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High Court to eye closure order case

The challenge brought by five entities including two from Warren County — Blueberry Hill Golf Club and the Caledonia Land Company of Clarendon — to Gov. Tom Wolf’s business closure order will be considered by the U.S. Supreme Court later this month.

A docket for the case indicates that it will be before the justices at conference on Sept. 29.

“According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time-no police, law clerks, secretaries, etc,” according to uscourts.gov. “The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week’s petitions for certiorari, i.e., deciding which cases to accept or reject.”

According to scotusblog.com, the writs of certiorari that come to conference are added to the discuss list at the request of at least one justice. Without that step, the writ would have been automatically denied.

Four justices would have to agree to take the case for the case to be heard.

The entities have argued that the “Order is not tailored or reasonably necessary to achieve the suppression of COVID-19” and “exceeded the Governor’s permissible scope of his police powers and thus violated petitioners’ rights guaranteed by the U.S. Constitution.”

Wolf’s March order shuttered any businesses deemed non-life-sustaining in response to the COVID-19 pandemic.

The petition to the court cites disease data on the flu and noted that“governors have never shut down tens of thousands of businesses throughout their state in response to the flu.”

Their arguments include a due process violation under both the Fifth and Fourteenth Amendments.

“The Order ousted Petitioners from their place of business and prohibits them from physically operating them,” the cert petition states. “The Petitioners had no expectation that they would be barred from using their physical business operations, which were already in lawful use on their business premises, by an executive order from the Governor.”

“The fundamental problem with the Governor’s classification scheme is the two classes – life-sustaining and non-life-sustaining — do not have any commonly understood definition,” they argue, “and do not appear to have existed as industry or business classifications prior to the Governor’s decision to employ them in his Order. In short, no one knows what they mean.”

As a result, they contend, the “system lacks rationality at its foundation” and has been “arbitrary and capricious” in enforcement.

The state responded by saying that the entities “mistake this Court – a panel of jurists who decide questions of law – for a panel of epidemiologists who make public health determinations…. Even if this Court were inclined to wade into fraught questions of epidemiology and public health-and it should not -this case presents an extremely poor vehicle to do so.

“In Petitioners’ view, their desire to be unrestrained during a pandemic outweighs the public’s interest in fighting its spread.”

The state acknowledged in its response that the restrictions brought about by Wolf’s order are now no longer in effect.

“Adopting a quantity over quality approach, Petitioners raise an assortment of issues in their petition and three supplemental briefs,” they assert. “Petitioners’ primary argument amounts to a disagreement with how the Pennsylvania Supreme Court interprets Pennsylvania law… (and) disagreement with the public policy choices made by Pennsylvania health officials in combatting the pandemic.

A federal judge this week ruled in a different case that the order was unconstitutional.

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