In Friends of Danny DeVito v. Wolf,—- A.3d—-, 66 MM 2020 (Pa. Apr. 13, 2020) (no, not that Danny DeVito), the Pennsylvania Supreme Court, after exercising its seldom-used “King’s Bench” power to hear an important case immediately instead of waiting for it to wind its way through the lower Pennsylvania state courts, brushed aside a second challenge to Pennsylvania Governor Tom Wolf’s Executive Order (the “Order”) compelling the closure of the physical operations of all non-life-sustaining businesses in Pennsylvania in order to reduce the spread of COVID-19, and upheld the Governor’s power to determine which businesses are life-sustaining and which are not.
Prior to the DeVito case, the Pennsylvania Supreme Court, exercising its King's Bench power in Civil Rights Defense Firm, P.C. v. Wolf,—- A.3d—-, No. 63 MM 2020 (Pa. Mar. 22, 2020), rejected claims by a gun shop and others, and held that the Order does not violate the Second Amendment and similar Pennsylvania constitutional provision, is not unconstitutionally vague and arbitrary, and does not exceeds the statutory powers of the Governor. However, in that prior case, the Court did not provide any reasoning for its decision.
In DeVito, the Court rejected many of the same claims, along with additional ones, but this time provided in-depth reasoning for its decision. First, the Court upheld the Governor’s power to issue the Order under the Pennsylvania Emergency Management Services Code (the “Emergency Code”), holding that the COVID-19 pandemic qualifies as a disaster emergency under the statute. This is exactly what I argued in an opinion piece published on March 20, 2020. However, I did not opine on whether the Order is constitutional or not.
The DeVito Court next considered the first of the plaintiffs' constitutional arguments, that the Order violates the separation of powers doctrine. The Court held that executive orders are constitutional if they are intended to execute executive branch duties or interpret statutory or other law. Since the General Assembly granted broad powers to the Governor through promulgation of the Emergency Code, including the power to issue executive orders relating to disaster emergencies, including those controlling ingress and egress, the Court held that the Order did not violate the Separation of Powers Doctrine.
The Court in DeVito also held that the Executive Order did not constitute a taking of property without just compensation in violation of the Fifth Amendment to the U.S. Constitution. The Court held that just compensation is not necessary where the regulation of property involves the exercise of the Commonwealth’s police power. Important to the Court’s decision was the fact that the interference with property rights is temporary and will last only as long as the COVID-19 pandemic and accompanying disaster emergency. Thus, the Court held, where regulation of property is for the purpose of protecting the health and well-being of the citizens of the Commonwealth, and is only temporary, a taking has not occurred and just compensation is not required.
The DeVito Court then rejected claims that the Order violates the right to due process under the Fourteenth Amendment of the U.S. Constitution and the analogous provision of the Pennsylvania Constitution. The Petitioners first argued that they were entitled to but were not provided with notice and an opportunity to be heard before being placed on the list of non-life-sustaining businesses. The Court rejected this argument, holding that pre-deprivation process was not required under the emergency circumstances presented by the COVID-19 pandemic. The Court went on to hold that although post-deprivation process is constitutionally required, the wavier process, whereby a business can request to be re-classified as a life-sustaining business, constituted sufficient post-deprivation process under the circumstances, even though the Governor did not provide the applicable standards for determining whether a business should be reclassified and did not provide the ability to present or cross-examine witnesses. Lastly, the Court rejected the argument that the Order is unconstitutional because it provides no right to appeal from the Governor’s refusal to grant a waiver. The Court held simply that the Pennsylvania Constitution affords no right to appeal from the Governor’s decisions, as opposed to decisions from Commonwealth agencies. Interestingly, the Court ignored the question of whether the Fourteenth Amendment of the United States Constitution requires the right to an appeal under such circumstances. Moreover, the Court did not address (because it was not at issue) whether a hearing would be required if a business were fined but believed it was misclassified; in which case I believe the business would have a right to appeal the citation under regular state criminal or adminstrative procedures.
Next, the DeVito Court rejected the Petitioner’s equal protection claim. According to the Supreme Court, although the Fourteenth Amendment's Equal Protection Clause, and the analagous Pennsylvania constitutional provision, require all similarly situated persons be treated alike, it does not require them to be treated identically. Mr. DeVito, a candidate for public office, wanted to keep his campaign office open. He argued that he should be able to do so if his political opponent, an incumbent government official, was permitted to keep open his government office, and if social advocacy groups were permitted to do so. The Court rejected the argument that a political campaign office and a government office or social advocacy group office are similarly situated.
Finally, the Court in DeVito held that the Order does not violate the Petitioners’ First Amendment right to peacefully assemble and to hold meetings to engage in speech and advocacy. The Court held that based on long-standing U.S. Supreme Court precedent, the constitutional right to free speech and assembly is not absolute and that states may place content neutral time, place and manner regulations on them. The Court explained that the Order does not prohibit supporters of Mr. DeVito from assembling (preferably via telephone, video-conferencing, or other remote means), and instead only forbids such assembly in the physical campaign office. Moreover, the Court held that the Order does not violate the First Amendment because it is “tailored to meet the exigencies of COVID-19” through “restricting in-person gatherings to promote social distancing” and it does not regulate any speech or assembly based upon its content and is instead “content neutral”. Although I agree with Professor Eugene Volokh that the Court was wrong to hold that the restriction does not impinge upon the right to free assembly, I also agree with him that the restriction would nonetheless be upheld under a “strict scrutiny” analysis since it “is narrowly tailored to a compelling government interest in preventing many deaths from communicable disease ... and the availability of alternative means to speak, however imperfect they may be as substitutes for assembly, is one element that makes it narrowly tailored.”
Given the Pennsylvania Supreme Court’s decisions in the two aforementioned cases, it appears that any challenges to the Order filed in Pennsylvania state courts are doomed to failure. However, there remains at least one other challenge, which was filed as a class action lawsuit in the United States District Court for the Eastern District of Pennsylvania, a federal court. In Schulmerich Bells, LLC v. Wolf, Case No. 2:20-cv-01637 (filed March 26, 2020), the plaintiffs argue that the Order violates the Fifth Amendment’s Takings Clause, that the Order’s classification of businesses as life-sustaining or non-life-sustaining is arbitrary in violation of the Fourteenth Amendment’s Due Process Clause, and fails to provide a meaningful way to challenge the classifications in violation of the Due Process Clause. It is important to note that the federal court will not be bound by the prior decisions of the Pennsylvania Supreme Court on these issues. However, since the plaintiffs in Schulmerich Bells do not seek any type of emergency relief, it is likely that resolution of the case will take several months or longer.