Wednesday, April 15, 2020

Divided Supreme Court Upholds Challenge to Wolf's Business Shutdown

On Monday, a divided Pennsylvania Supreme Court on Monday rejected a statutory and constitutional challenge to Governor Tom Wolf's March 19 Executive Order that has effectively put Pennsylvania out of business. It was a 4-3 decision, with Justice Christine Donohue writing a 51-page opinion endorsed by fellow Democrats Max Baer, Debra Todd and David Wecht. A concurring and dissenting opinion was penned by Chief Justice Thomas Saylor. He was joined by fellow Republican Sallie Updyke Mundy and Democrat Kevin Dougherty.

Governor Tom Wolf is a Democrat.

Justice Dougherty, the sole Democrat to side against Governor Wolf, is the brother of prominent trades union leader John "Johnny Doc" Dougherty. He and the trade unions have been critical of the construction shutdown. Wolf's order has resulted in 1.3 million unemployment compensation claims, and the phone hotline has failed. Gig workers and the self employed may be eligible for benefits under the Pandemic Unemployment Assistance Program, but the state has yet to set up an application portal for them. They are in limbo.

Monday's decision marks the second time the Court has upheld Governor Wolf's March 19 Executive Order. On March 23, in another 4-3 decision, it rejected a challenge mounted by gun rights advocate Joshua Prince. He argued that the Order closing gun shops made the Second Amendment meaningless. Though the Court sided with Governor Wolf, he quickly reversed himself on gun shops, and allowed them to re-open.

This second challenge was brought by a political candidate for the state house, along with several businesses. They include Kathy Gregory, a realtor from Northampton County. In an interview, she stated realtors can show homes while following CDC guidelines, and that Governor Wolf's "logic makes no sense to me." Another Plaintiff is a golf course owner who will be unable to meet its financial obligations unless permitted to operate. This owner noted that golf course are open in other states. The political candidate argued that an incumbent state representative can still meet constituents at her office, giving her an unfair advantage.

The statutory challenge was based on the language of  the Emergency Code, under which the Governor has the authority to declare a "state of disaster emergency." The Court concluded that a pandemic qualifies as a disaster under the terms of the statute. It notes, significantly, that the Governor's emergency authority only lasts for 90 days, and that the state legislature can terminate this emergency at any time.

The constitutional argument that most troubled the Democratic majority was that Governor Wolf's shutdown order, which came with no notice or opportunity to be heard, is a violation of the procedural due process clauses embedded in both the state and federal constitution. The Court concluded there was no need for what it called pre-deprivation notice and opportunity to be heard because such a process would take too long in the face of an emergency. The Court reasoned that procedural due process is required, even in an emergency. But it was satisfied that this constitutional requirement was satisfied by a process under which affected negatively-impacted businesses could seek a waiver.

Chief Justice Saylor, however, refused to accept this procedural due process argument. He scoffed at the notion that the closure is only temporary.  "[T]he majority allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch’s determination of which businesses must close and which must remain closed," he reasoned. "While the majority repeatedly stresses that such closure is temporary, this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast."

While the majority cited Politico and New York Times to establish facts, Chief Justice Saylor felt that there were sufficient allegations of inconsistencies and arbitrariness in the waiver process to justify a factual hearing before the Commonwealth Court. He preferred a record based on actual evidence.

The challengers in this case were represented by Harrisburg Attorney Marc Scaringi, who is also a columnist and right-wing talk-radio host. Marc Scaringi. I was unable to get in touch with him before publishing this story.

Thanks to all these shutdowns, the IMF has predicted the global economy will experience its worst financial crisis since the Great Depression.


Anonymous said...

Ah, Doc Dougherty!
Connect the dots to the Pawlowskis crime syndicate.
Ya’ couldn’t make this shit up.

Anonymous said...

They care about people not your vacations home's new kitchen.

Anonymous said...


Anonymous said...

Fellow Pennsylvanians, we have a State Government and a Governor who are following a PLAYBOOK. That same PLAYBOOK is being followed by several other ‘big’ states. Almost, in lock-step. As if the Shut Down Edicts were written by the same source, word for word.

This PLAYBOOK has very little to do with a VIRUS.

Goals of a different kind, beyond citizen health, are in full view. WAKE-UP, DAMMIT!

Anonymous said...

YES--goals to get TRUMP-they hate him more than they love the citizens

Anonymous said...

I run a company considered essential under state guidelines. I deliver products and services to state agencies on multi-year contracts. While I'm permitted to operate, I cannot deliver - and therefore invoice and be paid to support 4o employees - because the state inspectors are unavailable to move final deliveries through. They're forcing me to shut down at end of shift tomorrow because they've choked my cash flow - agreed upon in good faith under a contract. I could only carry it so long. When your model is to pay a 100 to make 105, it's impossible to sustain when you're suddenly paying 100 to make 0, for even a short time. I have great people and this is unfair to all of us. I don't know what'll be left when this is over. It's not that Harrisburg doesn't seem to care. It's that they seem to care deeply about doubling-down on crippling economic policy mistakes.

Anonymous said...

7:20 -

You sound very much like my neighborhood small Appliance Dealer! My pre-paid refrigerator (you know for food) replacement is sitting in a small stockroom one mile away from my home, for a month now. Yet, all through this craziness, I could have purchased/had delivered/picked-up the SAME item everyday if I had spent my money with Lowe’s or Home Depot!

Yes, a tiny, personal problem. But, a problem that tells a BIG story.

Anonymous said...


oh thats right, Fishing is open, thats safer

Anonymous said...

Why in God's name would any golf course be closed? That's beyond ridiculous. Wolf hates Pennsylvanians and wants them to suffer. Does Dr. Dick Levine still swing a club?

Anonymous said...

The 51 page opinion is here.

original article links to the dissenting opinion twice.

Anonymous said...

" self employed may be eligible for benefits under the Pandemic Unemployment Assistance Program, but the state has yet to set up an application portal for them."
And the problem with that program lies with the Feds not the Commonwealth.
same with small business loans.

Bernie O'Hare said...

"original article links to the dissenting opinion twice."

That's bc it's twice as good, lol. Sorry about that. Will fix now.

Bernie O'Hare said...

"And the problem with that program lies with the Feds not the Commonwealth.
same with small business loans."

The feds have NOTHING to do with the state's total failure to establishing an application process. Sorry. I don't like Trump either, but this is on Wolf.

Anonymous said...

At the PA portal they state they are waiting for the feds for guidance.
that can be the excuse but to be fair the feds have had plenty of problems trying to do everything they want to do.
for example the business loans via the banks has been a disaster.
i agree that does not mean that Wolf could do more.

Anonymous said...

i meant i agree Wolf could do more.
my bad

Anonymous said...

Wolf only takes care of his own. The teachers union, PSEAR's, state workers. All being paid full salaries, while others have to deal with unemployment. Nothing like being first in the Nation for screwing up. Only time PA is first in anything. No construction, no booze ( GREAT TIME TO PRIVATIZE THAT LITTLE CASH COW and remove the JOHNSTOWN 18% FLOOD TAX!!), no common sense, no nothing.... Crushing small businesses one at a time..........

People have used the phrase "Pennsyltucky" many times. It truly fits now... Thanks WOLF, you truly S**K.

Anonymous said...

They've had enough in Michigan and are descending on the capital. It's time to storm Harrisburg and force Wolf to arrest us all - and tell him that stupid beard makes him look like an evil child molester, too.

Anonymous said...

Probably, 8 out of 10 adult Americans believe these restrictions on FREEDOM are, at this time, TOO RIGID. They don’t see evidence on the ground to support the pressure they feel. Now, we see State Governors, including Governor Wolf, seemingly banding together along political party lines to determine what to do.

We have separate States, separate Governors, separate Primaries, and separate Voting Rules. We must demand our Governor and Legislators INDEPENDENTLY determine how best to serve their citizens!

Thousands and thousands of citizens are moving OUT of New York, California, and other states for a reason! Keep Pennsylvanians here.

Anonymous said...

To add to my 2:24 post, the same, helpful “How to Protect Against the Virus” card held up by VP Pence over the past 3 weeks is adequate for now. 4-5 simple steps. Good advice that WILL keep the present threat at bay.

By the way, our Federal $2400 Assistance grant hit our bank account today. Feels good!