Pennsylvania Supreme Court sides with governor's dictatorial shutdown order in party-line decision

On April 13, 2020, in a 4-3 decision on party lines, the four elected Democratic justices of the Pennsylvania Supreme Court upheld Democrat Governor Wolf's order dated March 19, 2020 that shut down all "non-essential" businesses in Pennsylvania.  The order does provide a mechanism for businesses to apply for a waiver.

Wolf's order is imposed by the governor, not the Legislature.  This raises a constitutional issue of separation of powers because the Legislature gave the governor power to enact executive orders that have the force of law, which may result in criminal prosecutions.  The order can last up to 90 days and may be renewed by the governor unless terminated by the Legislature.  But the governor may veto the Legislature's termination, which Wolf did.

The challenge to the breadth of Wolf's order was based on constitutional grounds of separation of powers, procedural due process, equal protection, and the First Amendment.  The majority dismissed the constitutional issues.  The effect of the Court's reasoning is that the coronavirus presents such a danger that the rights guaranteed by the Bill of Rights must accommodate the virus.

The plaintiffs filed an appeal the U.S. Supreme Court. The Court should hear the appeal to determine the power of a governor to enact orders that have the force of law when the orders infringe upon the Bill of Rights.  These orders were issued by the governor, not the Legislature, where the proposed laws infringing on the Bill of rights could be debated and voted upon.

The majority upheld the authority of Wolf to declare the emergency.  It held that the Pennsylvania statute, 35 Purdon's 7301, empowers the governor to issue the order because the COVID- 19 virus is a "natural disaster" within the meaning of the statute.

Section 7301(a) and (b) provide:

(a) Responsibility to meet disasters. — The Governor is responsible for meeting the dangers to this Commonwealth and people presented by disasters.

(b) Executive orders, proclamations and regulations. — Under this part, the Governor may issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law.

The issue is the meaning of "disasters," stated by the Court thusly:

Because consideration of Petitioners' arguments require[s] that we engage in statutory interpretation, we note that when doing so a court's duty is to give effect to the legislature's intent and that the best indication of legislative intent is the plain language of the statute.

When a Court says it must look to the "intent" of a statute, it means the plain language does not say what the Court wants to do. The Court puts itself in the position of the Legislature that passed the law to "interpret" the statute to say whatever the Court wants.

Thirty-five Purdon's 7102 describes three types of disasters:

"Disaster." A man-made disaster, natural disaster or war-caused disaster.

"Man-made disaster." Any industrial, nuclear or transportation accident, explosion, conflagration, power failure, natural resource shortage or other condition, except enemy action, resulting from man-made causes, such as oil spills and other injurious environmental contamination, which threatens or causes substantial damage to property, human suffering, hardship or loss of life.

"Natural disaster." Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.

The Legislature enumerated specific instances of man-made and natural disasters without including a virus.  Yet the Court concluded the virus is a natural disaster by ruling that the virus fits the definition.

Obviously, a virus is not a "hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, or explosion."

Does "virus" fit into "or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life"?  The virus does result in substantial damage to property, hardship, suffering, and loss of life, but the key phrase is "explosion or other catastrophe."  There is no comma after the word "explosion."  This is significant, because the Court ruled the phrase "or other catastrophe" is a separate class of a natural disaster that is not limited by the words used by the Legislature to enumerate the natural disasters.  The Court treated "other catastrophe" as expansive and not limited by the enumerated disasters.

The Court discussed but rejected the statutory interpretation maxim of ejusdem generis, which the Court defined as follows:

Under the statutory construction doctrine of ejusdem generis ("of the same kind or class"), where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.

This means that for virus to be included in the general word of  catastrophe, virus must be of the same kind or class as the enumerated catastrophes such as "hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, or explosion."

 A virus is not of this class.  If the Legislature wanted to add virus to this definition, it could easily have done so.

The majority stated:

[T]he COVID-19 pandemic qualifies as a "natural disaster" under the Emergency Code for at least two reasons.  First, the specific disasters in the definition of "natural disaster" themselves lack commonality, as while some are weather related (e.g., hurricane, tornado, storm), several others are not (tidal wave, earthquake, fire, explosion).

This is weak reasoning.  The enumerated disasters are physical and weather-related.  The Legislature, when it drafted the law in 1978, and amended it in 2004 and 2014, knew about viruses that cause illness and death, such as the flu, SARS, Ebola, and others, but did not include viruses or other disease outbreaks.

The real reason for the majority's decision is this:

We further note that while ejusdem generis is a useful tool of statutory construction, such tools are used for the sole purpose of determining the intent of the General Assembly.  Ejusdem generis must yield in any instance in which its effect would be to confine the operation of a statute within narrower limits that those intended by the General Assembly when it was enacted.

The majority held the intent of the Legislature was to include all disasters that result in substantial damage to property, hardship, suffering, or possible loss of life.  If so, there was no need to enumerate natural disasters and man-made disasters.  All that was needed was to include "all disasters that result in substantial damage to property, hardship, suffering or possible loss of life."

Under the majority's reasoning, catastrophe could include drug addiction, cancer, heart disease, and numerous other illnesses or problems that cause substantial damage to property, hardship, suffering, or possible loss of life.  This gives enormous power to the governor.

It is dangerous for a court to presume the "intent" of a Legislature.  The Legislature is not one person.  In Pennsylvania, it consists of 203 House members and 50 senators.  Each voted for or against the law for various reasons.  It is arrogant for a court to say it knows the "intent" of the Legislature, unless there is a clear statement in the statute specifying the intent.

If the U.S. Supreme Court hears this appeal, the Court will likely deal only with the constitutional issues, not with the Pennsylvania  Court's interpretation of a Pennsylvania statute.  The U.S. Supreme Court usually defers to a state supreme court's interpretation, however misguided and wrong, of a state law.

But in this case, the Court's interpretation of a "natural disaster" produces a violation of the Bill of Rights because it gives the governor unlimited discretion to determine what is a natural disaster, which results in broad quarantine orders that trample the Bill of Rights and the rights of citizens to work.  This is probably the same in other states.

We have governors acting as the Executive and Legislature to make and enforce laws defining what is an essential business, which restricts the rights of people to work and exercise their constitutional rights.  We have moved from the government existing to protect our rights to the governors telling us what our rights are.  While there is a need for a governor to act in a true natural disaster, a governor should not have dictatorial powers for 90 days or more.

The state Legislatures must enact laws to clearly define the powers of governors and mayors, specify what constitutes a disaster, and have a time limit of not more than 10 days.  The Legislatures of each state should be in session within 10 days of a governor's emergency declaration to debate and pass laws on how to deal with a disaster.

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