PA Supreme Court Rejects Challenges to COVID-19 Business Shutdown

By: Brian J. Pulito, Nathaniel I. Holland

Published: April 15, 2020

On April 13, 2020 in Friends of DeVito v. Wolf, No. 68 MM 2020, the Pennsylvania Supreme Court issued a decision rejecting several challenges to Governor Wolf’s March 6 COVID-19 Disaster Proclamation and his subsequent March 19 Order shutting down businesses that are not deemed to be “life-sustaining.” Challengers were a political candidate committee, a licensed real estate agent, and a golf course that were not deemed to be “life-sustaining” under the Governor’s Order. The Supreme Court agreed to hear the petition and ultimately rejected all the challenges.

Petitioners first challenged the validity of the Governor’s Proclamation under the Pennsylvania Emergency Code, arguing that the COVID-19 pandemic did not qualify as a “natural disaster” and that the Governor did not have the authority to declare the entire Commonwealth a “disaster area.” The Supreme Court rejected that argument, holding that the COVID-19 pandemic is a disaster under the statute and given the widespread nature of the pandemic, the entire state is a disaster area.

Petitioners also brought five constitutional challenges to the Governor’s Order, contending that it violated the separation of powers, that it constituted a regulatory taking without just compensation, that it violated due process and equal protection, and that it violated the right to free speech and assembly.

The Supreme Court held that the Order did not violate separation of powers because it was authorized under the Emergency Code. The Court rejected the regulatory taking argument, citing federal cases for the position that a regulatory taking did not occur because of the temporary nature of the Governor’s Shutdown Order. The Court also rejected the Petitioners’ due process argument that the rapid spread of COVID-19 justified the lack of pre-deprivation notice and hearing, holding that the Governor’s waiver process provided adequate due process after the shutdown given the large number of requests, and the Court held that there was no right to appeal from a waiver decision. Last, the Court rejected the Equal Protection claim, holding that the Order did not discriminate in favor of sitting elected officials, because election activities cannot be performed in governmental offices and both public and municipal golf courses are deemed not life-sustaining under the Order, and also rejected the free speech claims because the Shutdown Order did not forbid telephonic or electronic communications.

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