Amicus Curiae Brief — Friends of Danny DeVito, et al., Petitioners v. Tom Wolf, Governor of Pennsylvania, et al.

No. 19-1265

In the

Supreme Court of the United States

FRIENDS OF DANNY DEVITO, et al.,

Petitioners,

v.

TOM WOLF, GOVERNOR OF PENNSYLVANIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Pennsylvania, Middle District

BRIEF OF AMICI CURIAE COUNTY

OF BUTLER, COUNTY OF FAYETTE,

COUNTY OF GREENE AND COUNTY

OF WASHINGTON IN SUPPORT OF

PETITIONERS

Thomas W. King, III

Counsel of Record

Dillon McCandless King

Coulter & Graham, LLP

128 West Cunningham Street

Butler, PA 16001

(724) 283-2200

tking@dmkcg.com

Counsel for Amici Curiae

296281

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. R e s p o n d e n t s ’ O r d e r s v i o l a t e t h e

Substantive Due Process provisions of the

United States Constitution . . . . . . . . . . . . . . . . . . 4

B. R e s p o n d e n t s ’ a c t i o n s v i o l a t e t h e

Procedural Due Process provisions of the

United States Constitution . . . . . . . . . . . . . . . . . . 8

C. R e s p o n d e n t s ’ O r d e r s w o r k a s a

t a k i ng of pr ivat e pr op er t y by t he

Commonwealth of Pennsylvania . . . . . . . . . . . . . 12

D. R e s p o n d e n t s ’ O r d e r s v i o l a t e t h e

Equa l P rot ect ion prov isions of the

United States Constitution . . . . . . . . . . . . . . . . . 17

1.

Life Sustaining v. Non-Life Sustaining . . . 20

2.

The Governor’s plan to ease restrictions

is arbitrary and irrational . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Peña,

515 U.S. 200, 115 S. Ct. 2097,

132 L. Ed. 2d 158 (1995) . . . . . . . . . . . . . . . . . 18, 19, 20

Board of Regents v. Roth,

408 U.S. 564, 92 S. Ct. 2701,

33 L. Ed. 2d 548 (1972) . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Boyanowski v. Capital Area Intermediate Unit,

215 F.3d 396 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 5

Brown v. Heckler,

589 F. Supp. 985 (E.D. Pa. 1984) . . . . . . . . . . . . . . . . 18

Brozusky v. Hanover Township,

222 F. Supp. 2d 606 (M.D. Pa. 2002) . . . . . . . . . . . . . . 5

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Collins v. City of Harker Heights,

503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

County of Sacramento v. Lewis,

523 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

iii

Cited Authorities

Page

Craig v. Boren,

429 U.S. 451 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Federico v. Board of Educ.,

955 F. Supp. 194 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . 4

Finley v. Giacobbe,

79 F.3d 1285 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 4

Fuentes v. Shevin, et al.,

407 U.S. 67, 81, 92 S. Ct. 1983,

32 Ed. 2d 556 (1972) . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Gomez v. Toledo,

446 U.S. 635, 100 S. Ct. 1920,

64 L. Ed. 2d 572 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Horne v. Department of Agriculture,

576 U.S. 350, 135 S. Ct. 2426, L. Ed. 2d 388 (2015) . 9

Joint Anti-Fascist Refugee Committee v.

McGrath,

341 U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817 . . . . . . . . . 9

Keystone Bituminous Coal Ass’n v.

DeBenedictis,

480 U.S. 470 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Locan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

Lynch v. Household Finance Corp.,

405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 . . . . . . 8

Massachusetts Board of Retirement v. Murgia,

427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Meyer v. Nebraska,

62 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Miller v. Schoene,

276 U.S. 272 (1928) . . . . . . . . . . . . . . . . . . . . . 13, 14, 16

Nordlinger v. Hahn,

505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992) . . 19

Paul v. Davis,

424 U.S. 693 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary,

268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) . . 11

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reed v. Reed,

404 U.S. 71 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rogin v. Bensalem Township,

616 F.2d 680 (3d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . 9

v

Cited Authorities

Page

Schware v. Board of Bar Examiners,

353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) . . 18

Sellers v. School Board of Manassas Virginia,

141 F.3d 524 (4th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 19

Shuman v. Penn Manor School District,

2004 WL 1109506 (E.D. Pa. 2004) . . . . . . . . . . . . . . 17

Sniadach v. Family Finance Corp.,

395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 . . . . . 10

Stanley v. Illinois,

405 U.S. 645, 647, 92 S. Ct. 1208.

31 L. Ed. 2d 551 (1972). . . . . . . . . . . . . . . . . . . . . . . . . 11

Tahoe-Sierra Preservation Council, Inc., et al.,

v. Tahoe Regional Planning Agency, et al.,

122 S. Ct. 1465, 535 U.S. 302,

152 L. Ed. 2d 517 (2002) . . . . . . . . . . . . . . . . . . . . 15, 16

Terrace v. Thompson,

263 U.S. 197, 44 S. Ct., 68 L. Ed. 255 . . . . . . . . . . . . 11

Tillman v.

Lebanon County Correctional Facility,

221 F.3d 410 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 9

Truax v. Corrigan,

257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254,

27 A.L. R. 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi

Cited Authorities

Page

Truax v. Raich,

239 U.S. 33, 36 S. Ct. 7,

60 L. Ed. 131. L.R.A. 1916D,

543, Ann. Cas. 1917B, 283 . . . . . . . . . . . . . . . . . . . . . 11

Tuan Anh Nguyen v. I.N.S.,

533 U.S. 53 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United Artists Theatre Circuit, Inc. v.

Township of Warrington,

316 F.3d 392 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 6

Village of Willowbrook v. Olech,

528 U.S. 562, 120 S. Ct. 1073 (2000) . . . . . . . . . . . . . 17

Vitek v. Jones,

445 U.S. 480 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Whitney v. California,

274 U.S. 357 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Willner v. Committee on Character and Fitness,

373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963) . 18

Statutes

U.S. Const. Amend. XIV, § I . . . . . . . . . . . . . . . . . . . . . . 17

1

INTEREST OF AMICI CURIAE1

County of Butler (“Butler County”); County of Fayette

(“Fayette County”); County of Greene (“Greene County”);

and, County of Washington (“ Washington County

(hereinafter collectively the “Amici”) file this Brief as an

Amici Curiae in support of the Court granting Petitioners’

Petition for a Writ of Certiorari.

County of Butler is a Fourth Class County of

the Commonwealth of Pennsylvania w ith general

administrative office located at 124 West Diamond

Street, Butler, Pennsylvania 16001; County of Fayette

is a Fourth Class County of the Commonwealth of

Pennsylvania w ith general administrative offices

located at 61 East Main Street, Third Floor, Uniontown,

Pennsylvania 15401; County of Greene is a Sixth Class

County of the Commonwealth of Pennsylvania with

general administrative offices located at 10 East High

Street, Waynesburg, Pennsylvania 15370; and County of

Washington is a Fourth Class County of the Commonwealth

of Pennsylvania with general administrative offices located

at 100 West Beau Street, Washington, Pennsylvania 15301.

These Counties are political subdivisions of the

Commonwealth of Pennsylvania and, as such, are

generally responsible for the affairs, legislation and

1. No Counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae, or their counsel made a

monetary contribution to the brief’s preparation or submission.

The parties were timely notified of amici curiae’s intention to file

this brief. Petitioners and Respondents gave their consent.

2

general laws applicable to their respective geographical

areas, including all matters related to the health, safety,

welfare, and economic well-being of their residents.

Further, each elected official of these Counties has taken a

solemn oath to support, obey and defend the Constitution

of the United States of America.

Each of the aforesaid A mici are affected by

Respondents’ Orders, as the Orders impact their respective

authority to govern their respective geographical areas.

SUMMARY OF THE ARGUMENT

“I know no safe depository of the ultimate powers

of the society but the people themselves; and if we think

them not enlightened enough to exercise their control with

a wholesome discretion, the remedy is not to take it from

them, but to inform their discretion by education. This

is the true corrective of abuses of constitutional power.”

Thomas Jefferson, Letters of Thomas Jefferson

Petitioners’ Petition for Writ of Certiorari, if granted,

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. All the states have implemented to a greater or

lesser extent restrictions upon their citizens in response to

the COVID-19 virus. The Commonwealth of Pennsylvania,

by and through, its Governor and the exercise of the

Governor’s authority to issue executive orders; and, its

Secretary of Health and the exercise of the Secretary’s

authority to issue orders, has substantially restricted the

rights of its citizens under the Constitution of the United

3

States of America, including, but not limited to, the rights

enumerated in the First, Fourth, Fifth and Fourteenth

Amendments.

The Court’s prior jurisprudence provides some legal

guidance to address the unique circumstances associated

with the COVID-19 world-wide pandemic. However, the

unprecedented nature of this pandemic in modern society

has been used to justify extraordinary limitations upon

the rights of its citizens which engender fundamental

constitutional issues that cannot be adequately addressed

by the Court’s existing jurisprudence. As such, the

Court’s review of this matter is essential to protect and

preserve the constitutional rights of the citizens of the

Commonwealth of Pennsylvania and the United States

of America.

“They who can give up essential liberty to obtain a

little temporary safety deserve neither liberty nor safety.”

Benjamin Franklin, Memoirs of the life & writings of

Benjamin Franklin

Wherefore, the good citizens of the Commonwealth of

Pennsylvania, by and through the aforesaid Amici submit

the within Brief of Amici Curiae in support of Petitioners’

Petition for Writ of Certiorari and implore this Honorable

Court to grant the relief sought therein.

4

ARGUMENT

A. Respondents’ Orders violate the Substantive

Due Process provisions of the United States

Constitution.

The Fourteenth Amendment to the Constitution

forbids a state from depriving anyone of life, liberty, or

property without due process of law. Without a deprivation

of life, liberty or property, there can be no due process

claim. See Board of Regents v. Roth, 408 U.S. 564, 570-71,

92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Gomez v. Toledo, 446

U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Finley

v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir.1996); Federico v.

Board of Educ., 955 F.Supp. 194, 198-99 (S.D.N.Y.1997).

The substantive component of the Due Process Clause

guarantees that “all fundamental rights comprised within

the term liberty are protected by the Federal Constitution

from invasion by the States.” Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847

(1992) (quoting Whitney v. California, 274 U.S. 357, 373

(1927)). Although the “outer limits of the substantive

sphere of liberty which the Fourteenth Amendment

protects” have not been defined, id. at 848, certain

protected liberties fall within the ambit of protection.

Thus, those to whom the Amendment applies have a right

to be free from bodily restraint but also the right . . . to

contract, to engage in any of the common occupations of

life, to acquire useful knowledge, to marry, establish a

home and bring up children, to worship God according

to the dictates of [their] own conscience[s], and generally

enjoy those privileges long recognized . . . as essential to

the orderly pursuit of happiness by free men. Board of

5

Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer

v. Nebraska, 262 U.S. 390, 399 (1923)).

In determining whether a plaintiff has a viable

substantive due process claim, courts must be mindful of

the Supreme Court’s commands in addressing the interplay

of constitutional and state tort law. Boyanowski v. Capital

Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir. 2000).

First, the Fourteenth Amendment is not “a font of tort law

to be superimposed upon whatever systems may already

be administered by the States.” Paul v. Davis, 424 U.S.

693, 701 (1976). Second, it must be remembered that “[a]

s a general matter, the [Supreme] Court has always been

reluctant to expand the concept of substantive due process

because guideposts for responsible decision making in this

unchartered area are scarce and open-ended. The doctrine

of judicial self-restraint requires us to exercise the utmost

care whenever we are asked to break new ground in this

field.” Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992). In Brozusky v. Hanover Township, 222 F.Supp.2d

606 (M.D.Pa.2002), the Court stated, “Consistent with

its reluctance to expand the concept of substantive due

process, the Supreme Court refused to sanction liability

against a municipal defendant on the theory that it had

a “ ‘custom and policy of deliberate indifference toward

the safety of its employees.’ “ Collins, 503 U.S. at 117. Id.

at 611.

When examining the conduct of governmental entities

and officials, “only the most egregious official conduct can

be said to be ‘arbitrary in the constitutional sense . . ..’”

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1992).

The Supreme Court has “for half a century now . . . spoken

of the cognizable level of executive abuse of power as that

6

which shocks the conscience.” Id. Determining whether

the challenged action rises to this level has been described

as a “threshold” question in a challenge to governmental

action. Id. at 847 n.8. The Third Circuit held that the

“shocks the conscience” standard applies to substantive

due process claims. United Artists Theatre Circuit, Inc.

v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003).

“Since Lewis our cases have repeatedly acknowledged

that executive action violates substantive due process only

when it shocks the conscience…” Id. at 399, 400.

In this case, it is clear that the Governor’s actions

“shocks the conscious.” One should be shocked to learn

that the Governor of Pennsylvania ordered that all

businesses of a certain type or character were ordered

to be closed, or the business location closed, unless such

business was a “life-sustaining” business. The Governor

decided by fiat what was life-sustaining and what was

not life-sustaining. 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.

Recently, the Governor announced a phased reopening

plan using a three-phase matrix and announced that

the Business Shutdown Order would be relaxed in

some counties within the Commonwealth, not including

Butler, Washington and Greene Counties, beginning

7

May 8, 2020 (the “April Announcement”). Four of Butler

County’s neighboring Counties with similar population

characteristic will be allowed to partially reopen as of

May 8, 2020, but Butler, Fayette, Washington and Greene

Counties cannot reopen as the Business Shutdown Order

will remain in effect.

The Governor announced that he was partnering with

Carnegie Mellon University to create a data-driven tool

to aid in decisions to reopen counties. The Respondents

do not set forth with particularity what factors are

considered, and provide citizens no means to challenge

or appeal the Governor’s decision. The Respondents’

classification of what counties may reopen on May 8, 2020,

is arbitrary and capricious.

The Business Shutdow n Order, and the April

Guidelines issued by Respondents, constitute arbitrary,

capricious, irrational and abusive conduct that interferes

with Petitioners’ liberty and property interests protected

by the due process clause of the Fourteenth Amendment

to the United States Constitution.

As described herein, (in the section concerning Equal

Protection), the Governor’s intention of phased easing

of restrictions on a county-by-county basis constitutes

official policy, custom and practice of the Commonwealth

of Pennsylvania. And, such stated intention shocks the

conscience. Indeed, a matter as arbitrary as the placement

of a county line will determine whether one citizen of

the Commonwealth is permitted to pursue that citizen’s

livelihood and be free to pursue their lawful employment

as they shall determine and be free of governmental

interference.

8

The Governor’s arbitrary designation of county lines

to determine which citizens of this Commonwealth are

able to engage in their occupations and, therefore, earn

income to provide for their families, is unconstitutional

and a violation of the substantive due process clause of

the Fourteenth Amendment.

B. Respondents’ actions violate the Procedural

Due Process provisions of the United States

Constitution.

The Fourteenth Amendment to the United States

Constitution forbids a state from depriving anyone of life,

liberty, or property without due process of law.

The Business Shutdown Order and subsequent April

guidance on easing of the Stay at Home Order provided

by Respondents, do not provide due process protections

set forth herein. The Governor’s shut down of the waiver

review process with the Department of Community

and Economic Development (“DCED”), without any

explanation, constitutes an unexplained inconsistency and

is arbitrary and capricious.

“… the prohibition against the deprivation of property

without due process of law ref lects the high value,

embedded in our constitutional and political history, that

we place on a person’s right to enjoy what is his, free of

governmental interference. Fuentes v. Shevin, et al., 407

U.S. 67, 81, 92 S.Ct. 1983, 32 Ed.2d 556 (1972); citing,

Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92

S.Ct. 1113, 1122, 31 L.Ed.2d 424.

9

The Court has consistently recognized that “fairness

can rarely be obtained by secret, one-sided determination

of facts decisive of rights. . . . [And n]o better instrument

has been devised for arriving at truth than to give a person

in jeopardy of serious loss notice of the case against him

and opportunity to meet it.” Fuentes v. Shevin, et al., 407

U.S. 67, 81, 92 S.Ct. 1983, 32 Ed.2d 556 (1972); citing, Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, 170 -172, 71 S.Ct. 624, 647, 95 L.Ed. 817 (Frankfurter,

J., concurring).

It is clear that the Petitioners have a fundamental

property right to use and enjoy land in which they hold an

interest. Horne v. Department of Agriculture, 576 U.S.

350, 135 S. Ct. at 2426, L.Ed.2d 388 (2015). Government

actors must provide adequate due process procedures

before a citizen can be divested of fundamental rights,

such as property rights. Locan v. Zimmerman Brush Co.,

455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480,

495-96 (1980) Tillman v. Lebanon County Correctional

Facility, 221 F.3d 410, 421 (3rd Cir. 2000). The procedural

due process claim of private interests must be weighed

against the burdens of providing procedures on the

government. Rogin v. Bensalem Township, 616 F.2d 680,

693-694 (3rd Cir. 1980).

Procedural due process analysis requires consideration

of whether the following has been provided: notice of the

governmental action; a neutral arbiter; an opportunity

to make an oral presentation; a means of presenting

evidence; the ability to cross-examine witnesses and

respond to written evidence; the right to representation

by legal counsel; and, a decision based on the record with

a statement of the reasons in support of the decision. Id.

at 694.

10

The Governor argues that the nature of the COVID-19

pandemic justified the need for quick action. White this

may be true, it is also true that the Governor’s initial

business closure Order occurred on March 19, 2020. As

of the date of the submission of this Brief, after May 13,

2020, the Governor has provided none of the elements

listed herein in order to safeguard procedural due process.

It has been more than forty-six (46) days with seemingly

no effort at all from the Governor to provide the citizens

of the Commonwealth of Pennsylvania even a modicum

of due process relative to the closure of their business

property and, indeed, taking of their property.

It is well settled law that “a temporary, nonfinal

deprivation of property is nonetheless a ‘deprivation’ in the

terms of the Fourteenth Amendment.” Fuentes v. Shevin,

et al., 407 U.S. 67, 84, 92 S.Ct. 1983, 32 Ed.2d 556 (1972);

citing, Sniadach v. Family Finance Corp., 395 U.S. 337,

89 S.Ct. 1820, 23 L.Ed.2d 349.

The Governor has argued that the waiver process

instituted by the Order ameliorates the due process

violations. This is simply not the case given the fact

that the waiver request was to be submitted after the

taking took place. There was no guidance provided as

to how the waiver requests were going to be evaluated;

no in person hearing; no neutral arbiter; and, no means

to cross examine witnesses because the process did not

even contemplated the witness testimony. Finally, the

waiver process lacked written decisions supported by

reasoned opinons based upon the record created during

the proceedings.

11

At its core, procedural due process requires notice

of allegations and an opportunity to respond to those

allegations. Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985).

For the same reasons, the Governor’s stated intentions

concerning the easing of restrictions in “yellow” counties

leaves no recourse for the citizens left in the “red”

counties, even notwithstanding the fact that individuals

and businesses in the “red” counties are just as capable

as businesses in the “yellow” counties of following the

Centers for Disease Control (“CDC’) guidelines and the

Governor’s guidelines relative to social distancing. “This

Court has not . . . embraced the general proposition that a

wrong may be done if it can be undone.” Stanley v. Illinois,

405 U.S. 645, 647, 92 S.Ct. 1208. 31 L.Ed.2d 551 (1972).

“But they have business and property for which they

claim protection. These are threatened with destruction

through the unwarranted compulsion which appellants

are exercising over present and prospective patrons of

their schools. And this court has gone very far to protect

against loss threatened by such action.” Pierce v. Society

of the Sisters of the Holy Names of Jesus and Mary, 268

U.S. 510, 513-514, 45 S.Ct. 571, 573-574, 69 L.ed.1070

(1925); citing, Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60

L.Ed. 131. L.R.A. 1916D,543, Ann. Cas. 1917B,283; Truax

v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27

A.L. R. 375; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct.

68 L.Ed. 255.

These actions by the Governor are wholly inadequate

and in direct violation of the procedural due process rights

required by the United States Constitution. Accordingly,

12

the Petitioners’ Petition for a Writ of Certiorari should be

granted by this Hoborable Court.

C. Respondents’ Orders work as a taking of private

property by the Commonwealth of Pennsylvania.

In their Response to Petitioners’ Application to Stay,

Respondents argue that a taking has not occurred and

cite to Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470 (1987), as authority for the legal proposition

that “a State need not provide compensation when it

diminishes or destroys the value of property by stopping

illegal activity or abating a public nuisance. It is hard to

image a different rule that would be consistent with the

maxim ‘sic utere tuo ut alienum non laetas’ (use your own

property in such manner as not to injure that of another).”

Respondents’ Response, p. 22.

In Keystone Bituminous, the Court addressed the

issue of whether a Subsidence Act’s regulation of coal

mining with the intent to eliminate subsidence of the

surface constituted an unconstitutional taking because of

the Act’s impact on the commercial practicability of such

mining. As part of the Court’s analysis, the Keystone

Bituminous Court reviewed several cases involving the

use of police powers to abate public nuisances and other

illegal activities. Respondents’ reliance upon Keystone

Bituminous and, more importantly, Respondents’

willingness to equate Petitions’ lawful business operations

to public nuisances and illegal activity demonstrates the

flawed rationale behind the Governor’s Order.

Unlike the established connection between coal

mining and surface subsidence in Keystone Bituminous,

13

the Governor’s Order prohibits Applicants’ legal business

operations with no evidence that the business operations

are or might be the source of past or future COVID-19

infections. To the contrary, Respondents’ simply presume,

based solely upon the geographic location of Petitioners’

business operations, that Petitioners, Petitioners’ business

operations and employees are public nuisances and, as

such, the Governor unilaterally declared such business

operations to be illegal. There is no evidence to establish

that any of the Petitioners or any of the Petitioners’

employees are infected with the COVID 19 virus. 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 lifesustaining businesses or the general population to transmit

the COVID-19 virus. The Petitioners in this case are not

responsible for the transmission or increased infection rate

of the COVID-19 virus in the Commonwealth. Further,

Respondents’ Orders demonstrate that the COVID-19

virus will continue to be transmitted even if Petitioners’

businesses are closed by the Commonwealth.

In further support of its Response, Respondents

cite to Miller v. Schoene, 276 U.S. 272 (1928), in which

the Court held that the Commonwealth of Virginia was

not required to compensate a property owner under the

Taking Clause for the destruction of diseased cedar trees.

The Commonwealth ordered the diseased cedar trees to

be destroyed to prevent the potential spread of the disease

to other trees in the area. Respondent asserts “If the

action to save trees in Miller did not require compensation,

then certainly the Governor’s Order to save lives cannot

constitute a taking which requires compensation.”

Respondents’ Response, p. 23.

14

Respondents’ reliance upon Miller and, more

impor tantly, Respondents’ failure to disting uish

between diseased trees and the operation of Petitioners’

businesses, demonstrates the flawed rationale used to

support the Governor’s Order. First, unlike the cedar

trees at issue in Miller, there is no evidence to indicate

that Petitioners or Petitioners’ employees are infected

with the COVID-19 virus. Secondly, Respondents’ reliance

upon Miller illustrates the arbitrary and capricious nature

of Respondents’ Order. Respondents have presumed,

based solely upon the geographic location of Petitioners’

business operations, that Petitioners and Petitioners’

employees are more likely to be infected with the COVID

19; and, as such, are more likely to transmit the COVID-19

virus to others. Thirdly, unlike the Virginia statute relied

upon in Miller, which required evidence that the subject

trees were or might be the source (host plant) of the

communicable disease, the Governor’s Order prohibits

Petitioners’ business operations with no evidence that

the business operations are or might be the source of

past or future COVID-19 infections. Infection rates have

increased and vary throughout the Commonwealth despite

the Governor’s Commonwealth-wide Orders regulating

business and non-business activities. Fourth, the 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 “lifesustaining” and “non-life-sustaining” business activities.

Finally, unlike the destruction of infected trees, the

Governor’s Order acknowledges that the full or partial

closure of businesses which might very well destroy the

businesses, will not eliminate the transmission of the

COVID-19 virus.

15

In addition to Miller, Respondents rely heavily upon

Tahoe-Sierra Preservation Council, Inc., et al., v. Tahoe

Regional Planning Agency, et. al., 122 S.Ct. 1465, 535

U.S. 302, 152 L.Ed.2d 517 (2002). The Tahoe-Sierra

Court held that the government’s decision to restrict

development surrounding Lake Tahoe for a period of

thirty-two (32) months, while land use restrictions were

being implemented, did not constitute a taking because

the nature of the restriction did not cause a diminution

in the value of the property. Respondents’ reliance upon

the temporary nature of the restrictions in Tahoe-Sierra

is misplaced. Unlike the property interest at issue in

Tahoe-Sierra, which merely involved the temporary delay

in the development of owner’s interest in real property,

the Governor’s Orders adversely impact all aspects of

Petitioners’ on-going business operations.

Further, it is relevant to note that Respondents have

effectively acknowledged that the Governor’s Orders have

resulted in the loss of the use of Petitioners’ business

operations. As cited by Respondents, “the Pennsylvania

Supreme Court recognized that the Governor’s Order

‘results in only a temporary loss of the use of the

Applicants’ businesses premises’ in order to ‘protect the

lives and health of millions of Pennsylvania citizens[.]”

Respondents’ Response, p. 23, citing the Majority

Opinion, at 35-37.

To characterize Respondents’ Orders as merely

involving the temporary loss of one’s interest in real

property is factually inaccurate. As the Tahoe-Sierra

Court acknowledged, the “regulatory taking analysis

outside the context of a physical or other per se taking

is more complex.” Tahoe-Sierra, 535 U.S. at 322 N, 17,

16

122 S.Ct. 1465. “Regulatory takings jurisprudence ... is

characterized by ‘essentially ad hoc, factual inquiries,’

designed to allow ‘careful examination and weighing of

all the relevant circumstances.’” Id. at 321, 122 S.Ct. 1465

(citations omitted). As articled in Tahoe-Sierra, 535 U.S.

at 322 N, 17, 122 S.Ct. 1465, there is no set formula for

evaluating regulatory takings claims, courts typically

consider whether the restriction has risen to the level of

a compensable taking under the multi-factor balancing

test articulated in Penn Central, 438 U.S. at 124, 98 S.Ct.

2646; Lingle, 544 U.S. at 538–39, 125 S.Ct. 2074 (citations

omitted).

Unlike the facts in Tahoe-Sierra, s’ return on its

business investment has not been merely delayed.

Respondents’ Orders are more analogous to the Virginia

statute in Miller. Like the cedar trees, Applicants’

businesses are in the process of being destroyed.

Like the Pennsylvania Supreme Court, Respondents

assume that Petitioners own the real property, equipment

and fixtures within their businesses. However, many

businesses impacted by Respondents’ Orders lease most,

if not all, of the real property, equipment and fixtures

necessary to operate their businesses. In either event,

Petitioners have incurred tremendous financial costs

associated with purchasing or leasing an appropriate

physical structure to meet business needs; the purchase

or lease of equipment for the operation of the business;

the purchase of product to be used in the operation of the

business; the screening, hiring and training the business’

employees; the marketing of the business; and, the arduous

process of establishing a customer base sufficient to

sustain the business. All of which are necessary to realize

17

a profit or return on Petitioners’ business investment and

all of which have been taken by Respondents’ Orders in

violation of the Taking Clause of the Fifth Amendment.

D. Respondents’ Orders violate the Equal Protection

provisions of the United States Constitution.

Under the Equal Protection clause, Section I of the

Fourteenth Amendment, “[n]o State shall . . . deny to

any person within its jurisdiction the equal protection

of the laws.” U.S.C.A. Const. Amend. XIV, § I; City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

The purpose of the Equal Protection Clause of the

Fourteenth Amendment is to secure every person within

a state’s jurisdiction against intentional and arbitrary

discrimination, whether occasioned by express terms

of a statute or by its improper execution through duly

constituted agents. Village of Willowbrook v. Olech, 528

U.S. 562, 564, 120 S. Ct. 1073 (2000). Generally, to state

a claim based on the Equal Protection clause, a plaintiff

must allege that he is a “member of a protected class,

was similarly situated to members of an unprotected

class, and was treated differently from the unprotected

class.” Shuman v. Penn Manor School District, 2004 WL

1109506, *7 (E.D. Pa 2004).

The first issue in the Equal Protection analysis is

the determination of which standard of review applies to

Petitioners’ claim. “It is generally accepted by both the

courts and commentators that in cases involving equal

protection challenges that Supreme Court applies three

levels of review in ruling on the validity of the challenged

statute. The three tiers of review are the rational basis

test, intermediate or ‘middle-tier’ scrutiny and strict

18

scrutiny.” Brown v. Heckler, 589 F.Supp. 985, 989 (E.D. Pa.

1984) (citations omitted). In general, the term “heightened

scrutiny” refers to either level of review above rational

basis. Brown supra at 989.

The Court uses a strict scrutiny standard if a

classification impermissibly interferes with the exercise of

a fundamental right, such as the right to vote or procreate,

or if a suspect class is disadvantaged. Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307 (1976). A

suspect class is one that is “saddled with disabilities, or

subjected to such a position of political powerlessness as to

command extraordinary protection from the majoritarian

political process.” Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 313-314 (1976). Racial or ancestral

minorities as well as alienage have qualified as classes or

groups which clearly qualify as suspect, requiring strict

scrutiny. Brown, at 989. “A State cannot exclude a person

from the practice of law or from any other occupation in a

manner or for reasons that contravene the Due Process or

Equal Protection Clause of the Fourteenth Amendment.”

Willner v. Committee on Character and Fitness, 373 U.S.

96, 101, 83 S.Ct. 1175,1180, 10 L.Ed.2d 224 (1963); citing,

Schware v. Board of Bar Examiners, 353 U.S. 232, 238239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).

Under strict scrutiny, the government has the burden

of proving that the suspect classifications “are narrowly

tailored measures that further compelling governmental

interests.” Adarand Constructors, Inc. v. Peña, 515 U.S.

200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).

If the plaintiff is not a member of a suspect class

and there is no claimed interference with a fundamental

19

right, the Court should analyze the claim under a rational

basis standard. Sellers v. School Board of Manassas

Virginia, 141 F.3d 524 (4th Cir. 1988). This test provides

a presumption of constitutionality and only requires that

the law or action have a legitimate purpose and a rational

relationship to the fulfillment of that purpose. Brown,

supra.

Int er med i at e, or m idd le -t ier scr ut i ny, fa l ls

somewhere between rational basis and strict scrutiny.

The Supreme Court articulated the standard by stating

that the challenged law must be “substantially related”

to “important governmental objectives.” Craig v. Boren,

429 U.S. 451 (1976). Previous Supreme Court cases have

established that classifications that distinguish between

males and females are subject to this middle-tier scrutiny

under the Equal Protection clause. Craig, 429 U.S. at 457;

Reed v. Reed, 404 U.S. 71, 75 (1971). Gender classifications

must serve important governmental objections and must

be substantially related to those objectives in order to

withstand constitutional challenge. Craig, at 457.

These different standards of equal protection review

set different bars for the magnitude of the governmental

interest that justifies the statutory classification.

Heightened scrutiny demands that the governmental

interest served by the classification be “important,” see,

e.g., Virginia, supra, at 533, 116 S.Ct. 2264, whereas

rational basis scrutiny requires only that the end be

“legitimate,” see, e.g., Nordlinger v. Hahn, 505 U.S. 1,

10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Strict scrutiny

requires that the government interest be “compelling.”

Adarand, supra, at 227.

20

“The most important difference between heightened

scrutiny and rational basis review, of course, is the

required fit between the means employed and the ends

served. Under heightened scrutiny, the discriminatory

means must be “substantially related” to an actual and

important governmental interest. Under rational basis

scrutiny, the means need only be “rationally related” to a

conceivable and legitimate state end.” Tuan Anh Nguyen

v. I.N.S., 533 US 53, 77 (2001) (citations omitted). Strict

scrutiny requires that the means be “narrowly tailored”

to further a compelling governmental interest. Adarand,

supra, at 227.

Here, it is clear that the Governor’s actions in initially

closing what he deemed to be “non-life sustaining”

businesses was a violation of the Equal Protection Clause,

no matter what level of scrutiny is used. Likewise, the

Governor’s stated intention to open up some counties to

“yellow” status (easing of the shutdown restrictions), but

not other counties, is a violation of Equal Protection.

1.

Life Sustaining v. Non-Life Sustaining

The Governor’s actions in his business classification

system are arbitrary and irrational. There has never

been such a classification of business activity before and

Respondents’ attempts to classify such categories is

nothing more than ipse dixit. That is, the classification of

business types literally put some people out of business

because of the random classification. For example, the

Governor decided that an accounting practice was “lifesustaining” and, therefore, that business was permitted

to continue to operate from the office location. On the

contrary, most law firm services were determined by the

21

Governor to be “non-life-sustaining.” Accordingly, the

Governor determined that it was more important, for

example, for an accountant to prepare financial documents

than an attorney to prepare financial documents. Or, more

specifically, more important for an accountant to perform

such services at the accountant’s business location than

for an attorney to do the same thing from the attorney’s

business location.

Moreover, the Governor’s arbitrary and irrational

classification in this example completely ignores the

“social distancing” aspect of this classification, something

that is one stated intention of the Governor’s stay at home

order. Indeed, the Governor’s Order provides that an

accounting firm of dozens, if not hundreds, of employees

were permitted to continue to work from their regular

location while a sole practitioner attorney who performs

similar type services, was required to “telework” or

telecommute. Such distinctions are the very definition of

arbitrary and irrational classifications.

Finally, it is also important to note that many of

the businesses that the Governer classified as non-lifesustaining can only be carried on at the location of the

business. In other words, that business cannot be operated

by “tele-work” or tele-commuting means. For example, the

Governor declared that business in the field of real estate

agents and brokers are not life sustaining and, therefore,

must be closed in order to advance the Governor’s goal

of “social distancing.” However, that classification itself

is arbitrary and irrational as a realtor would be perfectly

capable of carrying on a real estate practice with very

limited client contact, e.g. one to two customers visiting

or viewing a vacant piece of real estate, while maintaining

22

a six-foot distance, while wearing a mask, and while not

touching. On the contrary, a title insurance company,

closing a real estate transaction on the same type of

property that the realtor is prohibited from showing, are

legally permitted to congregate in offices, coming into

close contact with others, in order to finalize a real estate

transaction.

One must surely agree that shelter from the elements

is necessary to sustain life. Likewise, the act of facilitating

the acquisition of shelter is necessary to sustain life.

However, the act of hiring a realtor to assist in the

acquisition of shelter is not life sustaining, according to

the Governor. This is not rational - indeed it seems to be

the very definition of arbitrary action.

2.

The Governor’s plan to ease restrictions is

arbitrary and irrational.

On May 1, 2020, the Governor announced plans

to begin easing stay at home restrictions previously

implemented. Said plan would ease the restrictions on

some counties, and not others. The easing of restrictions

in some counties, and not in other counties, is not rational

and is an arbitrary exercise of the Governor’s executive

power.

The Respondents’ plan is nothing more than an

arbitrary decision-making tool that relies on the

speculations of the Respondents. Here, the Governor

has announced a plan to designate some counties as

“yellow” and intends to permit some businesses to reopen, with social distancing guidelines. The designation

of these counties is based upon an arbitrary county line

23

demarcation. As such, there inevitably will be some

businesses that will re-open in the “yellow” county while

the same type of business, across the county line in a

“red” county, will continue to be subject to the Governor’s

closure order. This is arbitrary and irrational. Customers

in need of the services to be supplied by these businesses

will naturally, and be required to, frequent the business

in the yellow county because the business in the red

county will remain closed. This would mean that only

the business in the yellow county would be available to

residents of all counties. How the Governor’s stated goal

of social distancing or slowing the spread of the virus is

advanced by this artificial demarcation is left unstated.

Counsel for the Governor in its response to Petitioners’

Motion for Stay terms these decisions “policy decisions”

as opposed to legal decisions. This argument is a fine

distinction for a lawyer to make in a brief, but is of little

comfort to the individual whose business is located in a

red county and happens to be across a county line from

a competing business in a yellow county. The individual,

with the same type of business, with the same number of

employees, with the same number of would be customers,

with the same health considerations in place, and with

all other factors being equal, is left feeling that he is not

being treated the same as his business competitor. And, he

is not because of the Governor’s arbitrary and irrational

designations.

For these reasons, this Court should grant the

Petitioner’s Petition for Writ of Certiorari.

24

CONCLUSION

For the reasons set forth herein, Amici Curiae hereby

asks this Honorable Court to grant Petitioners’ Petition

for Writ of Certiorari.

Respectfully submitted,

Thomas W. King, III

Counsel of Record

Dillon McCandless King

Coulter & Graham, LLP

128 West Cunningham Street

Butler, PA 16001

(724) 283-2200

tking@dmkcg.com

Counsel for Amici Curiae

Date: May 19, 2020