The coronavirus/COVID-19 pandemic has been the subject of significant political and governmental action. In many states, government responses have been through executive orders or administrative actions, rather than legislation. In Connecticut, for instance, Governor Lamont has issued (at last count) 28 Executive Orders premised upon his initial declaration of a public health and civil preparedness emergency resulting from the COVID-19 outbreak. Among other things, these orders purport to “suspend or modify statutes,” cancel school classes, require certain establishments and restaurants to close, toll time limits, change statutory filing requirements, and order that designated “non-essential businesses” close or significantly modify their practices. (Golf, however, remains allowed.) A list of such orders can be found at http://halloransage.com/executive-orders/. Until now, despite this (hyper)activity by state governors, most activity within the courts regarding COVID-19 (other than their closure orders) has centered upon prisoners and detained immigrants seeking release because of health concerns, and addressing other “hot button” political/legal issues affected by the executive orders. What has not been reported to a significant degree are decisions addressing the actual legality and constitutionality of the actions and orders issued by state executives.

This is likely to change. Especially as the scope and nature of the risk is refined by experience, companies and persons barred or limited from conducting business, or with whose existing rights and relationships the orders have interfered, are likely to begin to take actions to challenge these orders, especially those perceived as especially onerous. In addition, those businesses and owners who are fined or threatened with arrest are likely to question the underlying bases for the government actions.  For instance, in Michigan, a landscape business and property owners filed suit on April 14 against the two executive orders issued by Governor Whitmer. Martinko v. Gretchen Whitmer, 2:20-cv-10931-BAF-MJH.

On Monday, April 13, the Supreme Court of Pennsylvania decided a challenge to restrictions imposed in that Commonwealth. Friends of Danny Devito, et al., v. Tom Wolf, Governor, et al, 2020 WL 1847100 (PA, April 13, 2020).  The governor had issued a “Proclamation of Disaster Emergency,” and stated that there is a “threat of imminent disaster.” Relying upon that Proclamation, the governor ordered closed as of March 21 any business which “is not a life-sustaining business,” and created a list of businesses falling within and without the “life-sustaining” rubric. Similarly, restaurants and bars were ordered closed, except for carry-out, delivery and drive-through service.

Petitioners were several Pennsylvania businesses — the campaign committee for a state-office candidate which could not access its offices; a licensed real estate agent who could not operate because her broker/franchisor is non-life-sustaining; and a public golf course and restaurant faced with significant ongoing financial and maintenance obligations which it could not meet because it had been ordered closed – which had been shut down by Executive Orders. They contended that the governor lacked the statutory authority to issue his orders, and that the orders violated their constitutional rights. The Commonwealth, in turn, asserted that both its inherent police powers and applicable statutory provisions enacted to supplement that power granted the governor the ability to proceed as he did. The Pennsylvania Supreme Court agreed with the State, and denied relief vacating or striking the Executive Orders.

The Opinion begins by accepting without question the designation of the COVID-19 situation as a “pandemic” and the governor’s statement that there is a threat of imminent danger. From there, the court notes that the governor was vested “broad emergency management powers” under Pennsylvania’s Emergency Code, *8, and that upon his declaration of a disaster emergency, he had “expansive” power to suspend regulatory statutes, use “all available resources” of the state as “reasonably necessary to cope” with the situation, control movement and occupancy, and suspend or limit sales of alcohol, firearms, and combustibles. This, the court found, was “firmly grounded in the Commonwealth’s police power,” *10, and is “both one of the ‘most essential powers of the government’ and its ‘least limitable power.’” Id.

The petitioners challenged whether such emergency powers were applicable to the viral illness at issue (as opposed to natural disasters and enumerated events), and that even if it were, they argued it did not grant the ability to force business closures. After citing the number of reported COVID-19-positive test results within the state, *11, the court simply stated that “it is beyond dispute that the COVID-19 pandemic is unquestionably a catastrophe that ‘results in … hardship, suffering or possible loss of life,’” thus qualifying as a “natural disaster.” After rejecting arguments of geographic over-reach, and dismissing what it called the “public interest argument” that it is best in balance to keep businesses open, the court decided that the pandemic triggered the governor’s Emergency Code authority. *13-14.

Five constitutional challenges were rejected in whole. The court decided that separation of powers did not apply because the Emergency Code had vested the governor the abilities he exercised. A takings-without-compensation was dismissed because, to this court, the business closure was “only a temporary loss” of the ability to conduct business, rather than a regulatory taking. A procedural due process claim based upon the lack of pre-deprivation notice was thrown aside because of perceived urgency. An equal protection claim by the campaign committee was denied because the court concluded the campaign committee was not disadvantaged compared to other such committees. Finally, the court rejected a First Amendment claim by the campaign committee, as the Order was supposedly properly “tailored” for the circumstances and the committee had alternative means of communicating.

What is obvious is that the Pennsylvania Supreme Court was inclined to wholly defer to the Executive, including his conclusion that an event was present justifying his emergency management powers, and further to defer to all restrictions at issue. The decision includes no examination as to whether the facts and data truly supported the Executive Orders issued – whether the health findings or the scope — and arguments raised about the hardship imposed were deal with in a most dismissive manner.

While this case only affects Pennsylvania (and even there, may be limited in the future depending on the petitioner’s claims and new facts presented), it offers cautionary guidance to businesses and individuals in other jurisdictions. Those adversely affected by COVID-19 related executive orders should be mindful of the likelihood that reviewing courts will significantly defer to the state executive’s findings and decisions. Even where a business (in this case, the public golf course) offered evidence and arguments that its ability to meet its obligations were significantly impaired, the court dismissed that claim, stating that this was “only temporary.” (Whether the course will still exist when this “only temporary” impact ends seems uncertain.)  Thus, if a business or individual believes its situation is so critically impacted by portions of a state’s executive orders that it has no choice but to challenge the order(s), it should be mindful of this deference, and be prepared to marshal its evidence, expert testimony, and arguments in a pointed and compelling fashion, both as they relate to the validity of the particular aspects of the order and the impact that order is having upon the business.

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