PA Court Clarifies Existing Legal Standard For Challenges to COVID-19 Executive Orders

On Wednesday, in the Middle District of Pennsylvania, Judge Christopher C. Conner dismissed an emergency motion for a temporary restraining order and preliminary injunction by restaurants affected by Pennsylvania’s limited-time mitigation orders prohibiting indoor dining.

Two of the plaintiffs are the operators of restaurants: Fenicci’s of Hershey and River House Bar and Grill. The last plaintiff is the Hershey Independent Restaurant Association, a “nonprofit association” for “indoor-dining establishments,” and their owners, “in the Hershey and Palmyra areas.”

The defendants are Pennsylvania governor Thomas Wolf and Secretary of the Pennsylvania Department of Health Rachel Levine, MD. Governor Wolf’s executive order stated that “all in-person indoor dining at businesses in the retail food service injury… is prohibited,” while “outdoor dining, take out-food service and take-out alcohol sales are permitted and may continue.” The defendants stated that the limited-time mitigation orders were necessary “to mitigate the imminent spread” of COVID-19. The court noted that Pennsylvania “had recorded 457,289 cases in all 67 counties, and 12,010 deaths” when the order was issued.

The plaintiffs alleged that the indoor dining prohibition violates the “Substantive Due Process Clause, the Procedural Due Process Clause, and the Equal Protection Clause.” The plaintiffs also filed an emergency motion for a temporary restraining order and preliminary injunction. The plaintiffs asserted that “the limited-time mitigation orders single restaurants and bars out for differential treatment without adequate justification.” The plaintiffs claimed that there “is no legitimate reason for suspending indoor dining while allowing other indoor retail businesses to remain open at reduced capacity.” The plaintiffs further argued that the order “will inflict irreparable harm not only on them, but also on their owners and employees and the restaurant industry as a whole.”

The court cited Jacobson v. Massachusetts as “controlling precedent” explaining that Jacobson established that, “while constitutional rights do not evanesce during a public-health emergency, ‘the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to…restraint, to be enforced by reasonable regulation, as the safety of the general public may demand.’” The opinion further noted that Jacobson also established that a measure “‘enacted to protect the public health’…will be subject to judicial review only if it ‘has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of the rights secured by the fundamental law.’” 

The court found that the “plaintiffs have failed to establish a likelihood of success on their equal protection claim.” The court reasoned that  “indoor-dining establishments” and “other in-person, indoor business establishments” are different. Namely, the court addressed that “you can wear a mask while bagging a product or selecting a paint color, but you cannot wear a mask to eat or drink.”

The court declared the “defendants’ stated justifications for temporarily suspending indoor dining” to be “compelling.” The court agreed with the defendants that it “cannot genuinely be disputed that COVID-19 cases are surging and pushing the Commonwealth’s healthcare system to the brink.” The court ruled that the order is “sufficiently tethered” to “stated public-health objectives.”

The court determined that the plaintiffs did not suffer “irreparable harm” because plaintiffs’ harms were merely “speculative.” The court noted that the order was to expire “in just 11 days,” and that the order still allowed the plaintiffs to offer “takeout or outdoor dining as well as takeout alcohol sales.” The court found that the plaintiffs merely hypothesized that the temporary order would be extended and that the plaintiffs’ businesses were “likely, at some point, not to survive.” 

Ultimately, the court reasoned that an “extraordinary public-health crisis like the COVID-19 pandemic requires an extraordinary response.” The court declared that the “defendants’ determination that the restaurant industry must yield to the greater concerns of public health is a rational and wholly appropriate policy justification for the limited-time mitigation order.” The court noted that it “cannot provide any remedial assistance,” and that it “must defer to other branches of government to address the restaurant industry losses.” The court found “only that the restrictions responsible for those losses are not violative of constitutional principles.” The court denied the plaintiffs’ emergency motion for a temporary restraining order and preliminary injunction.

The plaintiffs were represented by Nestico Druby, P.C.