By Matthew Santoni

Law360 (May 29, 2020, 8:37 PM EDT ) A group of southwestern Pennsylvania counties, businesses and elected officials will get a speedy hearing on their claims that Gov. Tom Wolf's COVID-19 shutdown orders violated certain constitutional rights, a Pittsburgh federal judge ordered.

U.S. District Judge William S. Stickman granted a petition for an expedited hearing on the plaintiffs' claims that Gov. Wolf's orders closing "non-life-sustaining" businesses while granting some businesses waivers to stay open violated their constitutional rights to substantive due process, equal protection and First Amendment rights to assemble.

"The First Amendment enshrines the most fundamental rights held by a free people. Expedited review of alleged ongoing infringement of those rights is certainly warranted," Judge Stickman wrote in his opinion and order Thursday. "Moreover, violations of substantive due process and equal protection that interfere with important or fundamental rights, including the right to operate a legitimate business and/or earn a living, are serious deprivations that could, as plaintiffs argue, cause continuing, ongoing and perhaps irreparable harm. Expedited review of alleged ongoing infringement of those rights is certainly warranted."

Judge Stickman gave the parties until June 1 to submit a status report on areas of agreement and disagreement over discovery and what they would be willing to stipulate to, along with whether they wanted to hold an evidentiary hearing or proceed on briefs and oral argument.

The suit was filed May 7 against Gov. Wolf and Pennsylvania Department of Health Secretary Rachel Levine. The counties of Butler, Fayette, Greene and Washington, Republican U.S. Rep. Mike Kelly, several Republican Pennsylvania state house members, a hair salon, a drive-in movie theater, and other businesses and individuals sought declaratory judgments that the state's orders, intended to slow the spread of the coronavirus pandemic, had violated their constitutional rights and should be overturned.

The plaintiffs sought an expedited review of their declaratory judgment case under Rule 57 of the Federal Rules of Civil Procedure, though Judge Stickman only granted review on three of their five claims.

Pennsylvania's Supreme Court had ruled in the governor's favor in a similar lawsuit filed directly to the state's highest court, and the U.S. Supreme Court had denied a stay of the shutdown order, but Judge Stickman said the state's familiarity with the issues and the parties' declarations that they would not need lengthy discovery or depositions meant fast-tracking the current federal case in the district court would not prejudice the state.

"While this case is distinct, there is overlap with other cases where defendants and their counsel have been able to mount a more than adequate defense on an even shorter timetable," the judge wrote. "While defendants will not be materially prejudiced by expedited proceedings, if plaintiffs have correctly alleged constitutional violations, they will be unquestionably prejudiced if these proceedings are not expedited."

Because the plaintiffs' First Amendment, substantive due process and equal protection claims were all ongoing deprivations, Judge Stickman ruled that declaratory judgment was an appropriate remedy, which allowed the plaintiffs to seek a speedy hearing on those issues.

On the claim that the closure order was such a substantial disruption to their businesses that it functioned as a taking without compensation in violation of the Fifth Amendment, Judge Stickman said the U.S. Supreme Court's 2019 ruling in Knick v. Township of Scott, Pennsylvania allowed the plaintiffs to skip state-court remedies and seek relief in federal court. But that ruling had also barred plaintiffs from seeking injunctive relief for takings as opposed to seeking proper compensation.

"Here, the declaratory relief sought by plaintiffs — that the governor's business shutdown orders effectuated an unconstitutional taking — would be the functional equivalent of injunctive relief," the judge's opinion said. "Plaintiffs may have a remedy for the takings that they allege, but declaratory relief is not the appropriate avenue to pursue it."

The judge also rejected the procedural due process claim that there was no fair method of getting waivers for "non-life-sustaining" businesses to stay open, finding that the application process was closed and no new waivers were being granted. Since the due-process violations by the waiver program were in the past, a declaratory judgment wasn't the right way to challenge them, he wrote.

"Plaintiffs are seeking … a declaration from the court that defendants' prior conduct in the manner in which they gave or withheld waivers violated constitutional rights," Judge Stickman wrote. "Those violations are in the past, even if the damages incurred from the denial of a waiver may be ongoing."

Judge Stickman said that the gradual relaxation of the restrictions, with parts of the state moving from the most restrictive "red" phase to "yellow" earlier in May, did not make the lawsuit moot, since the yellow and green phases still had limitations on how businesses could operate and how many people could gather in one place.

Although the governor announced Friday that the four counties in the lawsuit were among those that would move to the state's green phase on June 4, the ongoing restrictions still gave the plaintiffs fuel for the suit, plaintiffs' attorney Thomas W. King III of Dillon McCandless King Coulter & Graham LLP told Law360 Friday.

"There are continued restrictions even in the 'green' phase, and there's no phase beyond 'green,' which means our case will continue," he said.

Representatives of the governor's office did not immediately respond to requests for comment Friday.

The plaintiffs are represented by Thomas W. King III, Ronald T. Elliott, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP, and Greene County Solicitor Robert E. Grimm.

The state is represented by Karen M. Romano of the state Attorney General's Office.

The case is County of Butler et al. v. Wolf et al., case number 2:20-cv-00677, in the U.S. District Court for the Western District of Pennsylvania.

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