This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

 On September 14, 2020, the Honorable William S. Stickman, IV of the Western District of Pennsylvania entered judgment that Governor Wolf’s “stay at home” order and the order closing “non-life-sustaining” businesses for months (“business shutdown”) are unconstitutional in County of Butler, et al. v. Thomas W. Wolf, et al., Civil Action No. 2:20-cv-677, 2020 U.S. Dist. LEXIS 167544 (W.D. Pa. Sept. 14, 2020).

Governor Wolf promptly moved for a stay of the order.  That motion was denied by Judge Stickman on September 22, 2020.  The Wolf administration plans to appeal from the order.  On October 1, 2020, the Third Circuit granted a stay pending appeal.

Although the opinion and order in the County of Butler do not directly implicate the Right to Know Law, it is relevant to persons challenging RTKL denials or delays based upon the stay-at-home and business shutdown orders.  For that reason, we summarize County of Butler here.

Background:   The Plaintiffs are Butler County, Pennsylvania, three other counties in Western Pennsylvania, four individuals campaigning for political offices in Pennsylvania, and two hair salons and two drive-in movie theater businesses as well as their owners.  Plaintiffs filed a complaint on May 7, 2020, seeking a declaratory judgment that Governor Wolf’s “stay-at-home” and “business shutdown” orders violated their constitutional rights, and on May 20, 2020 moved for speedy hearing of the action pursuant to Fed. R. Civ. P. 57.

Analysis:  The Court began by dismissing the claims asserted by the county Plaintiffs, on the ground that the counties are political subdivisions created by the Commonwealth and, as such, cannot sue for violations of Constitutional rights. However, the individual political candidates, and the businesses and their proprietors, on the other hand (“private Plaintiffs”), may do so.

The claims by the private Plaintiffs fall into three categories:  1) violations of the First Amendment arising from the limitations on gatherings; 2) Fourteenth Amendment substantive due process violations arising from the both the stay-at-home order and the business shutdown order, and; 3) violations of the Equal Protection Clause of the Fourteenth Amendment arising from the business shutdown order.

The opinion notes that the Pennsylvania Supreme Court found the business shutdown order to be constitutional under the Pennsylvania and federal constitutions in Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020), cert. filed, (Apr. 27, 2020), stay denied, 206 L. Ed. 2d 930 (U.S., May 6, 2020), but a federal court is not bound by state court precedent on federal questions, including federal constitutional questions.  Accordingly, the Court addressed the constitutional issues on the merits.

• Standard of Review.  The right to peacefully assemble and the right of free speech have long been treated the same by the federal courts; both have been analyzed using the intermediate scrutiny standard.  Thus, intermediate scrutiny was applied to the stay-at-home order.  With regard to the business shutdown order, the Court observed that strict scrutiny could have been applied, because the order prohibited interstate travel, which is “of the very essence of a scheme of ordered liberty….”  Slip op. at 46.

However, the Court found the business shutdown order to be unconstitutional, even under intermediate scrutiny.  Intermediate scrutiny, which is typically applied to First Amendment free speech cases, look to determine whether the restraint at issue is 1) content-neutral; 2) necessary to serve a compelling state interest, and; 3) narrowly tailored to meet that compelling state interest.

• Mootness.  Defendants’ argument that this matter is moot because the state is now in the “green” phase and the stay-at-home and business shutdown orders are no longer in effect was firmly rejected by the Court.  Plaintiffs’ position is that the orders have not been lifted or terminated pursuant to their terms, but have merely been suspended, and testimony from Defendants clearly indicates the Wolf administration’s intent to reinstate them at any time they deem necessary.  As has been held in other cases, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000)).
• The Stay-at-Home order.  The Court concluded that the stay-at-home order is content-neutral, because the plain language of the order does not make a distinction between gatherings  based upon the type or types of communication they are intended to enable.  Moreover, no one denies that attempting to control the spread of COVID-19 is a compelling state interest.  But the order fails constitutional scrutiny because it is not narrowly tailored to achieve its purpose, namely, “flattening the curve”.  For example, the stay-at-home order applied to all Pennsylvanians, whether exposed to COVID-19 or not, and thus was not a “quarantine” as that term is used. The Court contrasted this situation with quarantines imposed during other epidemics, including the 1918 influenza epidemic, which were limited both in scope and duration, and noted that the stay-at-home lockdown order and others like it in other states “are unprecedented in the history of our Commonwealth and our Country.”  Slip op. at 4.
• Substantive Due Process.  The Court traced the history of the Fourteenth Amendment, and showed that the ability to earn a living free of governmental interference is the core of the protection provide by that Amendment.  Under both orders, the ability to earn a living is severely impacted by the restrictions on travel and on which businesses may continue to operate at all.  Those restrictions would have violated liberty interests even if they were temporary, and had already permanently ended; as noted previously, those restrictions can still be reinstituted at any time.

In addition, the distinction between “life-sustaining/non-life-sustaining” businesses that is the core of the business shutdown order violates the Equal Protection Cause of the Constitution because it is arbitrary.  The Governor’s policy team never had a specific definition or criteria to distinguish “life-sustaining” from “non-life-sustaining” businesses, and the list of “life-sustaining” businesses continued to fluctuate while the system was in place.  Worse still, after the waiver process closed on April 3, 2020, a business that was wrongly classified as “non-life-sustaining” under some version of the list no longer had any means to seek a change in its status that would permit it to reopen.

Defendants claimed that they used the North American Industry Classification System (“NAICS”) manual to develop their classification, but the purpose of NAICS is simply to permit federal agencies to classify businesses “for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy.”  NAICS does not make any distinction between “life-sustaining” and “non-life-sustaining” businesses, and does not even contain those terms in its manual.  Slip op. at 56.

The arbitrariness of the “life-sustaining” versus “non-life-sustaining” classification is further shown by its effects.  For example, evidence presented in this case shows that many “non-life-sustaining” businesses, such as R.W. McDonald & Sons, a small appliance and furniture store, were forced to close, while larger businesses carrying the same products, such as Lowes, Home Depot, and Walmart, were deemed “life-sustaining” and were permitted to continue to operate.  Slip. op as 60.

Bottom Line:  The stay-at-home order is unconstitutional because it burdens the rights of large numbers of people statewide and may be reinstituted pursuant to its terms at any time, without limitation.  The business shutdown order also may be reinstituted, and in addition randomly terminates the right of certain persons to pursue their chosen means of earning a living on the basis of an arbitrarily created and undefined distinction between “life-sustaining/non-life-sustaining” businesses.    It is already clear that this case will be appealed to the Third Circuit and, because the stakes are high for the parties concerned, the U.S. Supreme Court may well be asked to rule on these constitutional issues.