The Wolf administration is seeking a judicial stay on a federal ruling that struck down several of Gov. Tom Wolf’s key COVID-19 restrictions. The court ruling effectively gave a green light to large gatherings in Pennsylvania.
State Attorney General Josh Shapiro, who is representing the Wolf administration in its planned appeal, asked Judge William S. Stickman IV on Wednesday to retain the governor’s limits on crowd size, at least for now, warning that allowing large groups to congregate during a legal battle over Mr. Wolf’s public health orders “will result in people’s deaths” from the coronavirus.
Based on a plain interpretation of Judge Stickman’s legal opinion filed Monday, gatherings of more than 250 people outdoors and 25 people indoors -- not including at bars and restaurants for routine business purposes -- are permitted, even as the state’s health secretary continues to urge Pennsylvanians to avoid large gatherings.
The now-permitted gatherings include “fairs, festivals, concerts, or shows and groupings that occur within larger, more permanent businesses” — as defined by the administration’s mandate, which was struck down by Judge Stickman as unconstitutional. It also includes personal and political events such as weddings, rallies and business meetings, according to the opinion.
“There are currently, in Pennsylvania, no congregate numbers that attach to any of those events,” said Thomas King, a Butler attorney who filed the suit that led to Judge Stickman’s ruling.
The restrictions on gatherings were imposed — in writing — on July 15, and defined by the Wolf administration as a ban on “temporary grouping[s] of individuals [of more than 250 people outdoors and 25 indoors] for defined purposes, that [take] place over a limited timeframe, such as hours or days.” They did not apply to events or gatherings in the retail food services industry, which were — and still are — subject to different capacity limits.
“The people of Pennsylvania are free from those orders and limitations and are no longer under any legal compulsion to comply with them,” said Marc Scaringi, a lawyer in Harrisburg who has represented a similar legal action against the governor’s authority.
Counties could hold their big fairs if they wanted. Presidential candidates can hold large outdoor rallies if they want.
Mr. King said he’s heard from a number of people who want to put on festivals and events.
“I’m not your lawyer,” Mr. King said he’s been telling them, “but in my opinion, you’re fully able to do that.”
His political clients, who acted as plaintiffs in the case and argued their political expression was being unfairly restricted, are mulling events of their own, Mr. King said, after months of having to cancel fundraisers and rallies.
Some of Mr. King’s political clients are waiting for clarity, too — or, specifically, the result of an appeal — before making any big plans.
The campaign spokesperson for U.S. Rep. Mike Kelly, R-Butler, who had argued that he had to cancel a rally and multiple fundraisers that “[finance] a significant portion” of his campaign, said their team has been hard-pressed to find a venue that’s comfortable with opening up for a big gathering, and that they are currently taking a “wait and see” approach as the appeal happens.
State Rep. Marci Mustello, R-Butler, who testified in court that she typically reaches voters through fundraisers, dinners, meet-and-greets and public events, said that although she is approaching the ruling cautiously, she is looking forward to planning larger events.
“Really, I’d like to start planning them right away,” Ms. Mustello said. “We have an election coming up on Nov. 3.”
Judge Stickman, noting in his ruling that hundreds were allowed to congregate in malls and stores and at a state-approved car show in Carlisle, wrote that imposing the congregate limit cap on people gathered for “political, social, cultural, educational and other expressive gatherings” isn’t narrowly tailored and isn’t constitutional under the First Amendment.
Mr. Wolf and Secretary of Health Rachel Levine said they will appeal the ruling and “take it as far as necessary” to contain the virus and keep Pennsylvanians safe, the governor said at a press conference on Tuesday.
A judicial stay, if approved, would pause or halt the judge’s orders, pending the state’s appeal.
In the state’s stay, Mr. Shapiro’s office said in court documents Wednesday that Judge Stickman’s ruling “does not consider the manner in which COVID-19 is spread or the rationale for adopting the congregate limits.” Its request for a stay also pointed out that other federal judges, and the Pennsylvania Supreme Court, have upheld Wolf’s pandemic shutdown orders.
“The split in authority created by the Court’s opinion makes it difficult, if not impossible, for (the Wolf administration) to manage the pandemic effectively and has created confusion and uncertainty throughout Pennsylvania,” the state’s motion said.
In the meantime, Dr. Levine said the public should continue to follow guidelines designed to stop the spread of COVID-19.
“We strongly recommend that people continue to practice the efforts to stop the spread of this virus,” Dr. Levine said this week. “Of course, that means mask-wearing, that means hand sanitizer and hand-washing and it also means the social distancing that we have discussed and avoiding large gatherings.”
State officials have also sought to remind Pennsylvanians that the administration’s other mandates and restrictions — like mandatory telework, mask-wearing and worker safety -— are still in effect and are unaltered by the ruling.
Mr. Wolf and Dr. Levine argued that these restrictions were legitimate exercises of police power in an emergency situation, and that limits were content-neutral. In a traditional public forum, “government may impose content-neutral time, place and manner restrictions provided that the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information,” the defendants claimed.
Judge Stickman said Mr. Wolf and Dr. Levine failed to establish evidence that the specific limits — 250 outdoors and 25 indoors — were necessary to achieve their ends, and when asked if large protests — for example — had led to known “mega-spreading events” as the governor’s chief of staff had warned of in testimony, the chief of staff was unable to point to an instance.
The congregate limits, meanwhile, had no end-date or method for expiration, Judge Stickman said, and were to remain in effect “until further notice.”
That was the judge’s warning, too, about the administration’s stay-at-home orders and components of its business closures, but those restrictions were already suspended by Mr. Wolf and Dr. Levine before the ruling. Still, the state has shown — through testimony and its order — that those restrictions can “be reimposed at [Mr. Wolf and Dr. Levine’s will,” Judge Stickman wrote.
Mr. Wolf, in a press conference this week, talked of his intent to appeal, and said that the ruling is “fairly limited” and “doesn’t affect a lot of the things that are in place.”
“And some of the things it ruled on are no longer in place at all,” Mr. Wolf said. “But what remains in there, we are working on taking a look at the ruling to make sure we are doing everything we should do to make sure Pennsylvanians have clarity.”
The Associated Press contributed. Julian Routh: jrouth@post-gazette.com, 412-263-1952, Twitter @julianrouth.
First Published: September 17, 2020, 9:43 a.m.
Updated: September 17, 2020, 11:22 a.m.
