Lawsuits contend Gov. Wolf has no authority to issue new restrictions

A Butler County attorney who previously won a federal lawsuit against the Wolf administration over the spring covid-19 shutdown orders filed two new suits over the governor’s most recent orders.

The lawsuits — one filed by the Butler Area School District and the other by two indoor water parks — allege that Gov. Tom Wolf took action prohibited under state law when, on Dec. 12, he issued orders closing entertainment venues, limiting indoor capacity to 10 people and prohibiting school students from participating in extracurricular activities and athletics.

“In both instances, he’s exercising powers our clients believe he doesn’t have,” said attorney Tom King. In the school district lawsuit, he wrote: “The governor’s powers are not absolute, and he cannot act in a manner that violates the Pennsylvania Constitution and statutes.”

King filed the suit on behalf of Butler Area School District, as well as the school board and several parents, on Monday afternoon in Commonwealth Court. The lawsuit contends Wolf and Secretary of Health Dr. Rachel Levine usurped their authority relative to how the order affects local school districts.

The lawsuit asks the court to reverse the governor’s mitigation order.

In addition to the complaint over the prohibition of after-school activities and sports, the lawsuit also challenges an earlier attestation order issued by Levine on Nov. 23. That required school districts in counties with two consecutive weeks of substantial transmission of the virus to attest to compliance to offer in-person instruction.

King wrote that the board president, Alvin Vavro, and Superintendent Brian J. White Jr. “were forced to acquiesce,” and signed the form “under protest.”

The lawsuit alleges the state usurped the board’s authority, as well as that of the state legislature.

“The attestation requirements, the governor’s mitigation order, and the secretary’s mitigation order usurp the powers of the Pennsylvania Legislature because they suspend, modify, and are contrary to existing Pennsylvania law,” the lawsuit said.

The complaint further alleges that Levine is not authorized to close schools or limit in-person instruction, and the secretary of education has no power to enforce those orders.

“To the contrary, those powers are reserved for the boards of school directors as stated below,” King wrote. “The secretary of health’s attestation order and mitigation order are in violation of Pennsylvania law.”

The complaint cites Pennsylvania’s school code, which grants school board directors and individual districts the power to adopt and enforce rules “regarding the management of its school affairs and the conduct and deportment” of employees and students.

The plaintiffs are asking the court to reverse the administration’s orders and grant a permanent injunction to stop the administration from prohibiting in-person instruction or banning other activities.

In the water park lawsuit, King filed a complaint in federal court in Pittsburgh on behalf of Kalahari Resorts & Conventions in Pocono Manor, Monroe County, and Conley Resort and Golf in Butler, which operates Pirate’s Cove.

The lawsuit notes the U.S. Centers for Disease Control and Prevention has said there is no evidence covid spreads through the use of recreational waters, including at water parks.

The lawsuit said Wolf’s restrictions “permit other businesses to continue operations when such businesses have similar, if not greater, person-to-person contact and have significantly higher rates of infection associated with their business operations.”

The plaintiffs claim the shutdown order arbitrarily affects some businesses and not others.

“Defendants’ severe treatment of plaintiffs’ business operations, while granting preferential treatment to other businesses, is unsupported in fact and law,” the complaint says. “Defendants’ shutdown orders treat plaintiffs’ water park business operations differently by requiring them to shut down while other businesses are allowed to continue to operate at 50% or greater.”

The water parks have successfully implemented the same mitigation measures the state asked of other businesses, which were allowed to remain open, according to the lawsuit.

At Kalahari, which has an occupancy rate of 6,969 people, the resort implemented a number of additional safety precautions to protect against covid, including separate HVAC systems for each guest room; installing hand sanitizer stations and plexiglass barriers; removing high-touch items from guest rooms; and enhancing cleaning protocols, according to the lawsuit.

As a result of the shutdown orders, the lawsuit said, Kalahari projected losses of more than $10 million.

Under the governor’s order, the water parks fall under the “entertainment industry” classification, in which businesses were completely shut down. Those also include theaters, concert venues, museums, casinos and bowling alleys.

That lawsuit asks the court to declare the shutdown orders unconstitutional and to issue an order that blocks the state from prohibiting their operation.

The water parks’ lawsuit was assigned to U.S. District Judge William S. Stickman IV. In September, he ruled that Wolf’s initial orders in the spring — restricting the size of gatherings and closing non-essential businesses to protect against the spread of covid — were unconstitutional.

That case is on appeal with the 3rd U.S. Circuit Court of Appeals.