerated and should therefore be included and not excluded.
The Court held that when there is a disaster, the Code gives the Governor the power to “control ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein.” Petitioners argued that there were no disasters in the areas where the businesses in question are located. The Court held that this argument ignored the fact that there are COVID-19 cases in the counties involved and the way in which COVID-19 is spread. “Thus, any location (including Petitioners’ businesses) where two or more people can congregate is within the disaster area.”
Petitioners also argued that the Governor and the Secretary of Health exceeded their police powers when they closed all non-life sustaining businesses. Specifically, petitioners argued: the public interest is not being served because the public has an interest in continuing to receive goods and services of business; closure of their business was unnecessary because the disease was not detected at their place of business; and closing their business was unduly burdensome because their business cannot function anywhere but from their physical place of business.
The Court found that the Petitioners could not prevail on these arguments either. The only mitigation tool available to suppress the transmission of the disease is the enforcement of social distancing. The “policy choice in this emergency was for the Governor and the Secretary to make and so long as the means chosen to meet the emergency are reasonably necessary for the purpose of combating the ravages of COVID-19, it is supported by the police power.”
Finally, Petitioners argued that: the Executive Order violates the separation of powers doctrine; constitutes a taking requiring just compensation; Petitioners were not accorded procedural due process in the compilation of the list of life-sustaining businesses or in the waiver process and that they are both arbitrary, capricious and vague; it violates equal protection principles; and it interferes with the candidates right to free speech and assembly. The Court rejected each of these arguments in turn and specifically found that the waiver process provides sufficient due process under the circumstances.
A copy of both opinions can be reviewed on the Pennsylvania Supreme Court website.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.