Pa. Justices Reject Lawmakers' Bid To Lift Virus Emergency

By Matthew Santoni
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Law360 (July 1, 2020, 9:58 PM EDT) -- The Pennsylvania General Assembly's joint resolution to end the state of emergency Gov. Tom Wolf declared over the COVID-19 pandemic was struck down by the state's high court Wednesday because it had not first crossed Wolf's desk for a likely veto.

A 5-2 majority of the Pennsylvania Supreme Court said that House Resolution 836, which called for Wolf to immediately end his emergency declaration and lift the restrictions that came with it, was not exempt from the Pennsylvania Constitution's requirement that most laws and resolutions be submitted to the governor for an approval or veto.

"Our Constitution is clear: all concurrent resolutions, except in three narrow circumstances … must be presented to the governor for his approval or veto. To allow a concurrent resolution that does not fit into one of the exceptions to take effect without presentment would be to authorize a legislative veto," wrote Justice David N. Wecht for the majority. "Because the General Assembly intended that H.R. 836 terminate the governor's declaration of disaster emergency without the necessity of presenting that resolution to the governor for his approval or veto, we hold … that H.R. 836 is a legal nullity."

Only resolutions that deal with purely internal matters for the legislature, such as rules and adjournment, or resolutions calling for constitutional amendments are exempt from the presentment requirement, the majority said in striking down the resolution.

While the Republican legislators defending the resolution also pointed to a section of the Emergency Management Services Code that they interpreted as giving the General Assembly authority to unilaterally end an emergency declaration, the Supreme Court majority said they had to adopt a different interpretation in line with the state constitution.

Both chambers of the General Assembly had passed the resolution calling for Wolf to immediately end the emergency declaration in early June.

When he took no action, Senate President Joe Scarnati, R-Jefferson, Majority Leader Jake Corman, R-Centre, and the Senate Republican Caucus filed a lawsuit June 10 in the Commonwealth Court claiming Wolf was illegally refusing to comply. Agreeing that the suit raised a pressing constitutional question, the justices took up the case a week later.

Wolf issued a disaster emergency declaration in early March as COVID-19 cases first started to appear in Pennsylvania, later issuing an executive order that all non-life-sustaining businesses close their doors in order to ensure social distancing and to curb the spread of the virus. He renewed the emergency declaration in early June because the state's Emergency Management Services Code only allows such declarations to last for 90 days at a time.

The emergency declaration had legal effects throughout the Keystone State, including authorizing the movement of funding and emergency personnel, suspending certain regulations, and granting the government power to issue restrictions on businesses and individuals, the justices said. The resolution reversing the declaration would therefore also have a legal effect, putting it outside the exemptions for presentment, the majority held.

"Enforcement of H.R. 836, which requires the governor to end the state of disaster emergency, would have far-reaching legal consequences beyond the governor simply signing and publishing a new proclamation. It would prohibit the governor from taking legal actions, and that prohibition itself has legal effect," Justice Wecht wrote.

The justices noted that Republicans' interpretation of the Emergency Management Services Code — that a concurrent resolution may end an emergency "at any time" and the governor "shall issue an executive order or proclamation" doing so — was a reasonable one, but it wasn't the only one. And where more than one interpretation of a law exists, the courts must take the one that doesn't challenge the constitution, the majority said.

"If the General Assembly intended to give itself the ability to terminate a state of disaster emergency unilaterally, there would have been no need to involve the governor in the equation at all," Justice Wecht wrote. "The requirement … that the governor must act to end the disaster emergency is a sign that the General Assembly understood that its concurrent resolution would be presented to the governor."

Justice Kevin M. Dougherty agreed with the majority that the resolution should have been given to the governor, but he said that section of the Emergency Management Services Act was unconstitutional for its apparent effort to avoid presentment, and should scuttle the whole act.

Chief Justice Thomas G. Saylor, joined by Justice Sallie Updyke Mundy, reasoned in his dissent that there were bigger issues of constitutional checks and balances at play. He said the state entrusted the governor with the ability to declare emergencies and assume extra power, but it also empowered the General Assembly to act as a check and rescind those emergency powers.

"I simply cannot envision that the framers of the Pennsylvania Constitution contemplated that the governor could be invested with a panoply of exceptional powers — including the delegated power to suspend laws and commandeer private property — but that the Legislature nonetheless would be powerless to implement a counterbalance that was not then subject to the chief executive's own veto power," Justice Saylor wrote.

The Republicans backing the suit criticized the ruling in a statement Wednesday, saying it failed to protect the balance of power between branches of government.

"We understand the need for a temporary suspension of civil liberties under dire circumstances — something we agreed needed to happen initially as we worked to flatten the curve," Scarnati said. "However, while we work to protect lives, we cannot continue to disregard the civil liberties of Pennsylvanians."

While restrictions have been relaxed in most parts of the state, new cases of COVID-19 have taken a sudden upward turn in places including Allegheny County, which set records for new positive tests on Tuesday and Wednesday that county officials attributed mostly to younger people going back to large gatherings or traveling.

Philadelphia is set to go to "green" status on Friday, allowing certain activities such as going to the mall or casinos to commence. Other green status activities, such as opening gyms and restaurant dining rooms, will be delayed based on the city's case numbers and what is happening elsewhere.

"This decision represents a titanic shift in power which we believe is wrong and not in the best interest of justice," Corman said. "The court has essentially granted the governor king status. As we approach the July 4th holiday when our country celebrates the freedoms that our forefathers established and fought to uphold, the court has returned an unchecked monarchy to Pennsylvania."

The Republicans' statement said the legislature was "starting the process" to amend the state constitution to address the issue. As the law stands now, the number of votes in favor of the resolution to end the declaration would not be enough for a two-thirds majority in both chambers to override a veto.

A representative of Wolf said the governor was "pleased with the Supreme Court's decision keeping in place the disaster proclamation to assist in the state's response to the pandemic and to provide protections for businesses, workers and residents."

Wolf is represented by Pennsylvania Attorney General Josh Shapiro and J. Bart DeLone, Claudia M. Tesoro, Howard G. Hopkirk, Sean A. Kirkpatrick and Daniel B. Mullin of the Office of the Attorney General.

Scarnati and Corman are represented by Matthew Haverstick of Kleinbard LLC.

The case is Gov. Tom Wolf v. Sen. Joseph B. Scarnati et al., case number 104 MM 2020, in the Supreme Court of Pennsylvania.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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