In a 66-page opinion released Monday morning, a U.S. District Court judge based in Pittsburgh declared the actions of Gov. Tom Wolf and Dr. Rachel Levine unconstitutional, although “undertaken with good intention of addressing a public health emergency.”
Judge William S. Stickman IV wrote the Wolf administration’s “stay-at-home orders far exceeded any reasonable claim” that limits on the size of gatherings violate the right of assembly; and that business shutdowns violated the due process clause of the Constitution by exercising unprecedented power over every business, business owner and employee in the Commonwealth” during the novel coronavirus pandemic.
“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.”
By mid-afternoon, a spokeswoman for the Wolf administration expressed disappointment with the ruling, for which it will seek a stay and file an appeal with the federal Third Circuit.
Lyndsay Kensinger, press secretary for the governor’s office, wrote in response to an email inquiry, “The actions taken by the administration were mirrored by governors across the country and saved, and continue to save, lives in the absence of federal action.
“This decision is especially worrying as Pennsylvania and the rest of the country are likely to face a challenging time with the possible resurgence of COVID-19 and the flu in the fall and winter.”
According to Kensinger, Stickman’s ruling is limited to the business closure and the stay-at-home orders issued in March, later suspended, as well as indoor and outdoor gathering limitations.
“This ruling does not impact any of the other mitigation orders currently in place including, but not limited to the targeted mitigation orders announced in July, mandatory telework, mandatory mask order, worker safety order, and the building safety order,” she noted.
Stickman also harked back to Wolf declaring a state of emergency in March, but “it is now September. The record makes clear that (Wolf and Levine) have no anticipated end-date to their emergency interventions.
“But here, the duration of the crisis – in which days have turned into weeks and weeks into months – already exceeds natural disasters or other episodic emergencies and its length remains uncertain.”
Stickman cited a July dissent by U.S. Supreme Court Justice Samuel Alito when the majority of the nation’s nine members declined to review a case brought by Calvary Chapel, Dayton Valley, over limits on the number of people who could attend religious services.
While noting neither this case nor Alito’s dissent set legal precedent, the Pennsylvania federal jurist quoted Alito, who had written, “As public health emergency does not give governors and other public official carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as states have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”
While ruling in favor of businesses and Republican office-seekers who said their campaigns geared toward the June 2 primary were hindered, Stickman dismissed the plaintiffs Washington, Greene, Fayette and Butler counties that spearheaded the legal action.
“He found the counties do not have ‘standing’ in the case,” said Washington County Commission Chairman Diana Irey Vaughan. She said at a Monday evening press conference at the Hilton Garden Inn at Southpointe that, as it moves through the appeals process, “we will continue to support the suit.”
Commissioner Nick Sherman, who also was at the press conference, said guidelines from the Centers for Disease Control and Prevention (CDC) should still be followed, but “the governor went above and beyond CDC guidelines and imposed his own restrictions.”
“We did not eradicate the coronavirus,” Sherman explained.
Irey Vaughan said the ruling represented “a historic day in Washington County and all of the commonwealth,” and “a victory for businesses in Washington County.”
Sherman said the ruling would set a precedent for how governors would respond in future pandemics.
“This will impact other states and most likely be referred to,” he said.
Regarding businesses, Stickman enumerated that Pennsylvania received 42,380 waiver requests between March 19 and April 3. Of these, 6,124 were granted, 12,812 were denied and 11,636 were determined not to need a waiver to operate.
Owners of small businesses were among the 18 witnesses who testified at hearings in June and July that they weren’t permitted to operate while big-box stores remained open.
State Health Secretary Rachel Levine issued a call Monday to college students to take COVID-19 seriously as there has been a significant increase statewide in the number of new cases involving those between the ages of 19 and 24.
“We need your help,” Levine said during a press conference.
The percentage of positive test results has risen from below 10% in April to 19% statewide in September, Levine said. The percentage is 69% this month in north-central Pennsylvania, she said.
Meanwhile, Greene County was moved into an area of concern because its percentage rate overall has climbed to 5.1%, Gov. Tom Wolf’s office said Monday. Washington and Fayette counties were listed as areas of moderate concern regarding the spread of the virus.
“We know that congregation, especially over holidays and in college and university settings, yields increased case counts, Levine said. “The mitigation efforts in place now are essential to flattening the curve and saving lives.”
Meanwhile, 51.4% of recent patients who responded to contact tracers reported having visited a restaurant within two weeks prior to having symptoms, Wolf said in a news release.
Pennsylvania added 1,258 new cases of the virus to its total that reached 145,063 since March, Levine’s office said.
The statewide death toll from the disease climbed to 7,869 after seven new deaths were recorded since Saturday.
Washington County added 20 new cases since Saturday, taking its total to 1,210, the state Health Department said Monday. Greene County saw no new increase in virus cases where the total stood at 159. Fayette County recorded seven new cases to its total of 747. There were no new deaths in those counties.
The U.S. Department of Agriculture is extending waivers that allow schools to offer free grab-and-go meals to any student, regardless of eligibility.
Several school districts in Washington and Greene counties are taking advantage of the extension, which well enable them to provide a free breakfast and lunch to children ages 2 to 18, regardless of their family’s income or whether they attend classes in person or online. Children in day care also are eligible.
It is intended to assist school districts and families as they continue to address the impact of the novel coronavirus pandemic.
Canon-McMillan School District is among the local districts to participate.
“During these times when we need everyone to stay healthy, you cannot beat the idea of receiving a free, well-balanced meal,” said Superintendent Michael Daniels. “Canon-McMillan is happy to have been granted permission from the state to serve free breakfasts and lunches to every child in our community, pre-kindergarten to 18 years of age, through the end of December 2020.”
According to the district, nearly 98,600 meals have been served through its program since the onset of the COVID-19 pandemic.
Lunches will include an entrée, fresh vegetables, fruit and milk. Cereal and other assorted breakfast items, along with juice and milk, will be provided for breakfast.
Pickup bundles will be available at Canonsburg Middle School’s bus loop each Monday for remote students, or for hybrid students who are not in school.
U.S. Secretary of Agriculture Sonny Perdue said, “As our nation reopens and people return to work, it remains critical our children continue to receive safe, healthy and nutritious food.”
School districts are not required to offer a program, but Bethlehem-Center, California and Charleroi are among those who have chosen to participate.
Dr. Laura Jacob, superintendent of California Area School District, said about half the district’s students qualify for free or reduced priced meals.
Jacob said eating three healthy meals a day is essential to students’ learning.
“Ensuring that all children have three healthy meals each day is associated with better grades, reduced absenteeism, and improved memory,” said Jacob.
Charleroi business manager Joseph Gudac said during the summer, the school district at times served more than 200 meals a day at five sites throughout the district.
“Not only have we been able to offer food to those in need, but we have also been able to provide continued employment for our cafeteria staff,” noted Gudac.
He emphasized that, at Charleroi, the child doesn’t need to be there when food is picked up and that one person can pick up meals for multiple recipients.
The state Department of Labor & Industry has a trust fund from which it pays unemployment compensation benefits. The fund, according to L&I secretary Jerry Oleksiak, “was well on its way to becoming solvent” by summertime – until the coronavirus pandemic started to overtake the commonwealth in mid-March.
As of Friday, about 80% of the $3.4 billion that was in the fund at the beginning is gone. An estimated $74.2 million remains.
To keep UC benefits flowing at a time they are dwindling, the department will have to rely on federal loans, which Oleksiak said it will do starting later this month.
The trust fund was the focus of L&I’s weekly virtual news conference Monday afternoon, five days after the Federal Emergency Management Agency advised the state that the Lost Wages Assistance program had ended. That program, established through an executive order by President Donald Trump, provides a $300 weekly benefit to workers in participating states who are fully or partly unemployed because of the pandemic.
Oleksiak said the loans that will boost the trust fund will be 0% interest and the state will request $800 million the first month, and $1 billion the second and third months. As for repaying them, the secretary said, “We will work with the governor’s office and the Legislature.”
FEMA, at Trump’s direction, administered the LWA program by using $44 billion from the Disaster Relief Fund. Pennsylvania got $2.4 billion, before being told by the agency Wednesday that LWA ended Sept. 5. Eligible claimants in Pennsylvania, however, can file for benefits for five weeks, beginning Aug. 1 through Sept. 5 – and will be paid retroactively in a lump sum.
LWA is separate from the state’s regular UC programs, none of which were affected by the federal program’s demise.
As he did last week, Oleksiak recommended that claimants “apply as quickly as possible” for LWA benefits before that funding source evaporates.
“The payment process started last week,” said Susan Dickinson, UC benefits policy director for L&I. Initial Pennsylvania claimants are expected to receive LWA benefits this week.
Labor & Industry reported that it has paid $26 billion in total benefits, $5 billion in regular UC.
L&I will have another weekly town hall at 1 p.m. Thursday. It is open to the public, by calling 833-380-0719 or live-streaming at https://access.live/PAlabor.