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.