A group of Pennsylvania businesses petitioned the US Supreme Court Monday in their lawsuit seeking to overturn Governor Tom Wolf’s March 19 executive order closing “non-life-sustaining” business in response to the COVID-19 pandemic.
Last Friday the Pennsylvania Supreme Court denied their request to stay the order, finding that the group had “not established any basis for relief based upon their constitutional challenges.” Monday’s filing asks the Supreme Court to weigh in and rule differently, because, the petitioners claim, the economic damage of the shut-down deprives them of property without due process.
The group of petitioners includes Friends of Danny DeVito, a committee boosting the election of a candidate for the state House of Representatives (who shares the name of the famous actor), a real estate agent, a public golf course and restaurant, a laundry company, and a company that harvests timber on their land. Since the filing of their original petition in Pennsylvania, the laundry company and the timber company have been granted waivers under the executive order and moved into the “life-sustaining” category still allowed to operate. All five of the organizations remain parties to the Supreme Court petition, however, and maintain that leaving the executive order in place “constitutes severe, immediate, and ongoing deprivation of their rights under the U.S. Constitution.”
The thrust of the petitioners’ complaint is that the “financial distress” caused by the mandatory pandemic response constitutes “the complete destruction of the property rights of vast numbers of businesses.” The Pennsylvania Supreme Court, however, held that there was not a taking of property. The governor’s executive order, the court said, “results in only a temporary loss of the use of the Petitioners’ business premises, and the Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to protect the lives, health, morals, comfort, and general welfare of the people.” The Pennsylvania court pointed to a 2002 case in the US Supreme Court when a group of developers around Lake Tahoe were prevented from working there for more than two years while the regional planning authority developed a comprehensive land use plan. The Supreme Court refused to find that a regulatory taking because of the temporary nature of the measure. For the COVID-19 emergency, the Pennsylvania Supreme Court noted, the executive order must expire at 90 days; while it can be renewed, the legislature may also step in to end the disaster declaration.
The Pennsylvania petition will head to Justice Samuel Alito, who manages requests from that part of the country and will have the decision whether to forward the petition to the entire court.