By Matthew Santoni

Law360 (September 22, 2020, 7:05 PM EDT ) A Pennsylvania federal court on Tuesday denied Gov. Tom Wolf's request that it stay its ruling lifting the state's limits on gatherings during the COVID-19 pandemic, finding that the state did not show it would suffer "irreparable harm" if the limits were struck down pending an appeal.

U.S. District Judge William Stickman IV, who had ruled that the state's business closure orders and limits on outdoor gatherings were unconstitutional on Sept. 14, said Wolf and Secretary of Health Rachel Levine were unlikely to win on appeal to the Third Circuit and hadn't demonstrated that lifting the limits on gatherings would accelerate the spread of the pandemic.

"Defendants cannot reasonably claim that absent a stay there will be irreparable harm when they, themselves, have suspended the operation of the stay-at-home and business closure provisions and they, themselves, state that they have no intention of reinstating them, at least at this time," Judge Stickman wrote.

Though he denied the state's request for a stay, the judge issued his final order on the matter, which clears the governor to appeal the decision to the Third Circuit.

Several salons, two drive-in movie theaters, a furniture and appliance store, and a horse trainer joined elected officials and political candidates in May to challenge the state's restrictions, first imposed in March but since relaxed, which had shuttered some businesses and limited the size of gatherings. Judge Stickman said the restrictions violated freedom of assembly and equal protection rights, and the governor had no constitutional grounds to impose them as he did. Indoor occupancy limits for businesses were not part of the challenge and remained intact.

Wolf asked for a stay Sept. 17 pending an appeal, arguing that there was now a split between other federal and state courts over Pennsylvania's virus limits, and that the ongoing danger of the virus justified pausing the court's order.

But Judge Stickman said Tuesday that given the record in his court, an appellate panel was unlikely to reach a different decision, since the state hadn't shown how the restrictions based strictly on the number of people in a gathering were different from restrictions based on a percentage of a facility's full occupancy.

"It is critical to note that the court did not hold that defendants were powerless to enact limitations on gatherings. Rather, the court merely held that the First Amendment will not permit a specific numeric cap on some gatherings while imposing a limitation based on general occupancy on other gatherings," Judge Stickman wrote. "The court believes that, as to this issue, the defendants have not met their burden of establishing even the minimal showing of success on the merits."

Other cases where the state's limitations were upheld were procedurally or factually distinct enough to avoid a true conflict between the Western District of Pennsylvania and the Middle or Eastern districts, or the Supreme Court of Pennsylvania, the judge said.

Judge Stickman said he was unconvinced by the arguments that lifting the gathering limits would spread the virus, pointing to a settlement the state reached that allowed a flea market in Carlisle to have up to 20,000 attendees based on its facility's occupancy, or the state allowing ongoing, regular protests against police brutality that have been occurring throughout the state and country.

"Defendants' treatment of Spring Carlisle and the large public protests across the Commonwealth undermine their current argument that imminent and irreparable harm will occur absent their ability to impose numeric occupancy caps," the judge's order said. "The fully developed record offers no explanation or support for defendants' argument that people can gather in restaurants and businesses across the Commonwealth based on occupancy limitations, that Spring Carlisle can proceed based on occupancy limitations ... and that protests can occur with no limit (but encouraging masks and social distancing), but that the inability to cap some gatherings in some locations for some purposes will cause the super-spread of COVID-19 and lead to immediate and irreparable harm."

Since the state hadn't met its burden of showing it could succeed on appeal or would be harmed if the ruling were implemented, the court didn't have to weigh the balance of harms or the public interest, Judge Stickman said.

"We're very pleased to see the governor and health secretary's request to stay was denied — they want the courts to reinstate unconstitutional controls on 13 million Pennsylvanians affected by these orders," said Thomas King III, an attorney with Dillon McCandless King Coulter & Graham LLP representing the challengers.

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

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, and Greene County Solicitor Robert E. Grimm.

The state is represented by Josh Shapiro, Keli M. Neary and 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.

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

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