By Angela Couloumbis of Spotlight PA, Jeremy Roebuck of The Philadelphia Inquirer and Sarah Anne Hughes of Spotlight PA
Delivering a blow to Gov. Tom Wolf’s strategy for responding to the coronavirus pandemic, a federal judge on Monday ruled that key components of the governor’s mitigation strategy are “unconstitutional,” including the decision to temporarily shut down businesses and limit how many Pennsylvanians can gather in one place.
“The court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus,” U.S. District Judge William S. Stickman IV wrote in the 66-page ruling. “But even in an emergency, the authority of government is not unfettered. 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.
Stickman found that the Wolf administration’s policy limiting indoor and outdoor gatherings to 25 and 250 people, respectively, violates “the right of assembly enshrined in the First Amendment.”
The Pittsburgh-based judge also found Wolf and Health Secretary Rachel Levine’s stay-at-home and business closure orders to be unconstitutional. Health experts widely considered temporary shutdowns and limits on business operations to be necessary in order to slow the spread of COVID-19 and keep hospitals from becoming overwhelmed.
It was not immediately clear whether the Democratic governor would appeal. A spokesperson for Wolf said only: “We’re aware of the ruling and are reviewing the decision.”
The decision comes as states across the country are girding for a potential resurgence of the virus in the fall and winter months. Wolf has insisted that every action he and his administration have taken followed recommendations by the nation’s top health experts, even as Republicans who control both legislative chambers have accused him of acting unilaterally and overstepping the bounds of his authority.
Over the summer, Pennsylvania’s highest court rejected a lawsuit by GOP lawmakers seeking to end Wolf’s disaster emergency declaration, which greatly expanded the governor’s powers.
The lawsuit that led to Monday’s decision was filed in May by four Western Pennsylvania counties — Butler, Fayette, Green, and Washington — as well as individual businesses and lawmakers against Wolf and Levine.
It targeted, in part, an order Wolf and Levine issued in March shuttering all but “life-sustaining” businesses. Exactly what was deemed life-sustaining and how that decision was made was the center of controversy, and led the administration to create a waiver program that allowed businesses told to close to appeal the decision.
But that program itself became controversial after lawmakers and business owners reported it was unevenly applied within the same industries.
The state has since allowed businesses to reopen, although some — including restaurants, bars, and salons — are still operating under capacity restrictions.
Republicans in the legislature applauded the decision, including three members of the state House who helped bring the lawsuit. Rep. Tim Bonner (R., Butler) said the ruling “would basically undermine the governor’s ability to continue to rule by edict.”
Washington County Commissioner Nick Sherman, a Republican, called the decision “a huge step in the right direction.” But Sherman cautioned that people should still wear a mask, practice social distancing, and follow Centers for Disease Control and Prevention guidance.
“This is not opening the flood gates and saying, ‘Let’s flood Heinz Field this Sunday for a Steeler game,’” he said. “There are still precautions that need to take place.”
In ruling against the Wolf administration’s order closing nonessential businesses, Stickman held that its application had been arbitrary and followed no coherent definition of which businesses were “life-sustaining” and which were not.
What’s more, the judge ruled, the administration’s waiver program was applied incoherently and allowed some companies to resume operations even while their competitors in the same industry were denied the same relief.
And while the Wolf administration has argued that the situation is moot as almost all businesses have been allowed to reopen, Stickman noted that the order issued in March had no end date and that state health officials have warned it could be reinstated as necessary at any time, forcing businesses to close again.
“The court recognizes that defendants were acting in haste to address a public health situation,” wrote Stickman, who was nominated to the federal bench in 2019 by President Donald Trump. “But to the extent the defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the commonwealth at least deserved an objective plan.”
Stickman’s decision comes two weeks after a federal judge in Philadelphia threw out a similar challenge to the business closure order, saying the restrictions were temporary and, therefore, did not infringe in any meaningful way on business owners’ constitutional rights.
When I brought up the topic that federal Judge William Stickman IV found that Gov. Wolf’s directive of 250/25 was unconstitutional, Lentz said that he was following the dictates of the Pa. Department of Education.
Needless to say, but Stickman’s verdict came on Sept. 14, 2020, while the Pa. DOE directives to keep Wolf’s directives were last issued on August 17, 2020. Too Little too late for Supt.Lentz.
As Abraham Lincoln once said, You can fool all of the people some of the time; Some of the people all of the time; But you can’t fool all the people all of the time. And even though the school board members sit back and don’t challenge the supt. there are people who watch his every move.
At the New Hope Solebury School Board meeting last Thursday, Sep. 24. Supt. Lentz stated that in spite of Judge Stickman’s ruling against the 250 outdoor limit and the 25 person indoor limit the district would still follow the Pa. Department of Education’s edict in favor of the 250/25.
Just one SMALL problem folks- The DOE’s edict which which was created on July 16th was last updated on August 17th almost a month BEFORE Stickman’s decision.
But the big problem in this district is the fact that All nine members of the board refuse to challenge the Supt. time and time again.
What must be brought out and emphasized is the fact that ONLY two biological parents or a legal guardian can attend the games. NO grandparents or siblings will be allowed to attend. This means that even if one parent and a grandparent want to attend the game- a total of just two people which is what the district rules allow, the grandparent will still not be allowed.
Age Discrimination? Perhaps one of the affected families will call up the nearest ACLU or at the very least speak to a friend or member of his family that has a lawyer. Or how about a you tube video- New Hope Solebury grandparents and siblings Verboten from athletic events.
Blindly”Exercising Raw Governmental Authority” a phrase used by Judge Stickman found in the next to the last paragraph, accurately describes the actions of the New Hope Solebury superintendent and 8 school board members who under the guise of “protecting players, coaches and those very few who are allowed to attend games, poisons the relationship between the New Hope Solebury Community and the school district. I said eight members of the board because there was only one who said NO to having fall sports. Just one board member out of nine who stood up the the other eight. Just one person out of nine who had the guts and courage to stand up to the superintendent the
main cheering leader urging the board to vote for Fall Sports. Just one board member who is not a rubber stamp.
Regarding Valerie’s comment about, “any high school civics student”. that’s the problem. It was only last year that the Pa, Department of Education made it mandatory to teach civics in high school. A little too late wouldn’t you say when compared with the fact that NYC was making Civics a mandatory course back in the 1930’s.
In fact, the Pa. DOE makes it a point that Civics doesn’t have to be taught as a separate subject. It could be integrated( and hence lost and buried) with other subjects. High math and reading scores achieved by teaching to the test is the Name of the Game coming from Harrisburg.
Mel the indoor 25 rule is just slightly more idiotic than the outdoor 250 rule. After you count all participants/officials/staff on the field there will be around 50 spectators allowed in bleachers that in most high schools have a capacity for 3000 to 5000. Just parents of senior players and cheerleaders (maybe). Everyone else, including ALL visiting parents, are screwed. And all the while 22 teenaged boys are climbing and piling over one another on the field, exchanging blood, spit, and sweat. How some state govt moron came up with this number, and how all the other state govt nitwits played along without pointing out the obvious imbecility of this number…is a case study govt feeble-mindedness and gullible Covid panic.
With the law on its side, how many high school superintendents will have the courage and guts to disregard the maximum 250 outside maximum and the 25 inside maximum for their sporting events? Will the president of the PIAA, Dr. Robert Lombardi have the courage and guts to ignore the governor’s decree and tell the 500 Pa. school districts to disregard Gov. Wolf’s 250/25? If not will the various leagues have the courage and guts? Will the duly elected school board’s have the courage and guts to stand up to the Gov?I seriously doubt it.
New Hope Solebury’s school Board will have its virtual school board meeting tomorrow night, Thursday,9/24 at 6:30 PM via Zoom. Tune in and participate by going to the website, nhsd.org
As far as the 25 maximum rule, all high schools in the state that have just a girl’s volleyball team are blatant victims of discrimination since they, unlike all the outdoor teams, are not allowed to have any spectators- parents siblings, grandparents. In fact, just by playing they are in violation of the 25 max rule. New Hope Solebury’s girl’s volleyball team has 25 players. When they play another school with even just 12 players plus coaches referees, scorekeeper, they are well over the limit.
Is there just one parent who will contact the ACLU to go into court and get an emergency injunction against Governor wolf to rescind his 25 rule law?
Well of COURSE its unconstitutional. Any high school civics student could tell you that. And don’t go on with some specious screed that it’s a Trump appointed judge. Irrelevant. That’s the way it works…presidents appoint judges