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Pennsylvania Covid-19 Rules Survive Constitutional Challenges

April 14, 2020, 2:00 PM

The business closures Pennsylvania Gov. Tom Wolf (D) imposed to protect the people of the state from the spread of Covid-19 are constitutional, the state supreme court said.

A Republican candidate for the Pennsylvania Legislature, a real estate agent, and a golf club didn’t prove that the restrictions violate their takings, due process, equal protection or speech and assembly rights, the opinion by Justice Christine Donohue said.

The petitioners claimed that the executive order violates the takings clause of the U.S. Constitution because it completely prohibits them from using their property. Disagreeing, the court said the closures are an appropriate use of the governor’s police powers to protect the people, and are only temporary.

Although the executive order didn’t permit hearings before the businesses were closed, it does permit post-deprivation hearings to challenge a non-life-sustaining designation, and therefore doesn’t violate due process, the court said.

The campaign committee of the candidate, Danny DeVito, argued the executive order violates his equal protection rights, because his opponent, who is a sitting member of the state Legislature, can keep their legislative office open. But campaign offices and legislative offices aren’t similarly situated, and all campaign offices, whether incumbent or challenger, must be closed, the court said.

DeVito’s argument that the executive order violates his speech and assembly rights was also rejected by the court. The suppression of Covid-19 is a substantial governmental interest, and the executive order doesn’t unreasonably limit alternative avenues of communication, it said.

Chief Justice Thomas G. Saylor, joined by Justices Kevin M. Dougherty and Sallie Updyke Mundy, questioned the court’s jurisdiction over the case, and said the executive order should be treated as presumptively valid while the lower courts address the challenges.

Scaringi Law represented the petitioners.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription).

The case is Friends of Danny DeVito v. Wolf, 2020 BL 136113, Pa., No. 68 MM 2020, 4/13/20.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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