By Matt Fair

Law360 (September 14, 2020, 3:11 PM EDT ) A Pennsylvania federal judge on Monday struck down emergency business closure and crowd size restrictions imposed by Gov. Tom Wolf started in the spring in a bid to help curb the ongoing spread of COVID-19.

U.S. District Judge William Stickman IV sided with a group of businesses, as well as a handful of GOP lawmakers, who filed suit in May alleging that Wolf's restrictions violated freedom of assembly and due process protections under the First Amendment and Fourteenth Amendment.

"The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble," the judge said. "There is no question that this country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the America experiment."

Wolf mandated the closure of non-life-sustaining businesses and inked broad stay-at-home orders in mid-March as the novel coronavirus began spreading in earnest across Pennsylvania. Since then, however, his administration has slowly eased restrictions on a county-by-county basis over the past weeks and months as the number of new cases has gone down.

But even as many restrictions have been rolled back, Judge Stickman said in his decision Monday that the governor, even if he had been well intentioned, had no constitutional grounds to have imposed the restrictions in the first place.

"Good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge," the judge said. "Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good — especially in a time of emergency."

While many of the restrictions involved in the litigation have since been rolled back, the ruling did strike down ongoing limits on crowd sizes.

Unaffected by the ruling, however, are ongoing occupancy limits for businesses, which were not challenged as part of the case.

Thomas King III, an attorney with Dillon McCandless King Coulter & Graham LLP representing the challengers, praised the decision in an interview with Law360 on Monday afternoon.

"I thought the judge did a marvelous job of addressing the facts as they were presented to him in the case, and of applying the law in a very logical way to arrive at what we consider to be a complete victory for the plaintiffs in this case," he said.

The Wolf administration vowed on Monday afternoon to seek a stay of the decision and pursue an appeal to the Third Circuit.

"The actions taken by the administration were mirrored by governors across the country and saved, and continue to save lives in the absence of federal action," gubernatorial spokeswoman Lyndsay Kensinger said in a statement. "This decision is especially worrying as Pennsylvania and the rest of the country are likely to face a challenging time with the possible resurgence of COVID-19 and the flu in the fall and winter." 

About a month after issuing his emergency shut-down orders in March, the governor's office issued a plan for a three-phased reopening system that would allow restrictions to be lifted as COVID-19 case counts fell in individual counties.

Each county initially started in the red phase, which was the most restrictive, and was eventually allowed to progress into yellow and green phases over the following months.

But businesses including several salons, two drive-in movie theaters, a furniture and appliance store and a horse training business alleged in a complaint in May that the approach violated their equal protection rights because some counties or businesses were allowed to stay open or reopen sooner than others.

A group of elected officials and political candidates, meanwhile, claimed their First Amendment rights were being violated as a result of crowd size limits that impeded their ability to campaign.

While the governor's office argued that the danger posed by the virus required that his orders be treated with deference, Judge Stickman said the "ongoing and indefinite nature" of the restrictions weighed against such an approach.

"What were initially billed as temporary measures necessary to 'flatten the curve' and protect hospital capacity have become open-ended and ongoing restrictions aimed at a very different end — stopping the spread of an infectious disease and preventing new cases from arising — which requires ongoing and open-ended efforts," he said.

He noted that the governor's office maintained during the litigation it had the authority to reinstate rolled back restrictions as conditions change with regard to the spread of the virus.

"The record shows that defendants view the presence of disease mitigation restrictions upon the citizens of Pennsylvania as a 'new normal' and they have no actual plan to return to a state where all restrictions are lifted," the judge said.

He said applying an ordinary level of scrutiny to the restrictions under the current circumstances would not necessarily prevent the government from taking what he called "extraordinary actions" in the future when faced with new emergencies.

"Using the normal levels of constitutional scrutiny in emergency circumstances does not prevent governments from taking extraordinary actions to face extraordinary situations," he said. "Indeed, an element of each level of scrutiny is assessing and weighing the purpose and circumstances of the government's act. The application of normal scrutiny will only require the government to respect the fact that the Constitution applies even in times of emergency."

King said that, for him, the dispute came down to one of personal choice versus governmental mandate.

"This order is all about individual choices and individual freedoms," he said. "If people feel that it's important for them to stay home, they have every right to do that. We didn't contest the fact that the virus was serious and that there were certain measures that needed to be taken to protect people's health; what we did contest was that the measures that were taken violated the U.S. Constitution and today Judge Stickman agreed with us."

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 Matthew Santoni. Editing by Stephen Berg.

Update: This story has been updated to include comment from both an attorney for the challengers, and from the governor's office.

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