Appeals court allows Gov. Tom Wolf, state to restore covid crowd restrictions

The 3rd U.S. Circuit Court of Appeals on Thursday granted a request from Gov. Tom Wolf to reinstate crowd gathering restrictions designed to prevent the spread of covid-19.

In a two-page order filed just after noon, Judges D. Brooks Smith, Michael Chagares and Patty Shwartz granted the request to stay the decision from U.S. District Court in Pittsburgh that ruled the governor’s orders restricting gathering sizes and ordering nonessential businesses to close were unconstitutional.

The order includes no rationale or explanation for their decision.

The filings related to the motion were submitted by the governor’s office Sept. 25 and by the seven businesses who brought the initial suit Wednesday.

Lyndsay Kensinger, a spokeswoman for Wolf, said, “We’re pleased that the court granted our request for a stay on indoor and outdoor gathering limits.”

Gov. Tom Wolf says his gathering limits are back in place for interscholastic sports but says “stay tuned.” #HSSN #PIAA #WPIAL pic.twitter.com/UOY4Da3mYI

— Chris Harlan (@CHarlan_Trib) October 1, 2020

The plaintiffs, representing businesses from Butler and Washington counties, challenged the governor’s orders from March, alleging they violated the First Amendment right to assemble, as well as equal protection and due process clauses.

District Judge William Stickman IV, who was appointed by President Trump last year, agreed with the plaintiffs and said Wolf’s orders — though well-intended — violated individual rights of the business owners. He issued his order Sept. 14.

On Sept. 22, he denied a motion to stay filed by the governor, who argued that if the crowd-size gathering restrictions were limited, the virus would spread and more people would die.

Wolf appealed the case to the Third Circuit and additionally requested the stay.

The plaintiffs’ attorneys said in their filing Wednesday the stay should not be granted and the governor presented no medical evidence before Stickman that lifting crowd restrictions could lead to more deaths from the virus.

Instead, they argued a stay would continue to infringe on their clients’ constitutional rights.

Attorney Thomas W. King III, who represents the plaintiffs, said he was surprised by the speed of the decision.

“Obviously, we are disappointed, but we are not deterred,” he said.

The reinstated restrictions will now limit gathering sizes — with no more than 25 people allowed inside and 250 people allowed outside. Those could affect political events, as well as some of his clients’ businesses, King said, such as drive-in theaters and some retail stores. However, the crowd restrictions have not been enforced at most political events and Black Lives Matters protests.

“We are going to fight,” King said. “If we have to go to the Supreme Court about it, we will.”

Jerry Dickinson, a Constitutional law scholar and professor at the University of Pittsburgh, said it’s impossible to predict what will happen on the merits of the case based on the order granting the stay.

There also is no way to say, yet, whether the three-judge panel that considered the initial stay will be the same one to hear the actual appeal.

Dickinson said the panel granting the stay must have concluded the government demonstrated a strong showing that it was likely to succeed on the merits since that is one of the considerations it was required to make.

The other strong influence in the decision, he said, is the potential of irreparable harm to the public without a stay.

“That’s a huge part of this,” he said. “If Stickman’s order and the decision is kept in place, it really limits what the government can do with this pandemic and more people dying. The government has to have flexibility.”

It is not unusual, Dickinson added, that the panel granting the stay did not issue an opinion with the order.

As the case moves forward, the governor’s written arguments with the appellate court are due Nov. 4, with the plaintiffs’ due 30 days later.

Dickinson said it is possible the Third Circuit could decide the case without oral argument — which is not unusual there — with a decision not likely until after the new year.