Following a hearing in support of a request for declaratory judgment, U.S.D.C. Judge Stickman sided in favor of business owners over the Governor's mandated shutdown of businesses under the "life-sustaining" and "non-life-sustaining" designations published and re-published numerous times over March, April and May of this year.
"After reviewing the record in this case, including numerous exhibits and witness
testimony, the Court believes that Defendants undertook their actions in a well-intentioned effort
to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are
not alone enough to uphold governmental action against a constitutional challenge. Indeed, the
greatest threats to our system of constitutional liberties may arise when the ends are laudable,
and the intent is good-especially in a time of emergency. In an emergency, even a vigilant
public may let down its guard over its constitutional liberties only to find that liberties, once
relinquished, are hard to recoup and that restrictions-while expedient in the face of an
emergency situation-may persist long after immediate danger has passed. Thus, in reviewing
emergency measures, the job of courts is made more difficult by the delicate balancing that they
must undertake. The Court is guided in this balancing by principles of established constitutional
Wolf's shut down orders wreaked havoc in the business community. Business owners struggled with deciphering the constantly changing Orders, charts and other edicts to determine the conditions under which they could stay pen - if at all.
After six months of punishment from the Governor, this court decision will be well received but far too late for many of the irreparably damaged businesses and industries.
"The Business Plaintiffs have demonstrated they were treated differently than other
businesses that are similarly situated. For example, R.W. McDonald & Sons is a retailer that
sells furniture and appliances-so is Walmart, Lowes and The Home Depot. The only difference
is the extent of their offerings-Walmart, Lowes and The Home Depot are larger and offer more
products. However, in essence, they are the same-retailers selling consumer goods. Likewise,
the Salon Plaintiffs (in their role as retailers of health and beauty products, rather than
performing personal services) are similarly situated to the big box retailers and drug stores in that
they sell the same health and beauty products. Again, the only distinction is size. Nevertheless,
Defendants' orders treated these retailers differently than their larger competitors, which were
permitted to remain open and continue offering the same products that Plaintiffs were forbidden
from selling. The record unequivocally establishes that the distinction was made intentionally.
Thus, the final question is whether there was a rational basis for the difference in treatment."
- "However, the manner in which Defendants' orders divided businesses into "lifesustaining"
and "non-life-sustaining" classifications, permitting the former to remain open and
requiring the latter to close, fails rational basis scrutiny. The Court outlined at length above the
facts of record demonstrating that Defendants' determination as to which businesses they would
deem "life-sustaining" and which would be deemed "non-life-sustaining" was an arbitrary, ad
hoc, process that they were never able to reduce to a set, objective and measurable definition. As
stated above in reference to the Business Plaintiffs' due process challenge, to the extent that
Defendants were going to exercise an unprecedented degree of immediate power over businesses
and livelihoods; to the extent that they were going to singlehandedly pick which businesses could
stay open and which must close; and to the extent that they were picking winners and losers, they
had an obligation to do so based on objective definitions and measurable criteria. The Equal
Protection Clause cannot countenance the exercise of such raw authority to make critical
determinations where the government could not, at least, "enshrine a definition somewhere."
(ECF No. 75 p. 95).
- Finally, the record shows that Defendants' shutdown of "non-life-sustaining" businesses
did not rationally relate to Defendants' stated purpose. The purpose of closing the "non-life-sustaining" businesses was to limit personal interactions. Ms. Boateng averred: "[i]n an effort to
minimize the spread of COVID-19 throughout Pennsylvania, the Department [ of Health] sought
to limit the scale and scope of personal interaction as much as possible in order to reduce the
number of new infections." (ECF No. 37, p. 2). "Accordingly, it was determined that the most
effective way to limit personal interactions was to allow only businesses that provide lifesustaining
services or products to remain open and to issue stay-at-home orders directing that
people leave their homes only when necessary." (ECF No. 37, p. 3). But Defendants' actions
did not rationally relate to this end. Closing R.W. McDonald & Sons did not keep at home a
consumer looking to buy a new chair or lamp, it just sent him to Walmart. Refusing to allow the
Salon Plaintiffs to sell shampoo or hairbrushes did not eliminate the demand for those products,
it just sent the consumer to Walgreens or Target. In fact, while attempting to limit interactions,
the arbitrary method of distinction used by Defendants almost universally favored businesses
which offered more, rather than fewer products. As such, the largest retailers remained open to
attract large crowds, while smaller specialty retailers-like some of the Business Plaintiffs
here-were required to close. The distinctions were arbitrary in origin and application. They do
not rationally relate to Defendants' own stated goal. They violate the Equal Protection Clause of
the Fourteenth Amendment.
The Court closes this Opinion as it began, by recognizing that Defendants' actions at
issue here were undertaken with the good intention of addressing a public health emergency. But
even in an emergency, the authority of government is not unfettered. The liberties protected by
the Constitution are not fair-weather freedoms-in place when times are good but able to be cast
aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a "new normal" where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional. Thus, consistent with the reasons set forth above, the Court will enter judgment in favor of Plaintiffs.
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