Pennsylvania Gov. Tom Wolf. Photo: George Sheldon/Shutterstock.com

The Pennsylvania Supreme Court has used its King's Bench power to reject an emergency application for extraordinary relief seeking to invalidate Gov. Tom Wolf's executive order that shut down the physical operations of all "non-life-sustaining" business in response to the COVID-19 epidemic.

In Friends of Danny DeVito v. Wolf, the justices ruled 4-3 on April 13 to deny the plaintiffs' request to vacate or strike the executive order.

The plaintiffs—Friends of Danny DeVito (the campaign committee for state representative candidate Danny DeVito); Kathy Gregory; B&J Laundry; Blueberry Hill Public Golf Course & Lounge; and Caledonia Land Co.—argued that that the executive order violates the separation of powers doctrine and constitutes a taking requiring just compensation. They also argued that they were not afforded due process in the formation of the list of life-sustaining and non-life-sustaining businesses or in the waiver process, both of which they alleged were arbitrary, capricious and vague. In addition, the plaintiffs argued that Wolf's order violated equal protection principles and that it interfered with the DeVito committee's right of free speech and assembly.

With regard to the separation of powers argument, Justice Christine Donohue, writing for the majority, said the Emergency Management Services Code specifically gave Wolf the power to issue executive orders and proclamations that will have the full force of law. Those orders include declaring a disaster emergency and controlling the "'ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein,'" added Donohue, joined by Justices Max Baer, Debra Todd and David Wecht.

The majority also rejected the plaintiffs' argument that Wolf's order constituted a regulatory taking.

"The executive order results in only a temporary loss of the use of the petitioners' business premises, and the governor's reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to 'protect the lives, health, morals, comfort, and general welfare of the people,'" Donohue said, citing language from the U.S. Supreme Court's 1905 ruling in Manigault v. Springs, adding, "Moreover, the public health rationale for imposing the restrictions in the executive order, to suppress the spread of the virus throughout the commonwealth, is a stop-gap measure and, by definition, temporary."

With regard to the due process argument, Donohue again noted that Wolf's executive order is only temporary.

"While the private interest, the closure of the business, is important, the risk of erroneous temporary deprivation does not outweigh the value of additional or substitute safeguards which could not be provided within a realistic timeframe," Donohue said.

In addition, Donohue rejected the plaintiffs' argument that they're entitled to judicial review of the Department of Community and Economic Development's decision to not to grant them waivers to the categorization of "non-life-sustaining businesses."

"While it is clear that specific requests are reviewed by employees of the DCED, the decision to grant the waiver was that of Governor Wolf and [co-defendant Pennsylvania Department of Health] Secretary [Rachel] Levine and was not an administrative adjudication of the DCED," Donohue said, adding, "Neither the governor nor the secretary is an 'administrative agency.' Because Article V, Section 9 does not confer a right of appeal from an executive decision of the governor or the secretary, no right of appeal lies in this instance."

Regardless, undertaking such a review of the waiver process would be a "near impossibility" under the current circumstances, given the "massive" staffing and technological resources it would require, Donohue noted.

"Under the circumstances of an ongoing disaster emergency, a full evidentiary proceeding is not a viable post-deprivation procedural process," she said.

Donohue also waived off the plaintiffs' equal protection arguments, noting that the DeVito committee's offices are not similarly situated to legislative offices that remain open, nor are they similarly situated social advocacy groups that advocate on behalf of vulnerable individuals during disasters. Donohue added that Blueberry Hill's argument that it was being treated differently than municipal golf courses also failed because many municipal golf courses have closed in an effort to mitigate the spread of COVID-19.

As for the plaintiffs' First Amendment arguments specifically regarding the DeVito committee's right to free speech and assembly, Donohue said Wolf's executive order does not prohibit DeVito's supporters from communicating. It simply prohibits them from gathering at the committee's offices, Donohue explained.

"The executive order is tailored to meet the exigencies of COVID-19 restricting in-person gatherings to promote social distancing. It does not otherwise prohibit alternative means of communication or virtual gathering," Donohue said.

Chief Justice Thomas Saylor, joined by Justices Kevin Dougherty and Sallie Updyke Mundy, penned a concurring and dissenting opinion arguing that the court should not have exercised its King's Bench powers to dispose of the plaintiffs' petition.

"In summary, in my considered judgment, the matters raised in the emergency application for extraordinary relief—especially those related to alleged inconsistency and arbitrariness in the waiver process—should be left to the Commonwealth Court, in the first instance, as the court of original jurisdiction invested with fact-finding capabilities," Saylor said.

Saylor also said the majority opinion "allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch's determination of which businesses must close and which must remain closed."

A spokesperson for Wolf's office could not immediately be reached for comment.

Counsel for the plaintiffs, Marc Scaringi of Scaringi Law in Harrisburg, said he took particular issue with the majority's finding that the waiver process is not subject to judicial review because of the COVID-19 emergency.

"That, to me, is frightening," Scaringi said. "We have judicial review even in wartime."

He said he and his clients are reviewing the opinion to determine a possible next step. One option, Scaringi said, is to go back to the Commonwealth Court. The other, he said, is to request a stay from the U.S. Supreme Court since the case involves allegations of several violations of the U.S. Constitution.

Wolf's order is already facing a similar challenge in federal court. In late March, Bucks County-based handbell production company Schulmerich Bells and several recently laid-off employees filed a class action lawsuit in the U.S. District Court for the Eastern District of Pennsylvania. The suit raises substantive and procedural due process claims under the 14th Amendment, and argues that Wolf's order constitutes an uncompensated seizure in violation of the Fifth Amendment.

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