September 1, 2020
By Timothy Sandefur

State lockdowns in response to the coronavirus pandemic have created major hurdles for businesses across the country. But inconsistent implementation and arbitrary enforcement of these orders have made things even worse. Some business owners have gone to court to challenge the constitutionality of the inconsistent and unfair ways their states have implemented these shutdowns, and yesterday, a federal court in Pennsylvania rejected that state’s request to throw out one such lawsuit.

The case—brought by owners of several businesses, including a pool company called Paradise Concepts—points out that state officials created an “exemption” process whereby businesses could request a waiver of the business-closure orders, yet failed to create any rules to govern that process. As a result, the state handed out waivers arbitrarily, without any rationale or justification—and sometimes in apparently self-serving ways. For example, when Paradise Concepts learned that two virtually identical pool companies nearby had been granted waivers, it asked for permission to reopen, too—and was denied. Among the companies that were allowed to reopen was Wolf Home Products—a business owned by the family of Pennsylvania Governor Tom Wolf. “The only reasonable inference to be drawn,” declared the court in yesterday’s order, “is that nearly identical businesses were treated differently under the waiver program.”

Even more shockingly, the Governor has refused to explain the rationale behind the apparently random waiver process. As Spotlight PA notes, the legislature was even forced to sue the Governor to get information about how he went about deciding what business could reopen and what could not.

The state’s lawyers argued that they’ve changed things now and have issued rules explaining how they approve or disapprove waiver requests. But the court agreed with the plaintiffs that that’s not enough to have the lawsuit thrown out: The government has not proven that it won’t engage in the same arbitrary and standardless decision-making again. “The parties appear to agree that Plaintiffs are no longer subject to the business closure orders,” wrote the judge, “but…it appears that the pandemic is likely to persist, such that government officials may issue similar closure orders in the future.”

The court expressed hesitation over second-guessing the government’s efforts “to combat a once-in-a-century global health crisis,” and that’s understandable. But it also emphasized that the law requires the government to act in a rational and consistent manner when it does implement safety rules. The case will now proceed to fact-finding and ultimately to arguments on the constitutionality of the state’s actions.

The case is being litigated by lawyer Wally Zimolong, who is a member of the American Freedom Network, the Goldwater Institute’s network of pro bono attorneys litigating for liberty. To learn more about the American Freedom Network and how you can get involved, visit goldwaterinstitute.org/american-freedom-network/.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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