Courts inconsistent on orders relating to COVID-19

By Andrew S. Murphy

Jun. 30, 2020

In the spring, a political campaign committee, a real estate agent and a golf course filed a lawsuit seeking to invalidate Pennsylvania’s stay-at-home order, arguing Gov. Tom Wolf exceeded his statutory authority and that the order infringed on their  constitutional rights to assemble and to equal protection.

The court upheld the order in a 4-3 decision, finding the governor had expansive emergency management powers to address the COVID-19 pandemic, including the authority to order closure of all “non-life-sustaining” businesses in the state in order to prevent the spread of COVID-19. Finally, the majority rejected the petitioners’ argument that the Executive Order infringed on the petitioners’ constitutional rights.

The three justices who dissented opined that the closure of all “non-life-sustaining” businesses may have exceeded Wolf’s authority. The dissenters would have given the petitioners an opportunity to develop an evidentiary record in a lower court regarding the necessity for the broad scope of the Executive Order.

The U.S. Supreme Court declined to hear the petitioners’ challenge, and Wolf subsequently replaced the challenged order with a less restrictive one. Friends of Danny DeVito v. Tom Wolf, No. 68 MM 2020 (Pa. Apr. 13, 2020) 

IMPACT: As the country continues to balance health-related restrictions and reviving the economy, affected businesses may be understandably frustrated by shifting government mandates. But as Friends of Danny DeVito demonstrates, businesses should not expect courts to relieve them of their obligation to comply.

Andrew S. Murphy is an associate at Taft Stettinius & Hollister LLP in Chicago.


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