The case was brought by five entities, including the Blueberry Hill Golf Club and the Caledonia Land Company of Clarendon, after Wolf ordered the closure of all non-life-sustaining businesses in response to the COVID-19 pandemic.

The state Supreme Court sided with the state.

The U.S. Supreme Court denied an application for a stay of the order but has yet to act on a Writ of Certiorari, or cert petition, the businesses also filed.

In the meantime, Butler, Fayette, Washington and Greene counties filed a joint brief with the court in support of the businesses on May 19.

Times Observer photo by Josh Cotton Four Pennsylvania counties — Butler, Fayette, Washington and Greene — have filed a brief with the U.S. Supreme Court in support of a challenge to Gov. Tom Wolf’s COVID-19 business closure order.

They argue that the court granting the Writ of Certiorari, which would mean the court will take the case, would “provide the Court with the opportunity to address the constitutional limitations on the use of Executive Orders to deprive the citizens of the Commonwealth of Pennsylvania of the free exercise of their constitutional rights.”

The counties argue that the actions of Wolf and Health Secretary Dr. Rachel Levine have “substantially restricted the rights of its citizens,” citing four specific amendments — the first, fourth, fifth and 14th.

“The Governor decided by fiat what was life-sustaining and what was not life-sustaining,” the counties assert. “The governor offered no guidance relative to the proclamation, and did not see fit to submit such classification to the General Assembly for guidance and approval. What is more, the classifications imposed by the Governor are shocking when one considers the similarity of the business activity between some life-sustaining business activity and some non-life-sustaining business activity.”

They attack Wolf specifically for not detailing the factors to move counties among the reopening phases, calling that plan “nothing more than an arbitrary decision-making tool that relies on the speculations” of Wolf and Levine.

“There is no evidence to establish that any of the Petitioners or any of the Petitioners’ employees are infected with the COVID-19 virus,” they assert. “Further, there is no evidence to establish that due to the nature of Petitioners’ business operations, Petitioners and/or their employees are more likely than the employees of life sustaining businesses or the general population to transmit the COVID-19 virus.

“(T)he activities of Petitioners’ business operations are no more likely to result in the further transmission of the COVID-19 virus than the business activities of businesses designated as “life-sustaining” businesses by the Governor. The COVID-19 virus does not distinguish between “life-sustaining” and “non-life-sustaining” business activities.”

Wolf and Levine have until June 4 to respond to the cert petition.