October 27, 2020

Volume X, Number 301


October 27, 2020

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October 26, 2020

Subscribe to Latest Legal News and Analysis

Federal Judge Declares Portions of Pennsylvania’s COVID-19 Mitigation Orders Unconstitutional

Finding the good intentions behind COVID-19-related safety orders laudable but insufficient to overcome liberty interests in the rights to free assembly, due process, and equal protection, a federal judge in Pittsburgh has declared unconstitutional portions of COVID-19 orders enacted by Pennsylvania Governor Tom Wolf. County of Butler, et al. v. Wolf, No. 2:20-cv-00677 (W.D. Pa. Sept. 14, 2020).

Procedural Background

The case began in May and was brought by three groups: several counties surrounding Pittsburgh, four members of the Pennsylvania House of Representatives for communities in those areas, and several Pennsylvania businesses. Judge William S. Stickman IV, a 2019 appointee to the Western District of Pennsylvania, dismissed the County Plaintiffs from the lawsuit, finding that only the Pennsylvania businesses and individual politicians could challenge the administration’s orders.

Provisions Challenged

The provisions in Governor Wolf’s orders challenged in the declaratory judgment action, and ultimately found to violate the U.S. Constitution, were those that closed non-life-sustaining businesses, required Pennsylvanians to stay-at-home (except for prescribed reasons), and limited indoor and outdoor gatherings to 25 and 250 individuals, respectively, which were enacted in March as COVID-19 cases began to spread across the Commonwealth.

Governor Wolf lifted the business closure and stay-at-home provisions this summer in response to slowing increase in the number of new COVID-19 cases.

Court’s Decision

In support of his ruling in the plaintiffs’ favor, Judge Stickman wrote that “the Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” Rather, Judge Stickman noted that “the Constitution sets certain lines that may not be crossed, even in an emergency.” He found that certain of Governor Wolf’s attempts to contain the COVID-19 pandemic ran afoul of Pennsylvanian’s constitutional rights.

In making this ruling, Judge Stickman determined that the Wolf administration’s COVID-19 mitigation efforts were entitled only to “regular” constitutional scrutiny. The administration argued that it was entitled to a more deferential review because of the pandemic’s emergency nature. Judge Stickman’s chief rationale for applying a stricter level of review was the “ongoing and open-ended nature of the restrictions and the need for an independent judiciary to serve as a check on the exercise of government power.”

The Judge acknowledged the seriousness of the COVID-19 pandemic, but emphasized that “the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.”


Judge Stickman’s ruling contrasts with the Pennsylvania Supreme Court’s May 20, 2020, order declining to lift the some of the same requirements challenged in the case. Business occupancy mandates and other safety requirements, such as the obligation to wear face coverings in public and mandatory telework, were not challenged and remain in effect. The latest ruling limits the Governor’s ability to re-impose business closure and stay-at-home orders and leaves open the possibility of similar challenges to the Governor’s COVID-19 mitigation efforts in federal court.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 261



About this Author

Marla Presley, Employment Labor Litigation Attorney, Jackson Lewis Law Firm
Principal and Office Litigation Manager

Marla N. Presley is a Shareholder in the Pittsburgh, Pennsylvania office Jackson Lewis P.C. Prior to joining Jackson Lewis, Ms. Presley was a litigation attorney at both a regional and national law firm, concentrating in the field of labor and employment litigation, including individual and collective action discrimination and wage and hour claims.

Ms. Presley’s practice is focused exclusive on the representation of employers in employment related litigation before administrative agencies and courts on both the state and federal levels. Ms....

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Laura C. Bunting Employment Attorney Jackson Lewis Pittsburgh, PA
Of Counsel

Laura C. Bunting is Of Counsel in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She brings her past experience as a federal law clerk and employee-side employment attorney to exclusively provide employers with focused and results-oriented representation in matters involving claims of discrimination and retaliation under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and various state laws and common law theories.

Ms. Bunting has jury trial experience in federal and state courts and represents her clients through all phases of litigation. She has significant experience in federal and state courts and before administrative agencies. 

Ms. Bunting also provides advice and counseling for her clients, including employers in the technology, healthcare, hospitality, transportation, and retail industries. In addition, she regularly drafts and reviews employment agreements, non-compete agreements, and employee handbooks. Ms. Bunting is a frequent presenter on employment law issues and regularly provides clients and managers with training on issues including leave management and discrimination, harassment, and retaliation prevention. 

While attending law school, Ms. Bunting studied in London and obtained a master of law degree in international law.  Following law school, Ms. Bunting clerked for the Honorable Arthur J. Schwab, United States District Judge of the United States District Court for the Western District of Pennsylvania. During this time, Ms. Bunting served as the primary law clerk on over a dozen jury trials. After her clerkship, Ms. Bunting represented individuals in employment matters while working at a prestigious boutique law firm. Ms. Bunting then transitioned to exclusively representing employers as a member of a Pittsburgh litigation boutique before joining Jackson Lewis. 

Shane LaBarge Labor & Employment Attorney Jackson Lewis Pittsburgh, PA

Shane LaBarge is an Associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. He vigorously represents employers in federal, state, and administrative tribunals by focusing his practice exclusively on employment and labor law.

Mr. LaBarge defends employers from claims brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. Mr. LaBarge dedicates a significant portion of his practice to preventive advice by conducting on-site...