By Matthew Santoni

Law360 (November 19, 2020, 5:53 PM EST ) As COVID-19 cases surge again in Pennsylvania, Gov. Tom Wolf told the Third Circuit that a Pittsburgh federal judge made substantial mistakes when he struck down some of the state's virus-related limits on businesses and public gatherings.

In their brief late Wednesday appealing U.S. District Judge William Stickman's September ruling in favor of businesses and politicians fighting the restrictions, Wolf and Secretary of Health Rachel Levine said the lower court relied heavily on the largely abandoned "economic liberty" approach to substantive due process claims, ignored the state's authority to protect residents from the pandemic, and incorrectly interpreted limits on the size of gatherings as restrictions on the freedom of association.

"With all due respect, the district court lost sight of the nature of this novel coronavirus, the manner in which it is spread, and the dynamics of combating a deadly pandemic. Accordingly, the district court's decision, if allowed to stand, will cost lives," the brief said. "In the district court's view ... appellees' desire to be unrestrained during a pandemic outweighs the public's interest in fighting its spread. That absolutist view was flatly rejected by the United States Supreme Court more than a century ago and that remains the law."

Wolf noted that COVID-19 cases were on the rise nationwide, with Pennsylvania reporting nearly 6,000 new infections per day as of mid-November. Though most of the restrictions and closures in the original lawsuit had been lifted by the time of Judge Stickman's decision, Wolf said the state may have to consider further mitigation efforts as the pandemic surges again.

Businesses, including salons, two drive-in movie theaters, a furniture and appliance store, and a horse trainer, claimed in a complaint in May that the state's orders temporarily closing "non-life-sustaining" businesses violated their equal protection rights because some counties or businesses were allowed to stay open or reopen sooner than others. Several candidates for office claimed the gathering limits hobbled their ability to campaign and fundraise.

Judge Stickman ruled in their favor in September, saying what were billed as temporary measures had become "ongoing and indefinite," and that "the solution to a national crisis can never be permitted to supersede the commitment to individual liberty." He struck down the remaining restrictions like crowd limits.

A large portion of Wolf's 71-page brief contrasted Judge Stickman's reliance on the U.S. Supreme Court's 1905 decision in Lochner v. New York — a case the brief said had been largely abandoned and undercut by subsequent rulings — with the justices' ruling just months before Lochner in Jacobson v. Massachusetts , which had established states' power to place some restrictions on absolute liberty in the name of public health. Unlike Lochner, the Jacobson precedent had not fallen out of favor and had even been cited by the Supreme Court in recent pandemic-related cases, Wolf said.

"The [Jacobson] court enunciated why individual liberty cannot be absolute, but is instead subject to the common good and the liberty interests of others," Wolf's brief said. "Given the stark reality that the commonwealth faced at the outset of the pandemic — and faces yet again — temporary closure of appellees' physical business locations and the gathering restrictions were in the public's interest and were reasonably necessary to protect that interest."

Wolf said state officials had a rational basis for closing "non-life-sustaining" businesses and choosing who fell into that category based on the businesses' own self-classification under the North American Industry Classification System. Just because the businesses challenging the practice and the court said they would have made the policy differently did not mean the policy wasn't rational, the brief said.

"The district court incorrectly inserted its own opinion as to where the line should have been drawn between life-sustaining and non-life-sustaining," the brief said. "The Supreme Court has admonished that rational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.'"

As for the limits on crowd sizes, Wolf's brief said the court was incorrect in even concluding they implicated First Amendment rights because the restrictions were not placed on anyone's "expression," only their numbers.

"These public health orders regulated the size of crowds; they did not regulate what people may say or do, or with whom they may associate, when in these crowds," the brief said. "They also did not single out those that engaged in expressive activities. These orders applied to concerts, movies, baseball games, and picnics alike. The district court should never have applied First Amendment scrutiny to these public health laws of general applicability."

Counsel for the challengers declined to comment Thursday, and representatives of the state did not immediately respond to requests for comment.

Wolf and Levine are represented by Josh Shapiro, J. Bart DeLone, Claudia M. Tesoro, Sean A. Kirkpatrick and Daniel B. Mullen of the Pennsylvania attorney general's office.

The challengers are represented by Thomas W. King III, Ronald T. Elliott, Thomas E. Breth and Jordan P. Shuber of Dillon McCandless King Coulter & Graham LLP.

The case is County of Butler et al. v. Governor of Pennsylvania et al., case number 20-2936, in the U.S. Court of Appeals for the Third Circuit.

--Additional reporting by Matt Fair. Editing by Adam LoBelia.

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