County of Butler, et al. v. Wolf, et al., No. 2:20-cv-677 (W.D. Pa.) Opinion entered September 14, 2020.

In the pipeline:  state officials will appeal the court’s decision and seek to freeze proceedings until appellate review has concluded. Motions for entry of judgment or certification of issues for appeal are pending, as is a motion for entry of stay pending appeal.  The brief of plaintiffs on the motion for stay pending appeal is due on September 21.  

Good intentions are not good enough to protect constitutional interests, the United States District Court for the Western District of Pennsylvania observes, and this may be especially so when emergency conditions invite extraordinary government action:

In an emergency, 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.

Slip op. 2.

The federal court reviewed emergency orders issued by the Pennsylvania governor and the secretary for health related to the COVID-19 virus using ordinary principles of review and found that the state’s limitations on assembly violate the First Amendment; that the stay-at-home and business closure orders violate the due process clause of the Fourteenth Amendment, and the the business closure components of the orders violate the Equal Protection clause of the Fourteenth Amendment.  

The governor signed a disaster emergency declaration on March 6, 2020, which activated emergency powers concerning commerce and health.

Groups of non-medical policy employees assembled by the governor divided businesses into “life sustaining” and “non life-threatening” businesses and drafted responses to questions from the public.

Schools were closed and stay-at-home orders issued.  Plans for reopening were developed along with capacity restrictions.  

Extensions and modifications of orders followed.

Counties, political persons, and businesses sued the state in May, 2020, challenging the orders on Takings Clause, Substantive Due Process, Equal Protection and First Amendment grounds.  

Following briefing, argument, and post-hearing briefing, on motions for declaratory judgment the court has concluded that: the assembly limitations violate the First Amendment; the stay-at-home and business closure orders violate the Due Process clause of the Fourteenth Amendment, and that the business closure orders violate the Equal Protection clause of the Fourteenth Amendment. 

First, the court concluded that plaintiff counties lack Article III standing to sue under 42 U.S.C. Section 1983 because this statute creates remedies, not rights, and as creations of the state, counties do not have constitutional rights.

Second, the court concluded that it need not apply relaxed or deferential standards of review to emergency measures.  Although states possess broad police powers, these powers cannot operate outside constitutional principles, the court reasoned, a position with which at least one Supreme Court justice agrees as do legal scholars.

The court found the abandonment of constitutional standards in emergency conditions particularly problematic where the emergency is ongoing and where mitigation restrictions are considered normative, and some want restrictions to remain in force indefinitely. 

The court recognizes that the exigencies of an emergency may require deference but not where the emergency has no stopping point:  

Faced with ongoing restrictions of indeterminate length, “suspension” of normal constitutional levels of scrutiny may ultimately lead to the suspension of constitutional liberties themselves. 

Slip Op. 19.

The judiciary, as an independent branch of government, must guarantee liberties even in an emergency.

Third, the court found that the open ended restraints on gatherings violate the First Amendment.  The restrictions apply to churches and some businesses, depending on the operation of capacity metrics.  There is no exception for protests but they have been permitted without compliance with restrictions.  

The court observed that the restrictions on assembly were content neutral, warranting intermediate scrutiny in which a regulation must be narrowly tailored to a significant government interest and leave ample alternative channels of communications.  

The open-ended and sweeping nature of the restrictions fail to survive this analysis, the court held.  In addition, they are categorically illogical, imposing fewer restraints in commerce than in other expressive settings, and no evidence supports the idea that the metrics chosen support the goal of diminishing disease.

Fourth, substantive due process rights were violated when the population was locked down and businesses deemed “non-life sustaining” were forced to close.  The court stressed that the issues are not moot because some restrictions have been relaxed, as the state’s orders remain vital and may spring back to life as the state wishes.  

The limitations imposed in quarantines require exposure to disease for a limited period of time.  That the wholesale societal lockdowns imposed by the state have no precedent will not make them unconstitutional, but because the orders impeded not only travel but associational rights, they are subject to, but cannot survive, strict scrutiny or even intermediate analysis.  

The lockdown orders impose far greater restrictions than necessary.  No one could go out except as approved by the state, an “inversion” of the American experience.  Where lockdown is the baseline for an indefinite period of time, no claim to narrow tailoring can be supported.

Fifth, where no rationale was even proffered for distinctions between life-sustaining and other businesses, the indefinite closure violates the Fourteenth Amendment due process clause.  These measures, which may spring to life from suspension at the government’s command, violate substantive due process as they arbitrarily interfere with the right to self support which is central to the personal freedom which was the purpose of the Fourteenth Amendment.  

The court wholly rejected the state’s “only temporary” argument, which was advanced to insist that there was no real damage caused by the shutdowns.  Even where suspensions were limited.  The measures cannot survive rational basis analysis.  The arbitrary creation, sweep, and administration of the order closing all “non-life sustaining” businesses is unconstitutional, having no fixed definitions and no temporal limitations.

Sixth, the business closure provisions of the orders violate the Fourteenth Amendment’s equal protection clause.  Determinations based on county boundaries or undefined notions of “life sustaining” enterprises are not rationally related to any legitimate government end.  Where it is undisputed that some businesses were treated differently from others, and even where distinctions based on county boundaries are constitutional, the “arbitrary, ad hoc” imposition of the “life sustaining” distinction was not subject to measurement, was inherently arbitrary, and conferred upon government sweeping powers over businesses effectively allowing government to determine which businesses would open and which would close.

Butler, et al. v. Wolf, et al., No. 20-cv-677 (W.D. Pa.)

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