Experts say Pa. mask mandate appeal seeks broader precedent

Gov. Tom Wolf’s administration announced last week that it was prepared to lift the school mask mandate by Jan. 17.

Why then, after the Commonwealth Court ruled Wednesday that Acting Health Secretary Alison Beam didn’t have the authority to issue the order in the first place, would the administration even bother to appeal, given it already was set to lapse in just a couple of months?

Legal experts say it’s not just because Wolf’s team believes masks make it safer for children to be in school, but also because they want to ensure they get good guidance from the Pennsylvania Supreme Court on administrative agencies being able to issue orders such as this.

“It’s precedent,” said Bruce Ledewitz, a Duquesne University law professor. “That’s an issue that’s not going away.

“I’m sure they’re going to court, in part, to protect the executive branch in future controversies.”

Tina Batra Hershey, a professor of health policy and management at the University of Pittsburgh School of Law, agreed.

“It’s an illustration of the conflict between the executive branch and the legislative branch,” she said.

Throughout the summer, the Wolf administration reiterated its stance that it would leave decisions about masking in K-12 schools up to individual school districts.

However, as the academic year began and the delta variant of covid-19 raged, Wolf reversed course.

On Aug. 31, Beam issued an order requiring all students, faculty and staff at schools across Pennsylvania to wear masks.

The administration said the Disease Control and Protection Law of 1955 gives the secretary the authority to issue the order.

However, two separate lawsuits were filed against the state alleging that Beam did not have authority to issue the order because it was a new regulation that did not go through the proper rule-making process.

During oral argument before the Commonwealth Court last month, the plaintiffs further argued that masks do not fall under a “disease prevention and control measure” as outlined by the law the administration cited.

On Wednesday, in a 4-1 decision, the Commonwealth Court panel ruled in favor of the students and families who challenged the mask mandate, finding Beam did not have the authority to issue the order.

In its opinion, the court said that since there was no emergency declaration in place at the time the administration issued the order, Beam was required to follow state rulemaking requirements before issuing the mandate.

The plaintiffs celebrated the ruling and thought there would be immediate relief — allowing school districts across Pennsylvania to implement their own local plans, whether with voluntary masking or mandatory.

However, the state said almost immediately that it would appeal to the state Supreme Court, which under the law automatically stays the Commonwealth Court order — leaving the mask mandate in place.

Late Thursday afternoon, the law firm of Thomas Breth, who represents the plaintiffs in one of the mask mandate challenges, filed an application to terminate the automatic stay in Commonwealth Court.

To prevail, they must convince the court of three things: that they will be irreparably harmed if the stay is not lifted, that they will prevail in the appeal and that the general public will not be harmed by lifting the stay.

“The masking order has been declared to be illegal and void, and thus, robs the (plaintiffs) of the ability to make decisions for themselves,” the filing said. “This is particularly egregious in light of the factual findings in this case that the acting secretary had no authority to issue the masking order.”

In a phone interview, Breth said he didn’t know why the administration chose to appeal.

“I don’t think the governor likes to hear ‘no,’ ” Breth said. “I don’t think the governor likes to be told he’s wrong.”

Elizabeth Rementer, a spokesperson for the governor, said the mask mandate has helped to keep students in their classrooms this fall.

“The administration is committed to ensuring that the secretary of health maintains the tools necessary to ensure the safety and health of all Pennsylvanians,” she said. “School masking is a necessary public health measure to keep children safe and provide them with as much in-person learning in school as possible. Medical experts agree — hospitals and health care professionals across the state support the masking requirement.”

Hershey thinks the issue is much broader than that.

The question to be posed to the state Supreme Court, she said, is how much deference a court should give an agency’s authority and how much oversight the legislative branch has over the executive.

“This is not simply about the mask mandate,” she said. “It’s more about the future. Each of these branches is very cognizant of their role. They want to protect their own turf.”

These questions, Hershey said, don’t just impact the Department of Health, but other executive agencies, as well.

Ledewitz said that, without a decision from Pennsylvania’s highest court, this question is likely to come up every time there’s an emergency declaration because of the constitutional amendments that passed in May.

The first one granted the Legislature the power to end an emergency declaration by a concurrent resolution passed in both chambers of the Legislature. It would not require the governor’s signature.

“They should have stopped there,” Ledewitz said.

But they didn’t, and the second amendment of the state constitution now requires that an emergency declaration automatically expire after 21 days — no matter who or what party the governor is.

“They’ve so encumbered the governor’s power, it’s possible to run afoul of the rigid rules they created in some future emergency,” Ledewitz said.

Ledewitz said that’s why the administration hopes to win at the state Supreme Court.

While that body is not obligated to take the appeal, Hershey said she’s confident it will.

“I think it’s an important enough question that they will take it,” she said.

As for the timing of the process, Ledewitz said he does not expect the state Supreme Court to fast-track the case.

“I think you could be waiting months if it’s treated like an ordinary case,” Ledewitz said.